Delhi District Court
State vs . Abdul Rashid Etc. on 16 January, 2010
State Vs. Abdul Rashid etc.
FIR No. 187/98
P.S.: Chandni Mahal
U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC
IN THE COURT OF SH. SIDHARTH MATHUR, METROPOLITAN
MAGISTRATE, CENTRAL - 02, TIS HAZARI COURTS, DELHI
State Vs. Abdul Rashid etc.
FIR No.: 187/98
U/S : 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC
P.S : Chandni Mahal
JUDGMENT
1. S. No. of the Case : 214/02/06
2. Date of Commission of Offence : 18/06/1998
3. Date of institution of the case : 25/11/1999
4. Name of the complainant : S.I. Sunil Kumar
5. Name of accused, parentage & address. : (1) Abdul Rashid S/o Sh. Gabru
(2) Sirajuddin S/o Abdul Rashid
Both R/o B31, First Floor, DDA
Flats,Turkman Gate, Delhi.
6. Offence complained or proved : U/s 12 Gambling Act /224/225/186
353 IPC & 379/511 IPC
7. Plea of Accused : Pleaded not Guilty.
8. Final Order : Acquitted.
9. Date of Final Order : 16th January 2010
JUDGMENT
1. On 18/06/1998, S.I. Sunil Kumar (Complainant), Inspector Inder Singh (the then SHO, P.S. Chandni Mahal), Constable Yashwant & Constable 16.01.2010 Page 1 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC Vinod Kumar were on patrolling of the area via D.D. No. 21A/18.06.1998, when at around 7.20 p.m., S.I. Sunil Kumar got a secret information that 45 persons were gambling in the street behind Kabari market, DDA Flats, Turkman Gate, Delhi, whereupon a raiding party comprising the above police officials was formulated. The said S.I. also asked 45 passersby to join the raiding party, but all of them refused to join after citing their personal/professional difficulties. Thereafter without losing any time, the police party reached the street behind Kabari Market at 7.30 p.m. and found that 4 persons, namely, Ansar, Mohd. Zakir, Iqbal & Abdul Rashid, were gambling there, who on seeing the police party threw their cards & mixed them with the stake money and fled from the spot, whereupon Ct. Yashwant apprehended accused Abdul Rashid at the outer road of the said Kabari Market, while, the remaining 3 gamblers managed to escape. However, after Ct. Yashwant apprehended accused Abdul Rashid, suddenly his son named Shirajuddin reached the said spot and started scuffling with Ct. Yashwant whereby he even tried to snatch the service revolver of Ct. Yashwant in order to illegally rescue his father from the lawful custody of Ct. Yashwant. Henceforth when Ct. Yashwant was trying to prevent his service revolver from being snatched by accused Shirajuddin, both Abdul Rashid & his son Shirajuddin managed to escape from the lawful custody of Ct. Yashwant even before S.I. Sunil Kumar could have reached the spot or could have helped Ct. Yashwant.
16.01.2010 Page 2 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC Thereafter, S.I. Sunil Kumar seized the stake/gambled money of Rs. 2965/, 52 playing cards and one light green coloured bed sheet via seizure memo from the spot of gambling. Though at the stage of seizure of the above case property, also S.I. Sunil Kumar asked 45 passersby to join the investigation, but all of them refused after citing their personal reasons. In these circumstances, the tehrir was prepared by S.I. Sunil Kumar, which was sent to the P.S. through Ct. Vinod Kumar at 9.15 p.m., whereupon the present FIR was lodged and after the receipt of copy of the FIR and tehrir, S.I. Sunil Kumar prepared the site plan and recorded the statement of the witnesses under Section 161 Cr. P.C. After the expiry of 23 days from the date of the incident, the instant investigation was handed over to District Crime Cell (Central) under the orders of the DCP concerned, whereby Inspector Ramesh Chand took over the investigation and arrested the accused Abdul Rashid & Shirajuddin. During the further stages of the investigation, though the investigation was carried out by different I.O.'s, namely, Inspector Ramesh Chand, Inspector Balwant Singh, S.I. Harinder Singh & S.I. Bhanu Pratap, but none of them succeeded in arresting the remaining 3 alleged gambler's who fled on 18.06.1998.
2. After the completion of the usual investigation, the final charge sheet against accused Abdul Rashid & Shirajuddin was filed in the Court on 25/11/1999, whereupon the cognizance of the offences was taken against both 16.01.2010 Page 3 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC the accused, who were directed to be summoned to face trial. Also a Complaint under Section 195 Cr. P.C. in respect of the offences in question against the accused persons was filed by the then ACP Sham Singh in the Court. After being summoned, the provisions of Section 207 Cr. P.C. were complied on 18/02/2000 in respect of both the accused.
3. After hearing the prosecution as well as the defence, the accused persons were charged in the following manner, whereby, Accused Abdul Rashid was charged under Section 12 Delhi Public Gambling Act for gambling with playing cards on a public street alongwith Ansar, Mohd. Zakir & Iqbal on 18/06/1998 at 7.30 p.m. Accused Abdul Rashid was also charged under Section 224 IPC for intentionally offering resistance to his lawful apprehension and for escaping from the custody of Ct. Yashwant on the above time & date.
