Delhi District Court
State vs . Mohd. Faisal on 21 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-08,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
::: JUDGMENT :::
IN THE MATTER OF:
STATE Vs. MOHD. FAISAL CR CASE No. 4104/2022 FIR NUMBER: 118/2022 UNDER SECTION: 12/9/55 Delhi Gambling Act POLICE STATION: JAMIA NAGAR A. CNR No. of the Case : DLSE020113352022 B. Date of Institution : 06.05.2022 C. Date of Commission of : 08.02.2022 Offence D. Name of the Complainant : Ct. Raman Singh, Belt No. 2462/SE E. Name of the Accused, his : Mohd. Faisal, S/o Sh. Mohd. Wahid Parentage & Addresses Hussain, R/o B-78, Gali No. 5 near Surya Mandir F. Offence complained of : 12/9/55 Delhi Public Gambling Act G. Plea of the Accused : Pleaded not guilty and claimed trial H. Judgment reserved on : 02.08.2023 I. Date of Judgment : 21.08.2023 J. Final Order : Acquittal ACCUSED DETAILS:Rank of the accused 1
Name of the accused Mohd Faisal
Date of Arrest Bound down on 09.02.2022
Date of release on Bail --
Offence charged with 12/9/55 Delhi Public Gambling Act
Whether Acquitted/ convicted Acquittal
Sentence Imposed --
Period of detention undergone --
during trial (for section 428 CrPC)
FIR No. 118/2022 State Vs. Mohd Faisal Page no. 1/ 13
LIST OF PROSECUTION WITNESS:
Sr.No. Name of the Witness
1 HC Raman
2 HC Mahender Singh
3 Ct. Atal Kumar
4 ASI Ramvir Singh
LIST OF DOCUMENTS (PROVED BY THE PROSECUTION):
Sr. No. Description of documents Exh. No.
1 Copy of FIR Ex. A-1
2 Currency Notes Ex. S-1
(Colly)
3 Receipts Ex. S-2
(Colly)
4 Complaint Ex. PW1/A
5 Seizure memo Ex. PW1/B
6 Disclosure Statement of accused Ex. PW1/C
7 Site Plan Ex. PW1/D
8 Notice u/s 41A CrPC Ex. PW4/A
9 Pabandinama Ex. PW4/B
DEFENCE WITNESS: None
LIST OF DOCUMENTS (PROVED BY DEFENCE): NA
Factual Background:
1. Briefly stated, the case of the prosecution against the accused is that on 08.02.2022, HC Raman along with Ct. Atal Kumar was on patrolling duty. At about 09.45 PM, when they reached near Jamuna Pusta, they saw one person and on his cursory search, Rs 540/- and few receipts pertaining to satta were recovered from his possession.
Rs. 540 was in the form of 5 currency note of Rs. 100 and 4 currency notes of Rs. 10. They have also recovered 4 perchi from the possession of the accused. On that basis, the present FIR was registered against the accused. Upon completion of investigation, charge sheet under section 12/9/55 Delhi Public Gambling Act was filed and the accused was sent for trial.
Court Proceedings:
2. The ld. Predecessor of this court took cognizance of the offence on 06.05.2022 and issued process against the accused. Pursuant to the FIR No. 118/2022 State Vs. Mohd Faisal Page no. 2/ 13 appearance of the accused, he was supplied with the copy of chargesheet in compliance of Section 207 CrPC.
Charge:
3. Upon hearing the arguments, vide order dated 30.07.2022, notice under section 12/9/55 Delhi Public Gambling Act was ordered to be framed against the accused. The accused pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
Prosecution Evidence:
4. In order to establish its case against the accused persons, prosecution examined 4 witnesses namely HC Raman ('PW1'), HC Mahender Singh ('PW2'), Ct. Atal Kumar ('PW3') and ASI Ramvir Singh ('PW4').
