Delhi District Court
Fir No.50/01 Ps Anand Parbat State vs . Rajender Kumar Etc. on 8 July, 2013
FIR No.50/01 PS Anand Parbat State Vs. Rajender Kumar etc.
IN THE COURT OF SHRI PULASTYA PRAMACHALA
ADDL. CHIEF METROPOLITAN MAGISTRATE, WEST
TIS HAZARI COURTS, DELHI
F.I.R. No.50/01
Police Station: Anand Parbat
Under Section 12/9/55 of G. Act
(a) Case ID number : 02401R0531912003
(b) Date of commission of the : 12.03.2001
offence
(c) The name of the complainant : SI Praveen Kumar
(d) The name of the accused : (1)Rajender Kumar, s/o.Sh. Madan Lal,
persons, their parentage and r/o.GH8/145, Paschim Vihar, Delhi.
residence (2)Rajesh, s/o.Sh. Sardari Lal,
r/o.Gh8/145 Paschim Vihar, Delhi
(3)Rakesh Kumar, s/o.Sh.Chaman Lal,
r/o.11/68, Subhash Nagar, Delhi
(4) Ashok Kumar, s/o.Sh. Kishan
Kumar,r/o.44, Mohan Garden Extn.,
Delhi
(5)Ashok Kumar, s/o.Sh. Prabhu Dayal,
r/o.X491, Ram Nagar, Gandhi Nagar,
Delhi
(6) Mahesh Katyal, s/o.Sh. Kashmiri
Lal Katyal, r/o.B101, Motiakhana,
Paharganj, Delhi
(7)Vinay Sharma, s/o.Sh. Banarasi Das
Sharma, r/o.48/48, Gali no.6, Nai Basti,
Anand Parbat, Delhi
(e) The offence complained of : Under Section 12/9/55 G. Act
(f) The plea of the accused : Pleaded not guilty and claimed trial.
(g) The final order : Acquitted
(h) Final order concluded on : 05.07.2013
(i) Judgment passed on : 08.07.2013
(PULASTYA PRAMACHALA)
Addl. Chief Metropolitan Magistrate
West District, Tis Hazari Courts:Delhi
Page no.7 of 9
FIR No.50/01 PS Anand Parbat State Vs. Rajender Kumar etc.
JUDGMENT
CASE SET UP BY THE PROSECUTION:
1. On 12.03.2001, on receipt of an information vide DD no.10A, S.I Praveen Kumar alongwith two constables visited house no.52/36C, Gali no.17, Nai Basti, Aanand Parbat, New Delhi. On reaching the spot, he saw that some persons were playing game of cards for the purpose of gambling. He apprehended the persons, who were gambling at the spot. On seeing the police team, the accused persons had scattered the cards as well as money put on stake. S.I Praveen Kumar collected the same and seized Rs.9050/ alongwith 52 cards. Accordingly present FIR was registered against them and the accused persons were arrested.
2. After completion of the investigation, police filed charge sheet against the accused persons for offence under Section 12/9/55 of G.Act, on 19.07.2001. Thereafter, on 31.10.2003, charge was framed against the accused persons for offence under Section 12/9/55 of G.Act, to which they pleaded not guilty and claimed trial.
3. Prosecution examined four witnesses in support of its case. Record shows that no witness was examined as PW2. Thereafter, statement of accused was recorded under Section 313 Cr.P.C. on 16.05.2013. Final arguments were made by both the parties.
PLEA OF DEFENCE.
4. In the course of arguments, ld. defence counsel argued that PW3 in crossexamination deposed that all the accused persons were on floor. He failed to identify any accused by name. No public witness was joined (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 9 FIR No.50/01 PS Anand Parbat State Vs. Rajender Kumar etc. in raid or search though it was residential area. PW5 also could not identify accused by their name. He deposed that all the accused persons were on chabutra and stool, contrary to PW3. No stool was seized. No chabutra was shown in site plan. None of accused was resident of the gali. The local residents had no reason not to join investigation. Rather they should have made complaint that outsiders were playing cards on mid road in their gali. PW5 did not remember anything about investigation in his crossexamination. He said 52/36C belongs to Rajender, though in charge sheet a different address was shown, where accused was served with summons. Rajender did not have any other address except that of Paschim Vihar. PW5 deposed that Rajender gave two addresses but he could not remember whether he had noted down two address. He said investigation was done on chabutra, but PW3 said it was done standing.
5. Ld. defence counsel further submitted that all the accused persons were known to Mr. Brij Bhushan Verma and had gone to his house after receiving information regarding death of his cousin. However, Mr. Brij Bhushan Verma had gone to Uttam Nagar i.e place where his cousin resided and the accused persons were not aware of that address. I.O S.I Praveen Kumar along with other police officials came to the house and took them away from the house of Mr. Brij Bhushan Verma.
FINDINGS :
6. In this case PW1 was the Duty Officer who recorded FIR on 12.03.2001. No witness was examined as PW2. PW3 had accompanied the I.O S.I Praveen Kumar to the spot i.e house no.52/36C, Gali no.13, Nai Basti, (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 9 FIR No.50/01 PS Anand Parbat State Vs. Rajender Kumar etc. Anand Parbat. He deposed that on 12.03.2001 at about 12:30 p.m, I.O received one information and took him along with Ct. Krishan to the spot. The accused persons were gambling outside the said house in the street. I.O asked the some persons to join the investigation, but they refused and left the spot. The accused persons were apprehended by them. The playing cards and cash were also taken into police possession. He could not recollect the names of the accused persons due to lapse of time. He further deposed that I.O seized the case property and prepared tehrir, which was given to him for registration of FIR. He went to P.S and came back to the spot after registration of FIR along with copy of FIR and original Tehrir. The arrest memo of the accused persons were prepared at the time of their arrest. This witness identified the accused persons in the court. During his examination one envelope without any seal was produced containing 18 currency notes of Rs.500 denomination and one currency note of Rs.50 denomination. This witness identified them to be the case property in this case. Another pullanda without seal was produced containing 52 playing cards, which was also identified by this witness to be the case property. In his crossexamination he denied the suggestion that he was not present at the spot. He further deposed that all the accused persons were sitting on the street at the relevant time. He could not remember the design or the colour of the playing cards. He further deposed that around 1230 people assembled at the spot at that time but they did not join the proceedings.
