Delhi District Court
State vs . Shiva on 22 April, 2023
IN THE COURT OF SH. GAURAV SHARMA
METROPOLITAN MAGISTRATE-05,
CENTRAL, TIS HAZARI COURTS, DELHI
CIS No. 1243/2021
State Vs. Shiva
FIR No. 2/2021
PS : Nabi Karim
U/s : 12 Gambling Act, 1955
1) Comp. ID No. of the case : 1243/2021
2) Date of commission of offence : 01.01.2021
3) Name of complainant : Ct. Sita Ram
4) Name & parentage of accused : Shiva
S/o Lt. Sh. Bharat Singh
5) Offence complained of : U/s 12 Delhi Public
Gambling Act, 1955
6) Plea of accused : Pleaded guilty
7) Final order : Acquittal
Date of Institution : 25.01.2021
Judgment reserved on : 28.03.2023
Judgment pronounced on : 24.04.2023
FIR No. 2/2021 PS Nabi Karim State v Shiva Page 1 of 8
JUDGMENT
24.04.2023
1. Accused is hereby Acquitted of all the charges.
2. Without cogently establishing the circumstances under which the offence alleged was committed, the evidence adduced on record is found to be way too suspect to pin down the accused beyond reasonable doubt. As such therefore, he is held entitled to the benefit of doubt.
FACTS
3. Pithily put, the case as per prosecution is that on 01.01.2021, at about 03:45 PM, in front of H.No. C-180, Chinot Basti, Nabi Karim, Delhi, within the jurisdiction of PS Nabi Karim, accused was found gambling at the said public place and thereby committed an offence punishable U/s 12 Delhi Public Gambling Act, 1955.
4. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused was summoned. Accused was supplied with copy of charge- sheet in compliance of section 207 of Cr.P.C. Notice U/s 12 of Delhi Public Gambling Act, 1955 was framed against him thereafter, to which the accused pleaded not guilty and claimed trial.
5. In order to prove its case, two prosecution witnesses were examined. Vide statement recorded of the accused U/s 294 Cr. P.C., subject FIR Ex. A-1 & relevant entries of register FIR No. 2/2021 PS Nabi Karim State v Shiva Page 2 of 8 no. 19 were admitted and consequently, rest of the formal witnesses were dropped from the list of witnesses to be examined.
6. PE was closed on 20.02.2023. Statement of accused was thereafter recorded U/s 281 r/w 313 Cr.P.C, wherein he stated that he was innocent and nothing was recovered from his possession. He opted not to lead DE.
7. I have heard arguments of Ld. APP for the State as well as of Ld. Counsel on behalf of the accused, perused the record and have gone through the relevant provisions of law.
FINDINGS
8. In order to establish the guilt of the accused, prosecution was under obligation to prove the charge framed against him beyond reasonable doubt.
9. As per the prosecution version, the recovery witness stated that on the day of the incident, he alongwith others, was on patrolling duty in the area of PS Nabi Karim. However, no document / DD entry has been shown by which it can be proved that the said witness actually left the PS for patrolling duty in the area concerned at the relevant time.
10.The importance of DD entry qua arrival and departure of the police officials from police station can best be FIR No. 2/2021 PS Nabi Karim State v Shiva Page 3 of 8 summarised from perusal of Chapter 22 Rule 49 of Punjab Police Rules, 1934, which provide as under :
"22.49 Matters to be entered in Register No. II. The following matters shall, amongst others, be entered:
(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 all 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. Note:
The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
11.In the present case, the above quoted provision appears to have not been complied with. As per the prosecution version, at the time of the apprehension of the accused, he was playing cards and had cash in his possession. PW-1 was in the area concerned for patrolling duty but the DD entry vide which he had left the PS for the same has not been brought on record. The number of the said DD entry made in Register No. II also, has not been brought on judicial record. The prosecution was under an obligation to prove on record, the above said DD entry vide which above said police official had left the PS for patrolling duty so as to prove the possibility of availability of the abovesaid recovery witness at the place of apprehension of the accused. Non-production of the aforesaid record raises doubt on prosecution version.