5. PW1/ HC Raman deposed that on 08.02.2022, he was posted at PS Jamia Nagar as constable. On that day, he along with Ct. Atal were on patrolling duty in their beat area i.e. beat no.1. At about 9.45 pm, when they reached near Jamuna Pusta, near kudedan, they saw one person. On suspicion, they asked his name. That person disclosed his name as Faisal. They took his cursory search and Rs.540/- and few receipts pertaining to satta were recovered from his possession.
PW1/HC Raman informed the DO about the same. Thereafter, IO/HC Ramveer along with HC Mahinder reached at the spot. PW1 gave his statement to IO/HC Ramvir Singh. IO seized the aforesaid Rs.540/- and receipts vide memo Ex.PW1/B. IO also recorded disclosure statement of accused Faisal Ex.PW1/C. IO prepared the site plan at the instance of PW1. The same is Ex.PW1/D. Witness has correctly identified the accused in court. During evidence, one unsealed envelope is produced through MHCM. It is opened with the permission of the court. It contains Rs.540/- (consisting of one Rs.500/- note and four notes of Rs.10/- each) which is shown to the witness who identified it to be the same Rs.540/- (consisting of one Rs.500/- note and four notes of Rs.10/- each) which were recovered FIR No. 118/2022 State Vs. Mohd Faisal Page no. 3/ 13 from the accused. Rs.540/- (consisting of one Rs.500/- note and four notes of Rs.10/- each) are Ex. S1(Colly).
6. During cross examination PW1 deposed that he had made DD Entry of his departure to beat patrolling area. He does not remember the number of the said DD Entry. He was patrolling in the area on the personal bike of Ct. Atal. He does not remember the make/ number of the said bike. He admitted that there was no mention of any satta/gambling, name of organiser or any stamp on the receipts seized from the accused. He denied that no receipts were recovered from the possession of accused. The Jamuna Pusta near kudedan is an isolated area. IO has not secured the presence of public witness in his presence. He does not know whether IO had inquired from any public person in the present case. He admitted that the seized currency notes were not containing any specific mark. He admitted that the said currency notes are available in open market. He further admitted that the aforesaid seized notes and receipts were not sealed in his presence by the IO. He denied that they had asked some favours from the accused to which he did not obliged and that is why he/PW1 along with Ct. Atal falsely implicated the accused in connivance with IO. He denied that no such incident took place. He denied that accused has been falsely implicated in this case.
7. PW2/ HC Mahender Singh deposed that on 08.02.2022, he was posted at PS Jamia Nagar as head constable. On that day at about 10:00PM, DD No.96A was received by HC Ramvir regarding gambling at Yamuna Pusta. He along with HC Ramvir reached at the spot where Ct. Atal and Ct. Raman were present along with accused Faisal. Rs. 540/- and 4 parchi were recovered from the possession of accused Faisal and the same were given by Ct. Raman. HC Ramvir recorded the statement of Ct. Raman and prepared the tehrir. Tehrir was handed over to him and he was sent to PS for registration of FIR. After registration of FIR, he returned to the spot and handed over the FIR No. 118/2022 State Vs. Mohd Faisal Page no. 4/ 13 copy of FIR and original Rukka to HC Ramvir. IO bound down the accused Faisal. IO also recorded the disclosure statement of the accused Faisal. IO prepared the site plan already Ex.PW1/D. Thereafter IO recorded his statement. Accused was correctly identified by the witness. At that stage, one unsealed envelope is produced through MHCM. It is opened with the permission of the court. It contains Rs.540/- (consisting of one Rs.500/- note and four notes of Rs.10/- each) which is shown to the witness who identified it to be the same Rs.540/- (consisting of one Rs.500/- note and four notes of Rs.10/- each) which were recovered from the accused. Rs.540/- (consisting of one Rs.500/- note and four notes of Rs.10/- each) are already Ex. S1(Colly). It also contains 4 parchies, the same were shown to the witness and the witness identified them. The same are Ex. S2 (colly).