7. PW4 was the MHC(M), who had received the case property from I.O. PW5 was the complainant as well as I.O. He also repeated the same facts as stated by PW3. He also deposed that when the accused persons saw (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 9 FIR No.50/01 PS Anand Parbat State Vs. Rajender Kumar etc. the police team, they threw the playing cards and the cash amount by the side. In his crossexamination he also could not identify the accused persons by their name. He further deposed that 1012 persons were assembled at the spot. He could not remember the colour and design of playing cards. He further deposed that accused persons were sitting at chabutara and stool. Further, he admitted that he did not seize the stools. He could not tell the colour of clothes in which the playing cards were seized by him. He could not tell the name of the official, who had brought the sealing material. He could not tell the manner in which the playing cards were seized i.e whether in the clothes or in any other material. He deposed that he visited the house no.52/36C, which belonged to accused Rajender Kumar. However, he admitted that he did not verify the ownership of this house and could not say whether Rajender Kumar was the owner of the said house. He deposed that Rajender Kumar had disclosed about two addresses. However, he could not tell whether he had noted down both the addresses in any particular document. He denied the suggestion that the accused persons were not playing cards.
8. Accused persons examined Sh. Brij Bhushan Verma as DW1, who deposed that on 12.03.2001 his cousin had expired in the morning at Uttam Nagar. He had passed on this information to other persons and relatives and had gone to Shyam Park with his wife. At around 2:303:00 p.m, he had received information from his sisterinlaw that certain relatives/friends had reached his house and he gave back the message that they should wait as he was returning back. After reaching back his house, he came to know that accused persons were taken away by the (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 9 FIR No.50/01 PS Anand Parbat State Vs. Rajender Kumar etc. police and thereafter he reached the P.S.
9. The prime question in this case is that whether the accused persons were playing cards with money on the stake?
10.Second question is that whether the prosecution has proved such allegations beyond reasonable doubt after holding a valid investigation? From the perusal of record, I find that though I.O placed on record an extract of DD no.10A dated 12.03.2001, however he did not cite the writer of this DD as witness in this case as to explain the exact information which was received in the P.S. This DD entry was not proved by the prosecution at all. If I read this DD entry otherwise, then I find that it was mentioned in the information that some unknown person had given information through telephone about gambling taking place in house no.52/36C. It was duty of the I.O to find out about the informant and to examine him as witness. The statement given by PW3 & PW5 shows that when they reached the spot, the accused persons were allegedly on the street bu they threw the playing cards and the cash amount by the side. That means that police team actually could not see that what type of game was going on there. Such fact could have been disclosed by the informant only, but he was not traced by the I.O. Therefore, the primary evidence in respect of allegation that accused persons were actually playing cards with putting their money on stake, is not established on record beyond doubt.
11.Most importantly, in this case the complainant and I.O was S.I Praveen Kumar only.
12.It has been observed by the Hon'ble Apex Court in the matter of Megha (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 9 FIR No.50/01 PS Anand Parbat State Vs. Rajender Kumar etc. Singh vs. State of Haryana (1996) XI SCC, 709 that: "We have also noted another disturbing feature in this case. PW 3 HC Shree Chand arrested accused. On search being conducted by him, a pistol and a cartridge were recovered from the accused. It was on his complaint that a formal FIR was lodged and case was initiated. He being complainant should not have proceeded with the investigation of the case but he carried on with the investigation and examining witnesses u/s 161 Cr.P.C. Such practice, to say the least, should be restored to show that there may not be any occasion to suspect fair and practical investigation."
13. The aforesaid case law leaves no doubt that the investigation in this case was not done validly.
14.From the careful scrutiny of testimony of PW3 & PW5, I do find certain contradictory statements regarding some facts, which raise doubt over the authenticity of case of prosecution. According to PW3, all the accused persons were sitting on the street but according to PW5 they were siting on chabutara and stool. Admittedly, I.O did not seize any stool. Interestingly both the witnesses identified the case property during their production before the court, however whey they were asked to explain the design and colour of playing cards, they could not mention. In their examination in chief, both these witnesses went on to even identify the currency notes (19 in number) which is not humanly possible to recollect and to remember. I.O/PW5 could not recollect the manner in which he had seized the case property. The case properties (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 9 FIR No.50/01 PS Anand Parbat State Vs. Rajender Kumar etc. were produced in unsealed condition. All such scenario make the whole investigation in this case doubtful and untrustworthy.
15.In these circumstances, I find that all the accused persons are entitled for benefit of doubt. They are accordingly acquitted of the charges under Section 12/9/55 of Gambling Act.
Judgment dictated and (PULASTYA PRAMACHALA) pronounced in the open Court Addl. Chief Metropolitan Magistrate
On this 08th day of July, 2013. West District, Tis Hazari Courts:Delhi (This judgment consists of eight pages) (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 9