Delhi District Court
State vs . Dinesh Chauhan Etc Ps: Farsh Bazar on 8 May, 2018
State vs. Dinesh Chauhan etc PS: Farsh Bazar
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE (MAHILA COURT-02), SHAHDARA,
KARKARDOOMA COURTS, DELHI
State vs. Dinesh Chauhan etc
FIR No. 377/2004
U/sec. 12/09/55 Gambling Act
PS: Farsh Bazar
Date of institution of the case: 25.06.2005
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 08.05.2018
Unique I. D. No. 02402R0682372005
JUDGMENT
a) Sr. No. of the case : RBT 21/18 b) Date of commission of the offence : 03.11.2004 c) Name of the complainant : Head Constable Hari Krishan
d) Name of the accused and his parentage : 1. Dinesh Chauhan S/o Sh. Inder Singh Chauhan 1.
2. Bhim Singh S/o Sh. Inder Singh Both R/o H.No.252, Purana Dakhane Wali Gali, Chhota Bazar, Shahdara, Delhi.
3. Gopal Singh S/o Late Hari Mohan R/o H.No.8/51, Gudhai Mohalla Jain Mandir Gali Chhota Bazar, Shahdra, Delhi.
4. Varun Saini Sh. Ashok Saini FIR No. 377/2004 Page 1 of 11 State vs. Dinesh Chauhan etc PS: Farsh Bazar R/o H.No.8/55, Jain Mandir Gali, Chhota Bazar, Shahdara, Delhi.
(expired)
e) Offence complained of or proved : Sec.12/9/55 Gambling Act
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 08.05.2018
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 03.11.2004, Head Constable Hari Krishan while returning after serving the summons, met Constable Tek Ram and Constable Jasvir near Babu Ram School, at about 10:30 p.m. At about 10:40 p.m., Head Constable Hari Krishan received secret information from secrete informer that four persons are playing gamble in Trunk Wali Gali and if raided, they could be apprehended.
Thereupon, Head Constable Hari Krishan requested 4-5 public persons to join the raiding party but none of them agreed and went away without telling their names and addresses. Thereafter, without wasting time, 0he constituted a raiding party consisting of himself, Constable Tek Ram and Constable Jasvir and reached the spot along with the secret informer.
Secrete informer pointed out towards accused persons, who were playing gamble with cards and stake money. On seeing the police party, accused persons threw the cards and stake money on the ground. IO with the help of the members of the raiding party, apprehended the accused persons and collected the cards and stake money. IO counted the cards and the stake money. On counting 52 cards and Rs. 2,100/- found. IO seized the cards i.e. 52 cards and the stake money i.e. Rs. 2100/- vide seizure memo/Ex.PW1/A. Thereafter, IO prepared the rukka/Ex.PW1/B and handed over the same to Constable Jasvir for registration of the FIR. Consequently, the present FIR No. 377/2004 Page 2 of 11 State vs. Dinesh Chauhan etc PS: Farsh Bazar FIR/Ex.PW2/A was registered against the accused persons at PS Farsh Bazar and an endorsement/Ex.PW2/B to this effect was made on the rukka.
Then, the IO interrogated the accused persons, conducted their personal search vide personal search memos, arrested them vide separate arrest memos, prepared the site plan/Ex.PW1/C, recorded the statement of witnesses' under section 161 of the Code and deposited the case property in the Malkhana.
After completion of the investigation, challan was filed before the court. Consequently, the accused persons were summoned to face the trial. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to them as per norms.
Thereafter, the notice under section 12/9/55 of the Gambling Act (herein after referred to as the Act) was framed against the accused persons to which they pleaded not guilty and claimed trial.
While the case was at the stage of prosecution evidence, accused Varun expired and the proceedings qua him were dropped as abated vide order dated 29.08.2017.
With a view to connect the accused with the crime, the prosecution has examined as many as four witnesses.