8. During cross examination, PW2 deposed that IO had not made any public witness in his presence. He does not know the number of recovered notes. He admitted that the notes of aforesaid denominations are easily available in the market. The spot is not a crowded area. IO had not asked in his presence about any syndicate running for gambling in the area. He reached at the spot at about 10:00PM. There were no public persons at the spot when they reached there. He admitted that the there was no mention of any satta/gambling, name of organiser or any stamp on the receipts seized from the accused. He denied that no receipts were recovered from the possession of accused. The Jamuna Pusta near kudedan is an isolated area. IO had not secured presence of any public witness in his presence. He does not know whether IO had inquired from any public person in the present case. He admitted that the seized currency notes were not containing any specific marks on the said seized currency notes. He admitted that the said currency notes are available in open market. He further admitted that the aforesaid seized notes and FIR No. 118/2022 State Vs. Mohd Faisal Page no. 5/ 13 receipts were not sealed in his presence by the IO. He denied that they had asked some favours from the accused to which he did not obliged and that is why he along with Ct. Atal falsely implicated the accused in connivance with IO. He denied that no such incident took place. He denied that accused has been falsely implicated in this case.
9. PW3/ Ct. Atal Kumar deposed that on 08.02.2022, he was posted at PS Jamia Nagar as constable. On that day, he along with Ct. Raman were on patrolling duty in their beat area i.e. beat no.1. At about 9.45 pm, when they reached near Jamuna Pusta, near kudedan, they saw one person. On suspicion they asked his name. That person disclosed his name as Faisal. They took his cursory search. Rs.540/- and four receipts pertaining to satta were recovered from his possession. Raman/PW1 informed the DO about the same. Thereafter, IO/HC Ramveer along with HC Mahinder reached at the spot. Ct. Raman gave his statement to IO/HC Ramvir Singh. IO seized the aforesaid Rs.540/- and receipts vide memo Ex.PW1/B. IO also recorded disclosure statement of accused Faisal Ex.PW1/C. IO prepared the site plan. The same is already Ex.PW1/D. IO bound down the accused Faisal. IO prepared the site plan already Ex.PW1/D. The case property was deposited in the Malkhana PS Jamia Nagar. Thereafter IO recorded his statement. Accused was correctly identified by the witness. At that stage, one unsealed envelope is produced through MHCM. It is opened with the permission of the court. It contains Rs.540/- (consisting of one Rs.500/- note and four notes of Rs.10/- each) which is shown to the witness who identified it to be the same Rs.540/- (consisting of one Rs.500/- note and four notes of Rs.10/- each) which were recovered from the accused. Rs.540/- (consisting of one Rs.500/- note and four notes of Rs.10/- each) are already Ex. S1(Colly). It also contains 4 parchies, the same were shown to the witness and the witness identified them and the same are Ex. S2 (colly).
FIR No. 118/2022 State Vs. Mohd Faisal Page no. 6/ 13
10. During cross examination, PW3 deposed that he had not made any DD Entry of his departure to beat patrolling area. He voluntarily deposed that it was routine patrolling duty and the DD entry for routine patrolling was done. He does not remember the number of the said DD Entry. He was patrolling in the area on the personal bike. He does not remember whose bike was that, he also does not remember the make/ number of the said bike. He admitted that there was no mention of any satta/gambling, name of organizer or any stamp on the receipts seized from the accused. He voluntarily deposed that there was mention of various numbers on the aforesaid parchi). He denied that no receipts were recovered from the possession of accused. The Jamuna Pusta near kudedan is an isolated area. IO had not secured presence of any public person in his presence. He does not know whether IO had inquired from any public person in the present case. He admitted that the seized currency notes were not containing any specific marks on the said seized currency notes. He admitted that the said currency notes are available in open market. He admitted that the aforesaid seized notes and receipts were not sealed in his presence by the IO. He does not remember whether the accused was all alone at the time of arrest. He does not know whether IO had enquired about any syndicate for running gambling in the area by the accused. He reached at the spot at about 09:30-09:40PM. He denied that they had asked some favours from the accused to which he did not obliged and that is why he along with Ct. Raman falsely implicated the accused in connivance with IO. He denied that no such incident took place. He denied that accused has been falsely implicated in this case.