On the other hand, Coaccused Shirajuddin was charged under Section 186 IPC for voluntarily obstructing public servant Ct. Yashwant from apprehending accused Abdul Rashid on 18/06/1998 at 7.30 p.m. Coaccused Shirajuddin was also charged under Section 353 IPC for voluntarily using criminal force on the aforesaid date, time & place against Ct. Yashwant, who was trying to apprehend Accused Abdul Rashid while acting in discharge of his official duty. Coaccused Shirajuddin was further charged under Section 225 IPC for intentionally offering resistance on the aforesaid date, time & place against the lawful apprehension of accused Abdul Rashid and for intentionally 16.01.2010 Page 4 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC rescuing accused Abdul Rashid from the custody of Ct. Yashwant. Coaccused Shirajuddin was lastly charged under Section 379 read with Section 511 IPC for attempting to steal the service revolver of Ct. Yashwant on the aforesaid date, time & place.
Though in the charges framed against accused Abdul Rashid qua the allegations regarding his intentional resistance to his lawful apprehension and his deliberate escape from the lawful custody of Ct. Yashwant, Accused Abdul Rashid was charged under Section 324 IPC, which section of Law rather should have been Section 224 IPC in view of the said allegations. Further from the record and the separate order on charges dated 03/09/2001, it becomes clear that the mentioning of offence under Section 324 IPC instead of Section 224 IPC in the charge framed against accused Abdul Rashid was inadvertent. Thus it is clarified that the reference to offence under Section 324 IPC in the charge framed against accused Abdul Rashid shall be construed as a reference to the offence under Section 224 IPC.
In view of the aforesaid discussion, it is clear that the accused Abdul Rashid was charged under Section 224 IPC & Section 12 Delhi Public Gambling Act, while, accused Shirajuddin was charged under Section 186/225/353 IPC & 379/511 IPC.
4. During the course of the trial, the prosecution had examined 9 witnesses, whereafter the said separate statements of the accused persons 16.01.2010 Page 5 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC under Section 313 Cr. P.C. were recorded on 01/10/2008, wherein the accused persons pleaded innocence and flagged the defence of "false implication" at the instance of the then SHO Inspector Inder Singh against whom the accused persons had complained to the DCP concerned.
The accused persons also had led evidence in defence, whereby they have examined DW1 Mohd. Ramzan & DW2 Mohd. Rafiq.
5. After the completion of the trial, the matter was fixed for orders for 16/01/2010 and liberty was granted to the Ld. Counsel for the accused persons to address final arguments on any date before the date fixed for orders, since, on 11/01/2010 when the Ld. Defence Counsel was unavailable, the Court refused to adjourn the case any further for final arguments as it was a pretty old case.
However on 15/01/2010 at the oral request of Ld. Defence Counsel, the file was taken up for hearing final arguments, which were accordingly heard and thence the matter was posted for orders for 16/01/2010.
6. I have given a considered thought to the rival submissions made by Ld. APP for state and the Ld. Defence Counsel's, keeping in view the material available on the judicial file.
7. It is a settled proposition of criminal law that prosecution is 16.01.2010 Page 6 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further the burden of proof for proving the charges in a criminal trial throughout the trial rests on the prosecution which never shifts on to the accused. Also in a criminal trial, the accused is entitled to the benefit of every reasonable doubt appearing in the prosecution story.
8. PW1 H.C. Vikram Singh deposed that on 18/06/1998, he was posted as Duty Officer from 4.00 p.m. to 12.00 a.m., when at around 9.25 p.m., a tehrir was sent by S.I. Sunil Kumar (PW8) through Ct. Vinod (PW5), whereupon the present FIR Ex. PW1/A (OSR) was lodged. PW1 was cross examined on behalf of the defence.
PW2 H.C. Rajbir Singh deposed that on 18.06.1998, he was the MHC (M) at P.S. Chandni Mahal & on that day, he had issued a revolver No. 1351 with 5 live cartridges to Ct. Yashwant against an entry in a register, which entry was also signed by Ct. Yashwant (PW4). PW2 also deposed that he handed over the photocopy of the said register entry to the I.O. during investigation and further deposed that the said register has now been 16.01.2010 Page 7 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC destroyed since it was a temporary/rough register. PW2 was also cross examined on behalf of the defence.
