Delhi District Court
State vs . Rama Shankar & Anr. on 4 June, 2022
IN THE COURT OF MS. CHARU ASIWAL
METROPOLITAN MAGISTRATE-04/CENTRAL: DELHI
STATE VS. Rama Shankar & Anr.
FIR No. 515/2020
Case No. 10562/2021
P.S. : SARAI ROHILLA
U/s 12/9/55 Gamblingh Act
Date of institution of case : 23.09.2021
Date on which case reserved for judgment : 03.06.2022
Date of judgment : 04.06.2022
JUDGMENT :
a) Date of offence : 22.12.2020
b) Offence complained of : U/s 12/9/55 Delhi Public
Gambling Act
c) Name of complainant : ASI Kushal Pal Singh
d) Name of accused persons, : (i) Rama Shankar
their parentage : S/o Bansraj @ Vanshran
local & permanent residence R/o:- A-106, Jhuggi,
RPF Line, Daya Basti,
Sarai Rohilla, Delhi.
(ii) Dal Chand
S/o Prem Chand
R/o B-321, Jhuggi RPF
Line, Daya Basti, Delhi.
e) Plea of both accused : Pleaded not guilty
f) Final order : Acquitted
FIR no. 515/2020 State Vs. Ramashankar & Anr. Page no. 1 of 10
BRIEF FACTS OF CASE:
1. The case of the prosecution is that on 22.12.2020 at about 07:50 pm, near Daya Basti, railway line side jhuggi RPF line Delhi, within the jurisdiction of PS Sarai Rohilla, both accused persons were found gaming/ satta with the help of playing cards and thereby both accused persons committed offence punishable U/s 12/9/55 Delhi Public Gambling Act.
2. On the basis of material filed along with the charge-sheet, notice u/s 12/9/55 Delhi Public Gambling Act were framed against both the accused persons on 27.05.2022 to which they both pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 02 witnesses.
4. PW1 Constable Anand Singh deposed that on 22.12.2020 he was posted as Ct at PS Sarai Rohilla. On that day he was on emergency duty alongwith ASI Kushal Pal Singh. On that day they were patrolling near Daya Basti railway station; on the side of railway line they noticed that two persons were playing with playing cards under the electricity pole near the wall. On noticing them those persons mixed the cards in their hands with the money. He alongwith IO SI Kushal Pal Singh apprehended those persons who disclosed their names as Rama Shankar and Dal Chand. PW-1 deposed that IO asked public persons to join the investigation but none agreed. On counting the playing cards they were found to be 52 and the amount recovered was Rs. 790/-. IO kept the said cards and recovered money in white cloth pullinda and sealed with seal of KPS. Seal after use was handed over to PW-1. IO prepared one rukka and handed over to him for registration of FIR. After some time he came FIR no. 515/2020 State Vs. Ramashankar & Anr. Page no. 2 of 10 back to spot with original tehrir and copy of FIR and handed over the same to IO. IO arrested accused persons vide memo EX.PW1/A and Ex.PW1/B. Their personal search was conducted vide memo Ex.PW1/C and Ex.PW1/D. The seizure memo Ex.PW1/E. The site plan was prepared vide memo Ex.PW1/F. Accused persons were correctly identified by the witness, during examination of PW-1. Case property were correctly identified by witness produced by MHC(M) in white cloth sealed pullinda sealed with the seal of KPS. Seal was broken with the permission of court and 52 playing cards and Rs. 790/- (Rs. 500 X 1, Rs. 100 X 2, Rs 50 X 1, RS 10 X 4) were taken out and shown to the witness. Witness correctly identified the case property as Ex.P1 and P2 respectively.
5. PW ASI Kushal Pal Singh has deposed that On 22.12.2020, he was posted as ASI at PS Sarai Rohilla. On that day he was on day emergency duty from 08:00 AM to 08:00 PM alongwith Ct. Anand Singh. On that day, both of them were returning after attending a PCR call and were patrolling near Daya Basti railway station on the side of railway track they noticed that two persons were gambling with playing cards under the electricity pole near the wall. PW-2 further deposed that on noticing them those persons mixed the said cards which were in their hands with the money lying in front of them. He alongwith Ct. Anand Singh apprehended those persons who disclosed their names as Rama Shankar and Dal Chand. He asked public persons to join the investigation but none agreed. On counting the playing cards they were found to be 52 and the amount recovered was Rs. 790/-. He kept the said cards and recovered money in white cloth pullinda and sealed with seal of KPS. Seal after use was handed over to Ct. Anand Singh. He prepared one tehrir Ex.PW2/A and handed over to Ct. Anand Singh for registration of FIR who left the spot. After some time Ct Anand FIR no. 515/2020 State Vs. Ramashankar & Anr. Page no. 3 of 10 came back to the spot with original tehrir and copy of FIR and handed over the same to him. He arrested accused persons vide memo Ex.PW1/A and Ex.PW1/B. Their personal search was conducted vide memo Ex.PW1/C and Ex.PW1/D. The seizure memo Ex.PW1/E. The site plan was prepared vide memo Ex.PW1/F. Both accused persons were correctly identified by the witness. Case property were already Ex.P1 and Ex.P2 in the testimony of PW1.
6. Both the accused persons admitted the genuineness of the present FIR Ex. A1, Certificate U/s 65-B Indian Evidence Act Ex. A2 and endorsement upon rukka Ex. A3, accordingly evidence of DO/HC Sandeep Kumar was dispensed with.