11. PW4 ASI Ramvir Singh deposed that on 08.02.2022, he was informed through beat no. 1 that one Mohd Faisal near Jamuna Pusta near kudedaan was acting suspicious and Ct. Atal Kumar has recovered about Rs. 540/- and four receipts pertaining to satta (gambling) from his possession. He arrived at the spot. Ct. Raman FIR No. 118/2022 State Vs. Mohd Faisal Page no. 7/ 13 handed over the above-mentioned recovered belongings. After that Ct. Raman gave him complaint regarding this incident which is already Ex PW1/A bearing his signature at point B with regards to endorsement. Thereafter, he along with complainant Raman prepared site plan already Ex PW1/D. He also tried to search for CCTV cameras but could not find. On 09.02.2022, he bound down the accused by notice under section 41 A CrPC which is Ex PW4/A bearing his signature at point A. He also recorded disclosure statement of the accused which is already Ex PW1/C. He also seized Rs. 540/- and four receipts/chits vide seizure memo already Ex PW1/B bearing his signature at point B. Then, he released the accused on pabandinama Ex PW4/B bearing his signature at point A. Thereafter, he recorded statement of witnesses u/s 161 CrPC and on completion of investigation submitted the chargesheet. MHC(M) has produced a brown envelope which is unsealed and it is opened with the permission of the court. It contains Rs. 500 note and four Rs. 10 notes amounting to Rs. 540/-. The envelope also contains four chits/receipts which are handwritten bearing what appears to be lottery numbers. However, it bears no official insignia of any organisation related to lottery. The chits contain number 150, 100,200 and 340 (over written) and all four are in circle. It is already Ex S-1 colly and S-2 colly. The property is shown to the witness and he has correctly identified the same.
12. During cross examination PW4 has admitted that property is readily available because one of its currencies circulating in the market and another are handwritten chits which anyone can write on anything. He has admitted that no official insignia of any gambling group is marked on the chits. He denied that the area from where accused Mohd Faisal was found is a crowded area. He admitted that no public witnesses are cited. He voluntarily deposed that it was because they were not willing to come forward despite his insistence.
FIR No. 118/2022 State Vs. Mohd Faisal Page no. 8/ 13 He did not find whether accused Mohd Faisal was involved in other cases. He did not try to find out that whether other people were also involved with Faisal. He voluntarily deposed that, it was because nearby witnesses had refused to speak or converse about Mohd Faisal and they were afraid that they will be subject to the process of the court if they say anything regarding the case. He denied that he has planted this property on the accused. He denied that he was deposing falsely before the court in order to secure conviction of the accused. He denied that he has personal enmity with the accused person. He denied that he did not carry out a fair investigation in this case.
Admission u/s 294 CrPC
13. In terms of section 294 CrPC, accused has admitted copy of FIR, Ex. A-1.
Statement of the Accused:
14. Upon conclusion of prosecution evidence vide order dated 28.07.2023, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him, to which he pleaded innocence and claimed to have been falsely implicated. Accused has chosen not to lead any defence evidence.
Final Arguments:
15. Ld. APP has submitted that the case is proved beyond reasonable doubt as the witnesses have identified the case property and the accused during their deposition. He has submitted that due to non-cooperation by public witnesses it gets difficult to ensure their presence at the time of seizure of case property. It is also submitted that such offence is grave offence and the accused be convicted.