9. PW3 Inspector Inder Singh deposed that on 18/06/1998, he was on patrolling alongwith PW4 Ct. Yashwant, PW5 Ct. Vinod & PW8 S.I. Sunil Kumar, when at around 7.20 p.m., PW8 received a secret information about alleged gambling by some persons in a street behind Kabari Market, DDA Flats, Turkman Gate, whereupon I.O. (PW8) asked 45 passersby to join the raiding party but since none of them agreed, hence the raiding party comprising of the above 4 police officers was formed, who then raided the spot of illegal gambling and found accused Abdul Rashid, Ansar, Iqbal & one unknown person gambling at the said public place. PW3 also deposed that on seeing the police party, all the above 4 persons mixed their cards & money by throwing them on the bed sheet, whereupon they tried to flee from the spot. PW3 also deposed that he then chased Iqbal, while PW4 Ct. Yashwant chased accused Abdul Rashid, PW5 Ct. Vinod chased Ansar and one unknown person. PW3 also deposed that PW8 S.I. Sunil Kumar did not chase anybody and remained present at the spot. As per PW3, when he came back from the unsuccessful chase of accused Iqbal, PW4 Ct. Yashwant told him that though he had apprehended accused Abdul Rashid but coaccused Shirajuddin (son of accused Abdul Rashid) picked up a scuffle with him and managed to procure the 16.01.2010 Page 8 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC escape of accused Abdul Rashid from his lawful custody. PW3 also deposed that PW4 Ct. Yashwant told him that during the said scuffle, coaccused Shirajuddin also tried to snatch his service pistol.
PW3 further deposed that the I.O. (PW8) thereafter seized Rs. 2965/ (stake money), 52 playing cards with red & yellow flowers and a light green coloured bed sheet via seizure memo Ex. PW3/A. As per PW3, the said I.O. thereafter prepared tehrir and gave the same to PW5 Ct. Vinod for registration of FIR and after the registration of the FIR, the said I.O. also prepared the site plan. The case properties including Rs. 2965/, 52 playing cards & one light green coloured bed sheet were identified by PW3 as Ex. P1 to P3 respectively. PW3 was cross examined on behalf of the defence.
10. PW4 was H.C. Yashwant, who was one of the members of the raiding party and whose service revolver was allegedly attempted to be snatched from him by accused Shirajuddin for managing the rescue of accused Abdul Rashid from his custody. The testimony of PW4 on most of the material aspects is a mere repetition of what PW3 has already deposed and thus the same is not repeated for the sake of brevity whereby I shall only be referring to that portion of the examination in chief of PW4, wherein he has deposed about certain additional & material facts. PW4 apart from deposing what has already been deposed by PW3 has also testified that when accused 16.01.2010 Page 9 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC Shirajuddin was scuffling with him in order to rescue his father/accused Abdul Rashid from his custody, PW8 S.I. Sunil Kumar arrived at the spot of scuffle and on seeing PW8, both the accused fled from the spot while PW4 was busy in protecting his service revolver. PW4 also identified the case properties as P1 to P3 in a similar manner as was identified by PW3. PW4 was cross examined on behalf of the defence.
11. PW5 Ct. Vinod was the third member of the raiding party. The testimony of PW5 on most of the material aspects is a mere repetition of what PW3 & PW4 have already deposed and thus the same is not repeated for the sake of brevity whereby I shall only be referring to that portion of the examination in chief of PW5, wherein he has deposed about certain additional facts. PW5 apart from deposing what has already been deposed by PW3 & PW4 has testified that when the raiding party reached the spot of gambling, 4 persons were found to be gambling with cards, who on seeing the police party ran away from the spot, whereupon he unsuccessfully chased Ansar. PW5 also deposed that it was PW4 who told him that accused Shirajuddin had picked up a scuffle with him. PW5 also deposed to have taken the tehrir prepared by PW8 S.I. Sunil Kumar to the P.S. and got the case registered on its basis. PW5 also deposed that after the registration of the FIR, he brought back the copy of the FIR & original tehrir back to the spot of the raid and handed over the same to PW8 S.I. Sunil Kumar. PW5 also identified the case 16.01.2010 Page 10 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC properties as P1 to P3 in a similar manner as was identified by PW3 & PW4. PW5 was cross examined on behalf of the defence.
12. PW6 Inspector Ramesh Chand deposed that on 29/06/1998, he was assigned the investigation of the present case as he was posted with Crime Cell (Central District) on that day. PW6 deposed that on 07/07/1998, he visited P.S. Chandni Mahal with PW7 S.I. Keshav Bhardawaj and recorded the statements of PW2, PW3 and PW8, whereafter he called accused Abdul Rashid, Shirajuddin & Zakir, but only interrogated accused Abdul Rashid & Shirajuddin since Zakir did not appear before him. PW6 also deposed that after the interrogation of accused Abdul Rashid & Shirajuddin, they were arrested on 17/07/1998 by him via respective arrest memo's Ex. PW6/A & PW6/B and were also personally searched via respective personal search memo's Ex. PW6/C & PW6/D. PW6 was cross examined on behalf of the defence.
13. PW7 S.I. Keshav Bhardawaj deposed that on 17/07/1998, he had participated in the investigation of the present case with PW6, whereupon both the accused were arrested in his presence and were personally searched via respective arrest memos & personal search memos Ex. PW6/A to Ex. PW 6/D. PW7 was cross examined on behalf of the defence. 16.01.2010 Page 11 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC
14. PW8 S.I. Sunil Kumar was the 1st Investigating Officer & the head of the raiding party. The testimony of PW8 on most of the material aspects is a mere repetition of what PW3 to PW5 have already deposed and thus the same is not repeated for the sake of brevity whereby I shall only be referring to that portion of the examination in chief of PW8, wherein he has deposed about certain additional & material facts. PW8 apart from deposing what has already been deposed by PW3 to PW5, has also testified that he was present not only at the spot of gambling but also at the spot where both the accused scuffled with PW4 and then managed to escape from the custody of PW4. PW8 also deposed that in order to rescue accused Abdul Rashid from the custody of PW4, accused Shirajuddin even attempted to snatch the service revolver of PW4.