PW1/ASI Hari Krishan was the complainant as well as the IO of the present case. He testified in the court that on 03.11.2004, he was posted at PS Farsh Bazar as Head Constable. He stated that on that day, he was returning after serving the summons and at about 10:30 p.m., when he reached near Babu Ram School, he met Constable Tek Ram and Constable Jasvir. At about 10:40 p.m., he received secrete information that four persons are playing gambling in Trunk wali gali and if raided, they could be apprehended.
He asked 4-5 public persons to join the raiding party but none of them agreed and went away without telling their names and addresses. Thereafter, he constituted a raiding party consisting of himself, Constable Tek Ram and Constable Jasvir and reached the spot along with the secret informer. At the instance of the secrete FIR No. 377/2004 Page 3 of 11 State vs. Dinesh Chauhan etc PS: Farsh Bazar informer, he apprehended four persons sitting under the electrical pole when they were playing gamble with the help of cards and stake money.
On seeing the police party, all the accused persons threw the cards and stake money on the ground. The cards and stake money was collected. On counting, 52 cards and Rs. 2,100/- found. He seized the cards i.e. 52 cards and the stake money i.e. Rs. 2,100/- vide seizure memo/Ex.PW1/A and sealed with the seal of "SPK". Seal after use was handed over to Constable Tek Chand.
He prepared the rukka/Ex.PW1/B and handed over the same to Constable Jasvir for registration of the FIR. Constable Jasvir went to the police station and returned back with the copy of the FIR and rukka and handed over the same to him.
He prepared the site plan/Ex.PW1/C, arrested the accused persons vide Ex.PW1/D to Ex.PW1/G and conducted their personal search. He recorded the statement of witnesses' under section 161 of the Code and deposited the case property in the Malkhana. Accused persons were released on bail.
He correctly identified the accused persons and the case property as well.
He during his cross-examination by the learned defence counsel stated that he does not remember the DD entry vide which he left the PS for the purpose of serving the summons. He stated that he cannot tell the name of the person upon whom he served the summons or the address of that person.
He admitted the suggestion that the spot was a public place. He stated that he asked 4-5 persons to join the investigation but none agreed and left the spot without disclosing their name and addresses.
He stated that he gave rukka to Constable Jasvir at about 12:10 a.m., and he returned back at about 1:55 a.m. He stated that he did not give the secrete information to his seniors. He denied the suggestion that the accused persons were falsely implicated in the present case at the instance of the SHO. He also denied the suggestion that nothing was recovered from the possession of the accused persons.FIR No. 377/2004 Page 4 of 11
State vs. Dinesh Chauhan etc PS: Farsh Bazar PW2/ASI Ram Pal was the Duty Officer, who proved the registration of the FIR/Ex.PW2/A. PW3/ASI Tek Ram and PW4/Head Constable Jasvir were the members of the raiding party.
Thereafter, PE was closed.
After completion of the prosecution evidence, statement of the accused persons was recorded. They denied the allegations and pleaded false implication. However, they did not examine any witness in their defence.
I have heard the learned defence counsel and learned APP for the State and have also perused the records very carefully.
Decision and brief reasons for the same It is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove his guilt beyond a reasonable doubt. Therefore, the prosecution is under legal obligation, to prove each and every ingredient of the offence beyond any reasonable doubt. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution can succeed only on discharging its burden of proving the case against the accused. Strongest of suspicion, does not constitute the proof required. Keeping in view the principle of law laid down in cateena of judgments by the superior courts, now let us see, as to whether the prosecution has been able to prove its case, against the accused, beyond a reasonable doubt.
FIR ante-dated and ante-times It was argued by the learned APP for the State that all the recovery witnesses have proved the fact that accused persons were found gambling at a public place and stake money of Rs. 2,100/- and 52 playing cards were recovered from them. Therefore, prosecution has successfully proved its case beyond reasonable doubt.
Per contra, it was argued on behalf of the accused persons that the FIR/Ex.PW2/A is ante-dated and ante-timed. He submitted that the case property was allegedly FIR No. 377/2004 Page 5 of 11 State vs. Dinesh Chauhan etc PS: Farsh Bazar seized by the IO vide seizure memo Ex.PW1/A before the registration of the FIR but the seizure memo bears the FIR number. He submitted that the FIR number on the top of the document is in the same ink and handwriting.