16. Per Contra, Ld. Counsel for defence has submitted that that accused is completely innocent and has been falsely implicated in the FIR No. 118/2022 State Vs. Mohd Faisal Page no. 9/ 13 present case and the alleged recovery of currency notes and perchis have been falsely planted upon him. It is further submitted that not joining the public witnesses despite availability and not serving any notice to them by the police officials cast shadow of doubt on the story of prosecution. At the end, she has submitted that the prosecution has completely failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
17. Submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record.
Discussion and Analysis:
18. In present case in charge-sheet it is mentioned that the currency recovered from the accused was 5 notes of Rs. 100 and 4 notes of Rs.10. The same was recovered and put in envelop. The said envelop was not sealed by the IO. But during evidence when currency notes were produced it was 1 note of Rs. 500 and 4 notes of Rs. 10 and all witnesses have unequivocally admitted that 1 note of Rs. 500 and 4 notes of rs. 10 was recovered from the possession of the accused.
19. Further, IO himself voluntarily deposed during evidence that he could not secure the presence of public witness because they were not willing to join despite his insistence. It proves that public were present at the spot.
20. The aforesaid flaw in the investigation makes the story of the prosecution unworthy of credit, specifically in the light of judgment in the case titled Anoop Joshi vs. State reported as 1992 (2) C. C. Cases 314 (HC) wherein Hon'ble High Court of Delhi observed:
"18. It is repeatedly laid down by this court that in such case, it should be shown by the police that sincere efforts had been made to join independent witnesses. In the present case, it is evident to note that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers FIR No. 118/2022 State Vs. Mohd Faisal Page no. 10/ 13 could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case, any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of laws while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
21. In view of the statement of the IO, the presence of independent witnesses cannot be ruled out at the spot. There is nothing in the testimony of prosecution witnesses that any sincere efforts were made by the IO to join independent witnesses in the proceedings/ investigation. The only explanation accorded that they have refused to join the proceedings and left the spot. Such an ordinary reply/ explanation of the witnesses does not support the case of prosecution.
Pertinent is the Section 100 (4) CrPC also mandates the police official conducting search to join two respectable persons of the society. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the local police in the present case cannot be ruled out. The aforesaid view of this court is further fortified by the observations made by Hon'ble Delhi High Court in Pawan Singh v. The Delhi Administration reported as 1989 Cri.L.J 127, wherein a similar view has been taken.
22. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P. reported as A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P. FIR No. 118/2022 State Vs. Mohd Faisal Page no. 11/ 13 reported as 1990(3)SCC 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra reported as (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab reported as (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
23. The fact that no independent witnesses were cited or examined, in circumstances when presence of public and independent person could have been easily secured, cast a serious doubt over the case of the prosecution. In view of what has been taken note by this court, the possibility of false implication of the accused cannot be ruled out. Further, the recovered currencies have been miraculously changed during evidence. No explanation was advanced by any witness and in fact their version is completely changed from the prosecution story on aspects of recovered currencies. Thus, in view of the foregoing analysis, this court is of the considered opinion that the aforesaid deficiencies in the case of the prosecution are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to him.
24. The prosecution has miserably failed to connect the accused to the alleged incident and therefore, remained doubtful on the involvement of the accused in the alleged incident. In view of the foregoing discussion, this court is of the opinion that there are reasonable doubts in the series of evidence put forth by the FIR No. 118/2022 State Vs. Mohd Faisal Page no. 12/ 13 prosecution. The case of the prosecution cannot be said to have been proved beyond reasonable doubt in any manner.
Decision:
25. Accordingly, accused Mohd. Faisal, S/o Sh. Mohd. Wahid Hussain is held not guilty and acquitted for the offence punishable under Section 12/9/55 Delhi Public Gambling Act.
Announced in open (Abhitesh Kumar)
Court today i.e on 21.08.2023 MM-08, (SE) Saket Courts
New Delhi
This Judgment contains thirteen pages (13) and all pages bears my signature.
(Abhitesh Kumar) MM-08 (SE): Saket Courts New Delhi: 21.08.2023 FIR No. 118/2022 State Vs. Mohd Faisal Page no. 13/ 13