PW8 also deposed that after he seized the stake money of Rs. 2965/, 52 playing cards & one light green coloured bed sheet from the spot of gambling via seizure memo Ex. PW3/A, he prepared the tehrir Ex. PW8/A and dispatched the same to the P.S. through PW5. After the registration of the case, PW8 prepared the site plan Ex. PW8/B and recorded the statement of PWs.
PW8 after the completion of the above investigation at the spot of the incident, then returned to the P.S. and deposited the entire case property with the malkhana. PW8 also deposed that after 23 days of the registration of 16.01.2010 Page 12 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC the case, the instant investigation was taken over by District Crime Cell (Central). PW8 identified the case properties as P1 to P3 in a similar manner as has been identified by PW3 to PW5. PW8 was cross examined on behalf of the defence.
15. PW9 ACP Sham Singh deposed that on 17/08/1999 in his capacity as the ACP, Darya Ganj, he filed the complaint under Section 195 Cr. P.C. in context of the present incidents involving attack on a police officer, namely, PW4. PW9 proved the said complaint filed under Section 195 Cr. P.C. as Ex. PW9/A. PW9 was cross examined on behalf of the defence.
16. In the defence, the accused produced DW1 Mohd. Ramzan & DW2 Mohd. Rafiq, whose testimonies are similar to each other, wherein both of them have deposed that in June 1998, PW3 the then SHO Inder Singh demanded a bribe of Rs. 5,000/ from accused Abdul Rashid, whereupon accused Abdul Rashid went to the office of DCP with Choudhary Qayamuddin & gave a complaint dated 25/07/1998 against the said SHO. DW1 & DW2 had also deposed that the accused persons also gave complaint against the said SHO with the AntiCorruption Bureau & the Chief Minister via complaints Ex. DW1/A & DW1/B. Both the aforementioned witnesses also deposed that the accused persons have been falsely implicated in this case.
Both the defence witnesses were cross examined on behalf of the 16.01.2010 Page 13 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC prosecution.
17. In order to prove its respective charges beyond reasonable doubt against the accused persons, the prosecution was required to prove the following incidents :
a) That the police party comprising of complainant S.I. Sunil Kumar, victim Ct. Yashwant, the then SHO Inder Singh and Ct. Vinod were on patrolling duty on 18/06/1998 and that Ct. Yashwant was carrying his service revolver with him on that day ;
b) That the aforementioned police party got a secret information about a illegal gambling taking place in a public street behind Kabari Market ;
c) That the said police party found accused Abdul Rashid & his friends Ansar, Mohd. Zakir & Iqbal gambling in the aforementioned public street on the aforementioned date at 7.30 p.m. who after seeing the police party, they tried to flee from the spot of gambling ; and
d) That accused Abdul Rashid though was apprehended by Ct. Yashwant but thereafter coaccused Shirajuddin tried to rescue him from the lawful custody of Ct. Yashwant by scuffling with PW4 and by trying to snatch the service revolver of Ct. Yashwant whereby accused Shirajuddin ultimately succeeded in rescuing accused Abdul Rashid from the lawful custody of PW4 whereby both of them fled away.
Hence, I shall now proceed to appreciate the evidence produced on 16.01.2010 Page 14 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC record by the prosecution so as to evaluate as to whether the prosecution has succeeded in its duty or not.
18. It has come on record from the testimonies of PW3 to PW5 & PW8 that at the time of the receipt of the secret information on 18/06/1998, the aforementioned 4 police officials were on patrolling duty via D.D. No. 21 A/18.06.1998. PW1 has placed on record the aforementioned D.D. Entry no. 21A as Ex. PW1/B, which has been recorded on a plain sheet of paper instead of any Roznamcha. On perusal of Ex. PW1/B, it becomes clear that PW3 to PW5 & PW8 left the P.S. for area patrolling at 5.05 p.m. on 18/06/1998 in a Govt. vehicle bearing No. DL2C B 0420. It is further clear from the aforementioned D.D. entry that it also does not bear any stamp or seal whatsoever of the concerned P.S. so as to assume that it pertained to P.S. Chandni Mahal. Though the said D.D. Entry contains signatures at its bottom, but, the signatory has not even given his name or designation so as to assume that it was made by PW1.
The aforesaid D.D. Entry appearing on a plain paper without any seal or stamp of the concerned P.S., thus can not be said to have been made or maintained as per Punjab Police Rules, whereby it should have been entered into the daily diary/roznamcha maintained at the P.S.
