Himachal Pradesh High Court
State Of Himachal Pradesh vs Raj Pal And Others on 5 December, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 325 of 2009
Date of decision: 5.12.2019
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State of Himachal Pradesh. ...Appellant.
Versus
Raj Pal and others. ...Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Ms.Rameeta Rahi, Additional Advocate
General.
For the Respondents: Mr.K.S. Banyal, Senior Advocate, with Mr.Inder
r Singh Rana, Advocate, for respondent No. 3.
Respondents No. 1 and 2 have expired.
None for respondent No. 4.
Vivek Singh Thakur, Judge (oral)
This appeal has been preferred by the State against acquittal of accused vide judgment dated 6.1.2009, passed by learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P. in Criminal Case No. 20-III-2008, titled as State of Himachal Pradesh Vs. Raj Pal and others in FIR No. 36/2008, registered at Police Station Barsar, under Section 13-A of the Gambling Act.
2. In the challan presented by the Police, there were four accused persons, two of them, namely, Raj Pal and Shankar Singh have expired on 5.8.2017 and 15.3.2012, respectively and appeal against them stands abated.
3. Prosecution case in brief is that on 8.3.2008 at about 4:30 P.M. PW-2 Inspector/SHO Bakshi Ram along with S.I. Sher Singh and HHG Surinder Singh was on patrolling in Government vehicle HP-22-4642, being driven by driver Constable Karam Chand, under a special campaign against anti social aliments. Their departure from Police Station was entered in Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 06/12/2019 20:26:21 :::HCHP 2 Cr. Appeal No. 325 of 2009 daily diary at Sr. No. 13, dated 8.3.2008, extract whereof is Ex. PW-2/A. It is case of the prosecution that when the patrolling party was present at Mehre- Garli Road, then Tilak Raj MHC, Police Station Barsar had informed PW-2 .
Inspector/SHO Bakshi Ram that a telephone had been received in the Police Station that adjacent to High School Baliah in the forest near main water tank of IPH, four persons Raj Pal etc. were busy in gambling and in case the place is raided immediately, they would be apprehended red handed along with amount and playing cards.
4. Finding the information reliable, PW-2 Inspector/SHO Bakshi Ram along with Police Officials proceeded towards the spot with intention to join independent witnesses in case of availability, as delay in raiding would have caused disappearance of the accused as well as evidence. Accordingly, rukka Ex. PW-2/B was prepared by PW-2 Inspector/SHO Bakshi Ram and sent to Police Station through HHG Surinder Singh. On receiving rukka, case FIR No. 36 of 2008 was registered in the Police Station.
5. According to prosecution case, the place was raided without associating any independent witness by the Police party and on the spot four persons Raj Pal, Shankar Singh, Parkash Chand and Ashok Kumar were apprehended playing cards and gambling and amount of `750/- was also seized on the spot and was taken into possession vide memo Ex. PW- 1/A, which was signed by accused persons as well as witnesses Constable Karam Chand and SI Sher Singh. Spot map Ex. PW-2/E was prepared and during investigation accused persons were released on furnishing personal bonds as well as surety bonds on the spot. On completion of investigation, challan was presented in the Court. On conclusion of trial, accused persons were acquitted.
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6. Prosecution has examined two witnesses to prove its case, whereas after recording statements of accused under 313 Cr.P.C., they have not lead any evidence in their defence.
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7. Prosecution has examined PW-1 SI Sher Singh as spot witness and PW-2 Inspector/SHO Bakshi Ram as Investigating Officer. Despite granting opportunity, they have not been cross-examined on behalf of accused persons, therefore, their deposition in examination-in-chief is deemed to have been admitted by the accused persons.
8. So far as involvement of accused persons in alleged commission of offence is concerned, the evidence on record is not sufficient to connect them with it. PW-1 Sher Singh in his statement has stated that they had apprehended four persons red handed, who were gambling on the spot and out of them he has disclosed names of three persons as Raj Pal, Shankar Singh and Parkash Chand, with explanation that he had forgotten the name of fourth person. His statement was recorded in the Court on 20.12.2008. Perusal of order sheets of the trial Court establishes that on that date, all accused persons were present in the Court. Surprisingly, PW-1 Sher Singh, in his deposition, has not uttered even a single word, stating that the accused persons, present in the Court, were apprehended red handed on the spot. He has stated names of three persons as Raj Pal, Shankar Singh and Parkash Chand, but he has not identified that Raj Pal, Shankar Singh and Parkash Chand, named by him in his deposition along with the fourth person, present in the Court as the same persons, who were involved in commission of offence under the Gambling Act and apprehended by them. Statement of PW-2 Inspector/SHO Bakshi Ram, who is Investigating Officer, was also recorded on the same day. His statement is also the same. He has also not identified the accused.
9. Accused persons were apprehended on the spot. They disclosed their identity. They were enlarged on bail on the spot and their ::: Downloaded on - 06/12/2019 20:26:21 :::HCHP 4 Cr. Appeal No. 325 of 2009 certificates of identity were also prepared by the Investigating Officer, which are on record, however, not exhibited. In these certificates, photographs of the accused persons are also not there. There is nothing on record to .
establish that accused persons, apprehended by police had disclosed their true identity and also, there is no evidence about verification of information supplied by them. Therefore, it was necessary for witnesses to identify them as persons who were apprehended on the spot. Some evidence was necessary to establish that the persons who were apprehended on the spot red handed, had disclosed their true identity and are the same persons, who were present in the Court as accused, but such link is missing. Though, prosecution has succeeded in establishing, as has not been disputed in cross-examination, that after receiving secret information four persons were caught red handed, who were gambling with the help of playing cards and an amount of `750/- was also recovered from them on the spot along with playing cards, but who were those four persons was to be certified by identifying the accused persons by witnesses in the Court. The prosecution evidence on this part is missing.
10. Though, it has also been argued on behalf of accused persons that no independent witness has been examined and out of four Police officials, only two have been examined, and therefore, also prosecution case is liable to be rejected. I am not in agreement with this argument advanced on behalf of accused persons, as it is not quantity, but the quality of evidence which matters. In present case two witnesses have been examined and they have not been cross-examined, therefore, their version stand admitted by the accused persons and I find no reason to lead any further evidence to corroborate the same, therefore, non-examination of some of the witnesses in present case is not fatal to the prosecution. Similarly, keeping in view time and place of raid and also for availability of independent witness, non-joinder of independent witnesses would have ::: Downloaded on - 06/12/2019 20:26:21 :::HCHP 5 Cr. Appeal No. 325 of 2009 been fatal to the prosecution, but in present case, as the deposition of prosecution witnesses has not been disputed by the accused, the impact of non-joinder of independent witness has also diminished. However, for the .
discussion supra, the prosecution has failed to establish the identity of accused persons in the Court, as none of two witnesses has identified the accused persons in the Court as the same persons, who were involved in commission of offence. Therefore, they are entitled for benefit of doubt.
11. For the aforesaid reasons, I find no merit in the present appeal and the same is dismissed.
r (Vivek Singh Thakur),
th
5 December, 2019 Judge.
(KRS)
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