The Hon'ble High Court of Delhi in the case of Pawan Kumar vs. the Delhi Administration 1989 Crl. L.J 127 observed as under:
"In the normal circumstances, the FIR number should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the FIR number which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
Admittedly, seizure memo/Ex. PW1/A was prepared at the spot prior to registration of the FIR but it bears number of the FIR. Prosecution has not offered explanation under what circumstances number of the FIR has appeared on the top of this document.
No public witness It was argued on behalf of the accused that no independent witness was examined by the prosecution and all the prosecution witnesses were police officials, who could conveniently level allegations against the accused, without any shred of objective evidence.
He has placed reliance on a judgment passed in the case of Roop Chand vs. State of Haryana 1990 CCC 3 wherein it was held as under:
"When some witness from the public was available the explanation furnished by the prosecution that they refused to join the investigation, the same is wholly unsatisfactory, FIR No. 377/2004 Page 6 of 11 State vs. Dinesh Chauhan etc PS: Farsh Bazar particularly when the IO did not note down the names and addresses and did not take any action against them''.
In reply, it is submitted by the learned APP for State that the non-joining of public witnesses is not fatal to the case of prosecution. He submitted that police personnel are equally competent witnesses as any other witness and their testimony cannot be rejected merely because they are police officials.
Admittedly, recovery has not been testified by any independent witness. As per the prosecution witnesses' public persons were available at the spot. It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public person was not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses. Reference may be made to the judgment passed by the Hon'ble Supreme Court of India in the case titled as Sanspal Singh Vs. State of Delhi 1999 Cr. L.J. 19, wherein it was held that non-joining of public witnesses would not be fatal to the prosecution in the situation where there were no public witnesses available or none was willing to associate in the investigation but would be fatal only when despite the availability of the public witnesses no one was joined in the investigation.
In Ritesh Chakarvati vs. State 2006(4) RCR (Criminal) 480(SC), no effort was made to join an independent witness despite availability. The names of the persons from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held by the Hon'ble Supreme Court of India that the case of the prosecution was doubtful and ultimately, the accused was acquitted.
Now, it is to be seen in the back drop of the facts of the present case whether the story as put forth by the prosecution can be believed on the touchstone of the law as settled by the Hon'ble Supreme Court of India.FIR No. 377/2004 Page 7 of 11
State vs. Dinesh Chauhan etc PS: Farsh Bazar PW1/ IO during his examination-in-chief had stated that "I asked 4-5 persons to join the investigation but none had agreed and left the spot without disclosing their names and addresses."
Perusal of the testimony of the IO shows that he had not made any sincere efforts to join any independent witness. The explanation given by the IO does not inspire confidence. The failure to do so by the IO is suggestive of the fact that explanation for non-joining the witnesses from the public is an afterthought and is not worthy of credence. Failure on the part of prosecution to make sincere efforts to join independent public witnesses in the proceedings when they are available creates reasonable doubt in the prosecution case.
Seal movement Further, seal after its use was kept by the police officials themselves. So, possibility of tampering with the case property cannot be ruled out. This view stands fortified by the judgment of the Hon'ble Delhi High Court passed in the case of the Safiullah vs. State (Delhi Administration) (1993) DLT 193=(25) DRJ 248 wherein it was held as under:-
"The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. ..."
No handing over or return memo of the seal It was contended by the learned defence counsel that link evidence concerning the seal movement is not established by the prosecution. He, therefore, submitted that this is a vital piece of link evidence which is missing from the prosecution case and creates a doubt on the prosecution.
As per the IO, the seal after use was handed over to Constable Tek Chand, however, no handing over memo or return memo of the seal is placed on record by the IO. Therefore, I am of the considered opinion that link evidence concerning the seal movement was missing in this present case, which fact by itself is sufficient to cast a shadow a doubt on the authenticity of the prosecution case.