19. Next, at the bottom of the said D.D. Entry it is written that "it was 16.01.2010 Page 15 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC the true copy of the original", however, neither the original of the said D.D. Entry, nor any roznamcha containing the record of the said entry was produced/placed on record so as to show to this Court that any such D.D. Entry was actually made on that day or that it was entered in the roznamcha maintained at the P.S., since as per Punjab Police Rule No. 22.49, such D.D. Entry was mandatorily required to be entered in Register No. 2. The prosecution should have produced the original of said D.D. Entry or the roznamcha comprising the said entry so as to remove all the doubts regarding the possible fabrication of said D.D. Entry by the police party.
However, the nonproduction of original of D.D. Entry Ex. PW1/B, non production of the register containing the said D.D. Entry and the aforementioned lacuna's qua the said D.D. Entry clearly shows that the existence of the said D.D. Entry is surrounded by doubts.
20. Next, PW1 has deposed in his cross examination that in the D.D. Entry Ex. PW1/B, it was recorded by him that the said police officials left the P.S. for patrolling via Govt. Vehicle No. DL2C B 0420, but, if the cross examination of PW3 Inspector Inder Singh (the then SHO & one of the prominent member of the patrolling team) is perused, it would reveal that in strict contrast to the testimony of PW1, PW3 has deposed that the police team on 18.06.1998 had left the P.S. on feet for patrolling. PW3 in his cross examination not only 16.01.2010 Page 16 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC denied the suggestion that the patrolling team had left the P.S. on a Govt. vehicle, but also went on to depose that the D.D. Writer (PW1) had wrongly mentioned in the said D.D. Entry Ex. PW1/B that the police team had left the P.S. for patrolling on a Govt. vehicle. Further another member of the patrolling party i.e. PW5 in his cross examination had also deposed that the police patrolling team was on feet while patrolling on 18.06.1998.
Thus the aforementioned testimonial statements of PW3 & PW5 conveys that the police team comprising PW3 to PW5 & PW8 had left the P.S. on 18/06/1998 for patrolling on feet via D.D. Entry Ex. PW1/B, while the testimony of PW1, who had recorded the said entry, conveys that the police team left for patrolling on 18.06.1998 on a Govt. Vehicle. This contradiction between the testimonies of PW1 (D.D. Writer) on one side & PW3 & PW5 (members of the patrolling party) on other side in respect of the mode by which the police patrolling party left the P.S. on the fateful day clearly brings the said D.D. Entry under further doubt, whereby, it would not be safe to rely upon the said piece of document.
21. Further from the reading of the testimony of PW1 in the light of the said D.D. Entry Ex. PW1/B, it transpires that the police party comprising PW 3 to PW5 & PW8 had left the P.S. for patrolling at 5.05 p.m. PW3 in his cross examination had deposed that the police party left the P.S. for patrolling at 5.30 16.01.2010 Page 17 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC p.m., while PW4 testified that the police party left the P.S. for patrolling at 5.45 p.m. PW8 has deposed in his cross examination that police party had left the P.S. at 5.15 p.m for patrolling. Though in normal circumstances, the aforementioned contradictions appearing from the testimonies of PW's regarding the time of leaving of the patrolling party on 18.06.1998 would have been termed as insignificant, but, in the facts of the present case wherein there are numerous other circumstances which have already brought the said D.D. Entry Ex. PW1/B under serious doubt, then such contradictions inter se PW1, PW3, PW4 & PW8 in respect of the time of the leaving of the patrolling party becomes highly significant, whereby the authenticity of the said D.D. Entry Ex. PW1/B has dipped further.
22. Also, nothing has come on record so as to even remotely suggest that the said police officials made any arrival entry in the roznamcha register once they came back to the P.S. after the completion of their investigation in respect of the present case. The said police officials as per Rule No. 22.49 of the Punjab Police Rules though were required to make an entry in the Daily Register of the P.S. on their arrival back to the P.S. after their patrolling & the investigation on 18.06.1998, but, neither any such document has been brought on record, nor even talked about by any of the PW's in their testimonies so as to even prima facie suggest that the said members of the patrolling party had in fact made any such arrival entry. Thus it will not be an anomaly to observe that 16.01.2010 Page 18 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC no such entry was made by any of the members of the patrolling party on their arrival back to the P.S. on 18.06.1998.
My aforementioned discussion shows that the D.D. Entry 21A Ex. PW1/B can not be said to be free from all doubts and thus it can be said that the prosecution has not proved the possibility of the presence of the members of the patrolling party on 18.06.1998 at any place outside the P.S. The prosecution either by proving the departure of the said patrolling party through some piece of reliable evidence or by proving/producing the arrival entry of the said patrolling party might have succeeded in proving the probability of the presence of the patrolling party at the place of the receipt of the secret information, at the place of the alleged gambling & at the place of the alleged apprehension of accused Abdul Rashid, but, the failure of the prosecution to prove either of the above has made it difficult for the Court to believe that the said patrolling party was infact on patrolling on 18/06/1998 at the time when the offences in question were allegedly committed.