FIR No. 2/2021 PS Nabi Karim State v Shiva Page 4 of 812.In this regard, judgement passed in Rattan Lal versus State 1987 (2) Crimes 29 by the Hon'ble Delhi High Court may also be gainfully noted wherein it has been observed that :
"...if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
13.In view of the above, non-furnishing of relevant DD entries by the State inures to the benefit of the accused.
14.Further, on perusal of the case file it is also observed that the IO has not made any public person as a witness of the recovery, as alleged. In this regard, no explanation has been given by the prosecution witnesses. No efforts are also shown to have been made in this regard by the IO.
15.In Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) it was held in the aforementioned background that:
"there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genius attempt having been made to join public witnesses. It is further held that a stereotype statement of nonavailability of any public witness will not be sufficient particularly when at the relevant time, it FIR No. 2/2021 PS Nabi Karim State v Shiva Page 5 of 8 was not difficult to procure the services of public witness."
16.Keeping in view the ratio of the above cited judgement, it may be safely concluded that the prosecution has failed to show a genuine effort to make any public witness with regards alleged recovery of case property from the possession of the accused. Also, if public persons did not indeed assist the police, they could have served the said public witnesses with a notice in writing to join police proceedings, but perusal of the record shows that nothing of the sort was done by the IO.
17.In the case of Anoop Joshi Vs. State 1992 (2) C.C.Cases 314 (HC), Hon'ble High Court of Delhi had observed as under :-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers 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 law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
18.Similar observations have been made by Hon'ble Punjab and Haryana High Court in Roop Chand Vs. The State of Haryana 1999 (1) C.L.R. 69. However, since IO failed FIR No. 2/2021 PS Nabi Karim State v Shiva Page 6 of 8 to take any such steps, it creates a doubt in the veracity of case of the prosecution.
19.It is also seen that both the PWs simply deposed that the accused was gambling and had cash with him. It is not deposed by any of the witnesses that how the recovered articles can be said to have been used for betting. That is to say, how the betting was going has not come on record. There is no space of ambiguity in a criminal trial. Merely recovery of money from the accused cannot be taken to believe that the money was being used for gambling. There was no attempt to connect the seized material allegedly recovered from the possession of the accused to the offence of gambling. The modus operandi of betting has not been revealed and cogently established. Merely using the blanket expression 'betting' is not sufficient.
20.Further, it is mentioned by the PWs that one pullanda containing case property was seized vide seizure memo. Thus, the seizure memo was prepared prior to registration of FIR. In these circumstances, FIR number could not have surfaced on that seizure memo but the seizure memo bears the FIR number. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged.
FIR No. 2/2021 PS Nabi Karim State v Shiva Page 7 of 8That being so, benefit arising out of such a situation must necessarily go to the accused. (Giri Raj v. State, 83 (2000) DLT 201)
21.Finally, it has not been proved by the prosecution if personal search of the Police Officials, who did the personal search of the accused, was given to the accused before searching him, which again raises probability that case property was planted upon the accused.
22.In the facts and circumstances of the case as discussed above, it is held that prosecution has not been able to establish its case beyond reasonable doubt. As such therefore, accused deserves benefit of doubt. Accordingly, the accused Shiva stands Acquitted of the offences punishable under Sections 12 of the Delhi Public Gambling Act, 1955.
23.Bail bonds & Supardari, if any, stands cancelled. File be consigned to record room after due compliance.
Digitally
signed by
Announced in open Court GAURAV
GAURAV SHARMA
on 24.04.2023. SHARMA Date:
2023.04.24
15:57:48
+0530
(GAURAV SHARMA)
Metropolitan Magistrate-05
THC/Central/Delhi
Judge Code : DL00855
FIR No. 2/2021 PS Nabi Karim State v Shiva Page 8 of 8