FIR No. 377/2004 Page 8 of 11 State vs. Dinesh Chauhan etc PS: Farsh Bazar
DD Entry not proved
Learned defence counsel refuting the allegations has stated that a false case has been foisted against the accused persons. In continuation of his argument, he submitted that as per the prosecution version, PW1/Head Constable Hari Kishan was returned after serving the summons while other prosecution witnesses were patrolling in the area; however, the prosecution has not proved the departure and arrival entries regarding the service of summons or patrolling in the area. He submitted that had this been true, there ought to have been some DD entry in the Roznamcha. He stated that in the absence of DD Entries, it cannot be said that they were actually patrolling in the area at the relevant time. He submitted that the Rojnamcha containing the DD Entries regarding their arrival and departure entry are not produced during the course of trial.
To appreciate the argument advanced on behalf of the accused, it would be advantageous to refer to clause (c) of Rule 22.49 Chapter 22 Punjab Police Rules which reads as under:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
From the reading of the above mentioned rule, it is evident that all police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office. However, in the present case the DD entry is not proved on record as per Indian Evidence Act to establish that the members of the raiding party were actually present in the area at the relevant time in connection with patrolling of the area/service of summons.
The Hon'ble Delhi High Court while dealing with a similar situation in the case of Rattan Lal vs State 32 (1987) DLT 1=1987 (2) Crimes 29 observed as under:
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to FIR No. 377/2004 Page 9 of 11 State vs. Dinesh Chauhan etc PS: Farsh Bazar approach, their action with reservations. The matter has to be viewed with suspicion if the provisions of law State vs. Dilshad @ DC are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
In view of the above, I am of the considered view that the failure by the prosecution to prove the DD entries concerning the departure and arrival of the police officials for patrolling duty or service of summons casts a shadow of doubt on the genuineness of prosecution version and lends support to the contention of the learned defence counsel that the case property was planted upon the accused persons.
Inter-se contradictions PW1/IO during his examination-in-chief stated that at about 10:30 p.m., one secrete informer met him and gave secrete information to him, while PW3/ASI Tek Ram has stated that he along with Constable Jasvir was patrolling in the area and they received secret information and conveyed the same to Head Constable Hari Krishan/IO.
Further, PW1/IO during his cross-examination by the learned defence counsel stated that he did not give secrete information to his seniors whereas PW4/Head Constable Jai Vir during his cross-examination stated that the secrete information was conveyed to the SHO.
Furthermore, PW1/IO during his cross-examination by the learned defence counsel stated that he handed over the rukka to Constable Jasvir at about 12:10 a.m., and he returned back at about 01:55 a.m., whereas PW4/Jasvir during his cross- examination stated that he went to PS at about 12:15 a.m., and returned back at about 12:55 a.m. All these facts taken together are sufficient to demolish the prosecution case that the accused persons were found gambling at public place and that 52 cards and stake money was recovered from the accused persons.
Result
FIR No. 377/2004 Page 10 of 11
State vs. Dinesh Chauhan etc PS: Farsh Bazar
In view of the discussion, I have no hesitation to hold that the prosecution has failed to prove its case beyond reasonable doubt that the accused persons were playing gamble at public place and 52 cards and stake money was recovered from their possession.
Consequently, accused persons namely Dinesh Chauhan, Gopal Singh and Bhim Singh are ACQUITTED of the crime charged.
Bail bonds under section 437-A of the Code furnished. Perused and accepted.
The case property, if any, be destroyed as per ruled after the expiry of the period of appeal.
File be consigned to record room after due compliance.
Announced in open Court on 8th day of May, 2018 (Babita Puniya) MM (Mahila Court-02)/Shahdara KKD Courts/Delhi/08.05.2018 This judgment contains 11 pages and each page bears my signature.
Digitally signed by BABITA BABITA PUNIYA
PUNIYA Date:
2018.05.08
17:14:37 +0530
(Babita Puniya)
MM (Mahila Court-02)/Shahdara
KKD Courts/Delhi/08.05.2018
FIR No. 377/2004 Page 11 of 11