23. It has been mentioned in tehrir Ex. PW8/A that after receiving the secret information about illegal gambling but before conducting the raid, PW8 had asked 45 passersby's to join the police raiding party. It is also recorded in the said tehrir that the said 45 passersby's refused to join the police party. Similarly, it is also recorded in the said tehrir that before seizing the case properties Ex. P1 to P3 via seizure memo Ex. PW3/A, PW8 again asked 45 16.01.2010 Page 19 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC passersby to join the investigation, but, again the said passersby's refused to join the police party. PW3 in his examination in chief has admitted that after receiving the secret information, PW8 (I.O.) had asked 45 passersby's to join the raiding party but all of them refused to join the same. Similar deposition was also made by PW4, PW5 & PW8 in their respective examination's in chief.
Also, PW3 in his cross examination had deposed that the area was thickly populated which comprised of shops, houses, rickshaw pullers & cyclists in the vicinity. PW3 also had admitted in his cross examination that no member of the police team asked any such shopkeeper or resident to join the investigation due to the paucity of time. PW3 also had admitted that PW8 was heading the raiding party on 18.06.1998.
PW8 also had admitted in his cross examination that neither he asked anybody to join the raiding party, nor he was able to give notice to the persons refusing to join the raiding party due to the paucity of time.
The aforementioned testimonies would clearly bring out the contradiction, where from on one hand it appears that 45 passersby's were asked by PW8 to join the raiding party, while, on other hand it transpires that PW8 did not ask anybody to join the raid or seizure due to the paucity of time. Thus this contradiction has not not only depreciated the veracity of the testimony of PW3 to PW5 & PW8, but also had negatively effected the authenticity of the contents of tehrir Ex. PW8/A. 16.01.2010 Page 20 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC Further, it is also pertinent to note that PW8 (the head of the raiding party) has spoken nothing about the fact recorded in tehrir Ex. PW8/A, whereby he allegedly had asked 45 passersby to join the investigation at the time of the seizure of the case properties Ex. P1 to P3. Similarly PW3 also have spoken nothing about the said fact. Further PW4 in his cross examination had deposed that at the time of the seizure of the case properties, though, the public persons were present but they refused to join the police investigation, while, on the other hand, PW5 had admitted in his cross examination that no public person was present at the time of the seizure of the case property. Once PW8 himself had testified that no member of the public was joined by him in any of the police proceedings due to the paucity of time, then from the above testimonies, further contradiction has appeared regarding the contents of the tehrir Ex. PW8/A, which has further dipped the veracity of the testimony of the members of the raiding party and also had further reduced the authenticity of the contents of Ex. PW8/A.
24. Further from the tehrir Ex. PW8/A and the testimonies of PW3 to PW5 & PW8, it is clear that no serious attempt was made by the concerned police officials to get independent public persons to join the police proceedings of investigation, raid and subsequent seizure of the case property despite availability of such witnesses.
If I were to believe the contents of Ex. PW8/A that the members of 16.01.2010 Page 21 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC the public were asked to join the police proceedings, but could not be joined due to their refusal, then in the circumstances like the present one, if members of the public had in reality refused to assist the members of the raiding party, the police officals could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of seeking their initial assistance for raid or later at the time of seizure of the case property since at that time there was no possibility of crime going undetected. At least in these facts and circumstances of the case, In my opinion the police officials concerned must have asked the passersby/public persons available at the spot of the receipt of the secret information and at the spot of the seizure of the case property by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. However, the circumstances appearing on record suggests otherwise, whereby it is an admitted position on record that neither any public witnesses were joined at all the possible stages where they were available, nor any sincere effort was made on behalf of the police party to join the said public witnesses, which has brought the entire police proceedings of the raid, seizure of the case property and subsequent investigation conducted at the spot under serious doubt.
25. It is also clear from the record that though the case properties pertaining to the alleged gambling i.e. Ex. P1 to P3 were seized via seizure 16.01.2010 Page 22 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC memo Ex. PW3/A, but, the said case properties were never sealed whereby they remained unsealed throughout the investigation & trial. PW3 in his cross examination had categorically admitted that the case properties were never sealed during or after the seizure. It is also clear from the testimonies of PW3 to PW5 & PW8 that the case properties though were identified by them in the Court but they were always produced from the malkhana in an unsealed condition. It has gone unexplained as to why PW8 did not seal the case property after seizing the same via seizure memo Ex. PW3/A. The omission on behalf of the I.O. to seal the case property and the omission on behalf of the prosecution to explain the said failure of the I.O. has landed the entire case of the prosecution in the whirlpool of serious doubt, whereby the possibility of the entire investigation being motivated can not be ruled out.
Further no evidence has been placed on record so as to substantiate that part of the testimony of PW8, wherein he had deposed that after recording the statement of PWs at the spot of seizure, he had deposited the case property in the concerned malkhana. Neither any witness has been produced to corroborate the factum of the said deposit of the case property by PW8 with the malkhana on 18/06/1998, nor any roznamcha or malkhana register has been placed on record so as to substantiate the said assertion of PW8 whereby he had deposited the case property with the malkhana on 18.06.1998. These twin circumstances regarding the nonsealing of the case property and the failure of the prosecution to prove the deposit of the case 16.01.2010 Page 23 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC property by the PW8 with the malkhana has not only invited more trouble for the case of the prosecution but has also added one more question mark over the manner in which the investigation was being carried out. Also, neither in the seizure memo Ex. PW3/A, nor in the testimonies of any of the members of the raiding party, the denomination of the notes seized from the spot of gambling have been mentioned, which adds to further trouble for the case of the prosecution.