7. Thereafter, prosecution closed its evidence.
8. After conclusion of prosecution evidence, statement of accused was recorded u/s 281/313 Cr.P.C separately wherein he claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
9. I have heard Ld. APP for State and Ld. Counsel for the accused as well. I have also perused the record carefully.
OBSERVATIONS AND FINDINGS:
10. I have gone through the rival submissions of both the parties as well as material on record carefully.
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11. As per the version of prosecution, there are two witnesses to recovery namely ASI Kushal Pal (PW-2) and Constable Anand Singh (PW-1). Both PW-1 and PW-2 deposed in their testimony that on 22.12.2020, they were on patrolling duty in the area of Police station, however no document / DD entry have been shown by which it can be proved that they were on patrolling duty in the concerned area.
12. For knowing the importance of the DD entry of arrival and departure of the police officials from the police station, I have perused Chapter 22 Rule 49 of Punjab Police Rules, 1934 which reads as under:
13. "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.
14. Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
15. In the present case, the above said provision appears to have not been complied with by the police officials. As per the prosecution version, at the time of the apprehension of the accused with playing cards and stake money, recovery witnesses were on patrolling duty at the relevant time but the DD entry vide which they had left the PS for patrolling duty has not been FIR no. 515/2020 State Vs. Ramashankar & Anr. Page no. 5 of 10 brought on record. The number of the said DD entry made in Register No. II has not even been brought on judicial record. In my opinion prosecution was under an obligation to prove on record, the above said DD entry vide which above said police officials had left the PS for patrolling duty, so as to prove the possibility of availability of prosecution witnesses at the place of apprehension of the accused. In the facts and circumstances of the case, the prosecution ought to have proved the DD entry by which the above said police officials had left the PS so as to inspire the confidence regarding their availability / presence at the place of apprehension of the accused.
16. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal versus State 1987 (2) Crimes 29 the Hon'ble Delhi High Court 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.
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17. Ld. Counsel for the accused contends that no public witness was joined in the present case despite their availability. I also find that IO has also not made any public witness despite the fact that alleged spot was a public place. In this regard, the explanation of the Prosecution witness is that none of the public persons agreed to join the investigation. The explanation given by the prosecution witness does not seem plausible because in the police report as well as the testimony of the prosecution witnesses, the names of the public persons, who were requested to join the investigations, have not been mentioned. IO has also not taken any action against such public persons who did not tender help to the public servant despite they were being under an obligation to render help on the legitimate request of the public servant.
18. In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"It is repeatedly laid down by this Court that 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 shop- keepers 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 FIR no. 515/2020 State Vs. Ramashankar & Anr. Page no. 7 of 10 perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
19. There are other inconsistencies in the case of the prosecution which have not been explained. The fact that IO and complainant are the same is also a clear violation of judgment in the case of Mohan Lal Vs. The State of Punjab decided by Hon'ble Supreme Court of India on 16.08.2018. In the said case, Hon'ble Apex court has clearly observed that fair investigation from the point of view of an accused is a constitutional right under Article 21 of Constitution of India. It was observed that fair investigation is the very foundation of fair trial and necessarily postulates that the informant and the investigator must not be the same person. It was observed that prosecution is vitiated whenever there is such infraction of the Constitutional guarantee of a fair investigation.
20. Further, PW1 Ct. Anand Singh has deposed that the seal of 'KPS' was handed over to him after sealing the case property, instead of a public/independent witness. However, PW-1 Ct. Anand Singh is of the same team which apprehended the accused persons and he is in fact a subordinate of IO/PW2. Therefore, tampering of case property cannot be ruled out.
21. Furthermore, according to the deposition of prosecution witnesses, the case property was first seized and then rukka was prepared for registration of FIR. Thus, according to the witnesses FIR was registered after seizure of case property. However, the seizure memo (Ex. PW-1/E) bears the FIR no. 515/2020 State Vs. Ramashankar & Anr. Page no. 8 of 10 FIR (Ex. A1) number. At the time of the seizure, FIR number was not available and therefore, FIR no. could not have figured on the seizure memo. The existence of FIR no. on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore, ante timed. This erodes the credibility of the witness who has stated that the seizure memo was prepared on the spot and before the registration of FIR.
22. Lalji Shukla Vs. State (2000) 1 AD (Cr.) DHC, of Delhi High Court it was observed as follows:
"4.....the prosecution has not offered an explanation whatsoever as to under what circumstances number of the FIR (Ex. PW6/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This give rise to two inferences that either the FIR (Ex PW6/B) was recorded prior to the alleged recovery of the contraband or number of the FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
FIR no. 515/2020 State Vs. Ramashankar & Anr. Page no. 9 of 10
23. In view of the aforesaid discussion, I am of the considered view that prosecution has failed to prove the guilt of the accused persons Rama Shankar and Dal Chand beyond reasonable doubt. I hold that the accused persons Rama Shankar and Dal Chand are not found guilty of the charge framed against them and they are acquitted of the charge under section 12/9/55 of Delhi Public Gambling Act framed against them.
24. Case property be confiscated to State as per rules and same be destroyed.
25. File be consigned to record room.
Digitally signed by CHARU CHARU ASIWAL
ASIWAL Date: 2022.06.04
17:46:06 +0530
PRONOUNCED IN THE OPEN COURT (CHARU ASIWAL)
TODAY ON 04th JUNE, 2022 MM-04 (CENTRAL),
DELHI
FIR no. 515/2020 State Vs. Ramashankar & Anr. Page no. 10 of 10