Delhi District Court
State vs . Dinesh Chand Etc. on 23 October, 2007
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IN THE COURT OF SH. RAJ KUMAR:
METROPOLITAN MAGISTRATE: KARKARDOOMA COURTS:
DELHI
FIR NO.: 268/00
P.S. : Gandhi Nagar
U/s : 12 Gambling Act
State Vs. Dinesh Chand etc.
1. Sl. No. of the case : 39/2
2. Date of institution : 12.12.2003
3. Name of the complainant : state
4. Date of commission of offence: 23.10.2000
5. Name of accused :i) Dinesh Chand
S/o.Sh.Mahesh
Chand
R/o.H.No.5311,
Main Road, Old
Seelampur, Delhi.
ii) Vinod Kumar
S/o.Sh.Ram
Bharose Lal,
R/o.H.No.5257,
Gali NO.4,
Seelampur,Delhi.
Iii) Shaka Ram
S/o.Sh.Champa Lal
R/o.H.No.9/5211,
Main Road,
Seelampur, Delhi.
State vs. Dinesh Chand etc. FIR No.268/00
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iv) Radhey Shyam
S/o.Sh.Itwari Lal,
R/o.H.No.5259,
Gali NO.4,
Seelampur, Delhi.
6. Offence complained of or proved: 12 Gambling Act
7. Plea of guilt : Accused pleaded
not guilty
8. Final order : Acquitted
(Accused Shaka Ram is PO)
9. Date of reserving the Order : 18.10.2007
10. Date of such order : 23.10.2007
JUDGEMENT
1. In brief, the allegations of the prosecution against the accused Dinesh Chand, Vinod Kumar, Shaka Ram, Radhey Shyam & Itiwari Lal are that on 23.10.2000 at 12.00midnight at opp. Gol Bethak, Gali Old Seelampur, within the jurisdiction of PS Gandhi Nagar they all were found playing gambling and police recovered Rs.1120/- as stake money from their possession and thereby committed an offence punishable U/s 12 of Gambling Act within the cognizance of this Court.
State vs. Dinesh Chand etc. FIR No.268/00 3
2. For the above stated allegations of the prosecution, vide order dt. 11.9.2002, the predecessor Court of Sh. Ramesh Kumar, the then Ld. MM: KKD: Delhi framed charges against all the accused persons for the offences punishable U/s 12 of Gambling Act to which they had pleaded not guilty and claimed trial and thus the trial has commenced.
3. In support of its case, the prosecution examined only two prosecution witnesses i.e. PW1 ASI Shyam Lal proved the copy of FIR as Ex.PW1/A submitting that on receiving rukka from constable Bal Kishan sent by the investigating officer, HC Rajender Singh, he recorded FIR no.268/00 with P.S. Gandhi Nagar. Thus, this witness was a formal witness who came to the witness box to authenticate the registration of the case.
Whereas PW2 constable Amar Pal was one of the alleged recovery witnesses who testified that during the patrolling duty the accused persons were apprehended when they were found playing gambling by playing cards with the help of stake money. Thus, this witness was material for proving the guilt of the accused as he was one of the recovery witnesses and could prove the alleged recovery from the State vs. Dinesh Chand etc. FIR No.268/00 4 possession of the accused.
4. During the trial, some documents were exhibited for producing them as documentary evidence which includes the FIR Ex.PW1/A, seizure memo Ex.PW2/A, personal search memo Ex.PW2/B, Ex.PW2/C, Ex.PW2/D & Ex.PW2/E etc. That is all for prosecution evidence.
5. Statement of accused persons was recorded U/s. 281 Cr.P.C.
wherein, when all the incriminating evidence and documents put to them they denied all as incorrect and submitted that they were falsely implicated by the police officials but did not lead defence evidence in support of his defence.
6. During final submissions, Learned APP on behalf of State has submitted that PW1 HC Rajender Prasad, the duty officer who recorded FIR in this case as well as PW2 constable Amar Pal who was the recovery witness have fully supported the prosecution case State vs. Dinesh Chand etc. FIR No.268/00 5 in totality.
Whereas, Ld. defence counsel Rajinder Singh has vehemently countered the prosecution case on many counts particularly on the ground that no independent witness was joined, that the case property was not produced in sealed condition when produced in the court and that there are number of discrepancies in the testimony of prosecution witnesses thus, requested for giving a benefit of doubt to the accused.
7. On going through the records, consisting of ocular as well as documentary evidence, in the light of the contentions of both the parties, it is observed that one of the material witness of the prosecution i.e. the recovery witness constable Amar Pal deposed that no written notice was given to any resident being the night time but also deposed that someone was going and coming in the street meaning thereby the area was not a thickly populated but few public persons were available who could be joined if efforts were State vs. Dinesh Chand etc. FIR No.268/00 6 made by the police officials as the area was a residential area. Thus non-joining of any independent witness is proved despite the fact that the spot was a residential area.
8. Further, it is also observed that despite several opportunities given to prosecution only two witnessed could be examined and in absence of corroborative testimony of any other recovery witness, apprehension of the accused as well as the arrest could not be proved.
9. Thus, the Court is of the considered view, that the incident could not be proved by the prosecution against the accused as no independent witness could be produced by the prosecution to support the prosecution case as in such kind of cases examination of public witness would support prosecution case against the accused persons for the offences as allegedly.
State vs. Dinesh Chand etc. FIR No.268/00 7
10. Further, it is deposed by the recovery witness constable Amar Pal that they did not offer their search prior to the search of the accused persons which is fatal to the prosecution case as if three police officials are recovery witnesses and four accused persons are arrested then at least one of the police officials or accused persons could be asked to take personal search of the police officials prior search of the accused persons to strengthen the case of the prosecution.
11. Further, most important fact in this case is that the case property was produced in the court in unsealed condition and no specific mark was put on the cards as well as the currency notes which were seized on the alleged date of incident which creates a doubt whether such incident of apprehension of accused persons while playing gambling was occurred or not as such type of case property can easily be procured from market and specific identification mark should be put on the case property to make it State vs. Dinesh Chand etc. FIR No.268/00 8 different from similar kind of case property.
12. Therefore, on the basis of above observations on law and facts, I am of the considered view that the prosecution failed to prove its case against the accused persons, thus, on the basis of principles of criminal justice system, a benefit of doubt is given to all the accused persons. Hence, all the accused persons are thereby acquitted from the charges levied against them for the offences punishable u/s.12 of Gambling Act.
Announced in the open court On 23rd Day of October 2007 ( RAJ KUMAR ) Metropolitan Magistrate Karkardooma Courts, Delhi.
State vs. Dinesh Chand etc. FIR No.268/00
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FIR NO.: 268/00
P.S. : Gandhi Nagar
U/s : 12 Gambling Act
State Vs. Dinesh Chand etc.
23.10.2007
Present: Ld. APP for the state.
All the four accused persons are on bail except accused Shakaram who was declared Proclaimed Offencer in this case. Vide Separate order/judgment the accused persons Dinesh Chad, Vinod Kumar & Radhey Shyam are acquitted from the charges levied against them for the offence punishable under section 12 of Gambling Act. Their bail bond/surety bond are discharged.
As one of the accused persons Shaka Ram is PO file be consigned to Record Room as PO file.
MM/24.10.07 State vs. Dinesh Chand etc. FIR No.268/00