26. The testimonies of various PWs is grossly insufficient so as to even prima facie presume that PW4 was carrying any service revolver with him on the date of the incident, so as to be attempted to be snatched by accused Shirajuddin. PW2 had deposed that on 18/06/1998, he had issued a revolver bearing No. 1351 with 5 live cartridges to PW4 via separate entry bearing signatures of PW4 made in the relevant register maintained at the P.S. PW2 also had deposed that the said register containing the said entry was not a regular register, but rather was a temporary/rough register, which has now been destroyed. PW2 also had deposed that the photocopy of the said register entry was handed over by him to the I.O. (PW6) during investigation. In his cross examination PW2 had admitted that no D.D. Entry was made by him in the Roznamcha regarding the issuance of the said revolver to PW4 and further admitted that also no seizure memo was prepared by the I.O. in respect of his handing over of the photocopy of the said register entry to the I.O. PW6 16.01.2010 Page 24 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC though in his evidence had deposed that he had recorded the statement of the concerned MHC (M) under Section 161 Cr. P.C. but neither the said statement U/s 161 Cr. P.C. has been exhibited, nor the same has been proved by producing the original (since only the photocopy of the said statement is visible on record).
Next, in the said statement of PW2 recorded by PW6 under Section 161 Cr. P.C., which is dated 07/07/1998, it has been recorded that PW2 (MHCM) had given to PW6 the copy of the said register entry regarding the issuance of revolver by him to PW4. However, PW6 had spoken nothing about the seizure of the said photocopy of the register entry from PW2. Also no such photocopied register entry allegedly made by PW2 & signed by PW4 has been placed on record, whereby it is hard to believe that any such entry would have been ever made by PW2 in the manner alleged by him.
As per Rule 6.8 of the Punjab Police Rules, an Arms Distribution Register is to be maintained. Also if a Govt. revolver is issued to an police officer during his duty, then the issuing officer must mention the name/description of the revolver, name & rank of the officer to whom it is being issued, date of its issuance & the date of return of the revolver in the Part II of the said Register. Now from the facts of the present case and the testimony of PW2, it is clear that the requirement of Rule 6.8 has been clearly violated in the present case. PW2 though was required to enter the details of the said revolver issued to PW4 with the name & rank of PW4, date of its 16.01.2010 Page 25 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC issuance & the date of its return in the requisite register as per Rule 6.8, but once the same is admittedly not done by PW2, then it had made it difficult to assume that PW4 was issued any revolver on 18.06.1998 or that PW4 was possessing any such revolver on the date of the incident.
Further, PW2 also neither has placed any document on record to substantiate the factum of destruction of the alleged rough register containing the said entry of release of revolver to PW4, nor has placed anything on record to show as to under whose authority the said register containing the entry in question was destroyed. The prosecution has not explained as to under whose authority, PW2 made the said entry in question regarding the release of the revolver in a rough register though as per Punjab Police Rule No. 6.8, he was required to make such an entry in a proper register.
Also it seems a bit strange that though the patrolling party comprised of police officials of the ranks of Inspector (PW3) & SubInspector (PW8) but for undisclosed reasons, the said high ranking police officials preferred not to carry any weapons on their own while a low ranking officer like PW4 Ct. Yashwant was allegedly carrying a service revolver. Nothing has come on record that PW4 used to carry a service weapon on routine basis during patrolling, so as to make it probable that he was carrying the weapon in question on the date of the incident.
Thus for the above reasons it is highly doubtful that PW4 was carrying any weapon on the fateful day, whereby it can be said that the 16.01.2010 Page 26 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC prosecution has not proved beyond reasonable doubt that on the date of the incident PW4 was either issued any revolver by PW2 or that on the date of the incident, PW4 was carrying any such weapon, so as to be snatched or attempted to be snatched by Accused Shirajuddin.
27. Next, PW3 in his evidence has clearly deposed that when the patrolling party reached the spot, all the 4 gamblers including accused Abdul Rashid tried to flee from the spot, whereupon he himself chased Iqbal, while PW4 chased Abdul Rashid and PW5 chased Ansar & one unknown person. PW3 had deposed that during this entire chase, PW8 remained present at the spot. PW3 & PW5 have deposed that they did not eye witness the incident of scuffle between the accused persons & PW4. PW4 had deposed that when the accused persons were scuffling with him and accused Shirajuddin was trying to snatch his revolver, PW8 came towards him whereupon the accused persons fled. PW8 likewise also had deposed that when the accused persons were scuffling with PW4 & accused Shirajuddin was trying to snatch the revolver of PW4, he saw it with his naked eyes.
However once the prosecution has failed to prove beyond reasonable doubt the facts of issuance of the service revolver to PW4 and the possession of any such revolver by PW4 on the date of the incident, then this Court finds it difficult to believe the aforementioned assertions made by PW4 & PW8 in respect of the scuffle started by the accused persons with PW4 and 16.01.2010 Page 27 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC the subsequent attempt by accused Shirajuddin to snatch the service revolver of PW4. In view of the numerous contradictions appearing in the testimonies of the members of the raiding party i.e. PW3 to PW5 & PW8 as already been discussed in the former portion of the order, the said witnesses have lost the trust of this Court, whereby it has become really hard for the Court to believe the testimony of any of these witnesses.
28. Apart form the above, there are few other circumstances as well which makes the false implication of the accused persons and the instant investigation being motivated a grave possibility.
It is clear from the challan, tehrir Ex. PW8/A, the testimonies of PW3 & 8 that PW8 not only headed the raiding party after receiving secret information but also had prepared the tehrir Ex. PW8/A, whereby he became the complainant. It is also clear from the testimonies of PW3 to PW5 & PW8 that after registration of the FIR , PW8 prepared the site plan Ex. PW8/B & also recorded the statements of PWs. The aforementioned circumstances expresses that PW8 who was the complainant also had investigated the instant case during the most important initial stages involving recording of the statements of PW's and seizure of the case property. The facts of PW8 being the complainant, being the head of the raiding party & being the first investigating officer, all in one place is something which adds strength to the observation of the Court that the investigation not only seems to be faulty but 16.01.2010 Page 28 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC seems to be motivated as well. The most important facet of the criminal justice is the fairness of investigation, whereby it was required that the complainant of this case should not have been made to Investigate this case, since a person cannot be a Judge in his own cause.
29. From the challan, tehrir Ex. PW8/A and testimonies of PW3 to PW5 & PW8, it is clear that apart from the accused Abdul Rashid, 3 other persons namely, Mohd. Zakir, Iqbal & Ansar were also gambling in the street behind Kabari Market. It has also clear from the record that the said 3 gamblers, namely, Mohd. Zakir, Iqbal & Ansar were neither arrested by the police, nor were charge sheeted by the police for illegal gambling and nor were even mentioned in Column No. 2 of the challan. Once the names of the said 3 gamblers were known to the police party, then even if they could not be arrested during the investigation, it was incumbent for the I.O. filing the challan to mention those 3 persons, namely, Mohd. Zakir, Iqbal & Ansar as absconders in Column No. 2 of the challan or in the alternative, the I.O. could have got them declared as P.O. during the investigation. But the I.O. filing the challan instead of doing the above, rather only simply recorded in the challan that despite efforts the said persons could not be arrested and filed the challan against the present accused without even mentioning the names of remaining 3 gamblers in Column No. 2. The I.O. also did not file any proof which could have showed his efforts whereby he allegedly tried to nab the said 3 gamblers. 16.01.2010 Page 29 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC The above omissions of the I.O. has created further doubt over the manner in which the investigation was carried out.
Also the 2nd I.O. PW6 in his evidence had deposed that during the investigation, he once had called accused Abdul Rashid, Shirajuddin & Zakir for interrogation, but since accused Zakir did not appear before him hence he only interrogated accused Abdul Rashid & Shirajuddin whereupon accused Abdul Rashid & Shirajuddin were arrested. Hence from this part of the testimony of PW6, it appears that PW6 not only knew Zakir but he also had in contact with him since only then he could have called him for interrogation. Once it is clear on record that said Zakir was in touch with PW6, then PW6 should have given cogent reason as to what prevented him from nabbing Zakir though Zakir was in touch with him. Except for vaguely deposing that Zakir failed to appear before him that is why he could not arrest Zakir, no plausible legal reason was given by PW6 that any genuine efforts were made by him to arrest the remaining 3 gamblers as named above. Thus the circumstances of the remaining 3 gamblers as named above neither being arrested, nor being charge sheeted creates a doubt regarding the very presence of any such 3 gamblers and their alleged involvement in the illegal gambling whereby the possibility of these 3 alleged gamblers being hypothetical characters evolved to strengthen the case against the instant accused persons cannot be ruled out beyond reasonable doubt.
16.01.2010 Page 30 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC CONCLUSION
30. In view of the above, it is clear that the prosecution has failed in proving its case on any of the counts against any of the accused persons and hence, there is no need to discuss the veracity of the testimonies of the defence witnesses. For the failure of the prosecution to prove its case on requisite yardsticks, the accused persons have entitled themselves for acquittal, whereby the accused persons are acquitted of all the charges leveled against them. The B/B & S/B of the accused are discharged. The original documents of the surety, if any on record, be released to the surety after cancellation of the endorsements thereupon as and when so applied. The case properties be destroyed as per rules. File be consigned to record room after due compliance. Announced in the open court on 16.01.2010 (SIDHARTH MATHUR) M.M. (CENTRAL - 02) DELHI 16.01.2010 Page 31 of 31 Pages State Vs. Abdul Rashid etc. FIR No. 187/98 P.S.: Chandni Mahal U/s: 12 Gambling Act /224/225/186/353 IPC & 379/511 IPC 16.01.2010 Page 32 of 31 Pages