Delhi District Court
State vs . Suraj Rathore & Anr. on 1 February, 2023
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-000219-2021
Cr. Case 233/2021
STATE Vs. SURAJ RATHORE & ANR.
FIR NO. 530/2020
P.S Kapashera
01.02.2023
JUDGMENT
Case No. : 233/2021 Date of commission of offence : 14.12.2020 Date of institution of the case : 05.01.2021 Name of the complainant : HC Diwan Singh
Name of accused and address : 1. Suraj Rathore S/o Sh. Mahesh Rathore R/o Gullu Ka Makan, Gali No. 4, DC Office Wali Gali, Kapashera, South-West, Delhi.
Permanent address:
H. No. 5, Near Bhawani Market, Sector-22, Noida, Gautam Buddha Nagar, U. P.
2. Mukesh Kumar S/o Sh. Rati Ram Rathore R/o Gullu Ka State Vs. Suraj Rathore & Anr. Page No.1 / 16 Makan, Gali No. 4, DC Office Wali Gali, Kapashera, South-West, Delhi.
Permanent address:
Village Pindari, Post-Sandi, Tehsil Bilak Ram, Sandi, Hardoi, U. P. Offence complained of or proved : U/s 12 Delhi Public Gambling Act, 1955 Plea of the accused : Pleaded not guilty Final order : Accused No. 1 -
Acquitted Accused No. 2 -
Acquitted
Date reserved for judgment : 20.01.2023.
Date of judgment : 01.02.2023
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused persons Suraj Rathore and Mukesh Kumar (hereinafter referred to as accused no. 1 and accused no. 2 respectively), pursuant to charge sheet filed qua them under Section 12 of Delhi Public Gambling Act, 1955 (hereinafter the Delhi Public Gambling Act), subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 530/2020.
2. It is the case of the prosecution that on 14.12.2020, at about 11.00 p.m, at DC Office Wali Gali behind DC Office State Vs. Suraj Rathore & Anr. Page No.2 / 16 near Gullu House Kapashera, Delhi, the accused persons were found gambling and from their possession multi-coloured playing cards, one blue pen, one diary having label on it "today O duplicate book 100 sheet duplicate and Tislicate" with red and blue front side and white coloured back side and a total cash of Rs. 1130/- (two notes of Rs.200/-, five notes of Rs. 100/-, four notes of Rs.50/- and three notes of Rs. 10/-) were recovered. The same were seized by the police officials and thereafter, an FIR was registered qua the accused persons. After investigation, the police filed the present charge sheet against the accused persons for commission of offence punishable u/s Section 12 of Delhi Public Gambling Act.
3. Complete set of charge sheet and other documents were supplied to the accused. Notice u/s 12 of Delhi Public Gambling Act, read with section 34 of Indian Penal Code (hereinafter IPC), was served to both the accused persons, to which they pleaded not guilty and claimed trial. Further, the accused persons, vide their statement u/s 294 Cr.P.C, had admitted the genuineness of copy of FIR no. 530/2020, alongwith certificate u/s 65B of Indian Evidence Act, Ex. A1 (colly), DD No. 94A and 97A both dated 14.12.2020 Ex. A2 (colly).
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined four witnesses in total.State Vs. Suraj Rathore & Anr. Page No.3 / 16
5. PW-1 was Ct. Lokesh, who deposed that he was posted at Kapashera as Munshi of Malkhana. He deposed that as per record, on 14.12.2020, the case property of the present case was deposited by HC Diwan Singh and the same was mentioned in register no. 19 vide entry no. 2750 by the then MHC(M) HC Ashok. The said PW deposed that he could identify the writing of HC Ashok as he had worked with him and he had seen him writing and signing during the course of the day. Through him, copy of entry no. 2750 was exhibited as Ex. PW1/A (OSR).
6. PW-2 was HC Rajbir Singh (inadvertently mentioned as PW1), who deposed that on 14.12.2020, he was posted at PS Kapashera as HC. On that day, he was on patrolling duty alongwith Ct. Amarjeet. At about 11.00 PM, when they reached at DC Office wali gali, Kapashera, they saw some gathering near an electricity board. They went there and found that some gambling activity (satta) was going on. After seeing them, the accused persons fled away. The said PW then deposed that they managed to catch hold of two persons whose names were revealed as Suraj Rathore and Mukesh Kumar and from their possession Rs. 1130/-, one deck of card, one blue/white pen and one diary were recovered. The said PW then deposed with respect to the investigation carried out in the present case.
Through him, tehrir was exhibited as Ex. PW1/A, site plan was exhibited as Ex. PW1/B, seizure memo Ex. PW1/C, personal search memos and arrest memos of accused persons were exhibited as Ex. PW1/D (colly 4) and case property was exhibited as Ex. P1 (colly).
State Vs. Suraj Rathore & Anr. Page No.4 / 167. PW-3 was HC Amarjeet (inadvertently mentioned as PW2), who deposed on similar lines as PW2 and also deposed with respect to the investigation carried out by IO in the case.
8. PW-4 was HC Rajbir Singh (inadvertently mentioned as PW3), i.e., the IO in the present case who deposed with respect to the investigation carried out by him after the investigation was marked to him.
9. On account of admission of accused u/s 294 Cr.P.C, PW at serial no. 3 SI Balwan Singh, as per list of prosecution witnesses was dropped from the list of prosecution witnesses and the formal proof of the documents sought to be proved by him was dispensed with. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
10. Statements of the accused persons u/s 281 Cr.P.C read with Section 313 Cr.P.C. were recorded separately in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them and stated that they have been falsely implicated in the case. Accused persons further opted to not lead evidence in their defence.
FINAL ARGUMENTS:
State Vs. Suraj Rathore & Anr. Page No.5 / 1611. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 12 of Delhi Public Gambling Act read with section 34 IPC has been proved beyond doubt.
12. Per contra, Ld. Counsel for accused persons has stated that there is no legally sustainable evidence against the accused persons and that the accused persons have been falsely implicated by the police officials and the recovery of case property has been planted upon them. Arguing further, Ld. counsel has inter-alia submitted that no public witnesses were joined by the police officials during investigation. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused persons be given the benefit of doubt and are therefore, entitled to be acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
13. Arguments adduced by Ld. APP for State and Ld. Counsel for accused have been heard. The evidence and documents on record have been carefully perused.
14. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Suraj Rathore and Mukesh Kumar have been indicted for the offence u/s 12 of Delhi Public Gambling Act, the contents of which are State Vs. Suraj Rathore & Anr. Page No.6 / 16 reproduced as follows:
"12.Gaming and setting birds and animals to fight in public streets.-A police officer may apprehend without warrant any person found gaming in any public street, place or thoroughfare situated within the Union Territory of Delhi, or any person setting any birds or animals to fight in any public street, place or thoroughfare situated within the said Union Territory, or any person there present aiding and abetting such public fighting of birds and animals, such person when apprehended shall be brought without delay before a Magistrate and shall be liable to imprisonment for a term which may extend to three months and shall also be liable to a fine which may extend to one thousand rupees, and such police officer may seize all instruments of gaming found in such public street, place or thoroughfare on the person of those whom he shall so arrest, and the Magistrate may on conviction of the offender order such instruments to be forthwith destroyed."
Further, section 34 IPC lays down the liability for criminal acts of several persons, done in furtherance of common intention of all. This section imputes liability on every such person, for a particular criminal act in the same manner, as if it were done by him alone.
15. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. However, as discussed hereinafter, careful scrutiny of the evidence placed on record brings to light the fact that the case of State Vs. Suraj Rathore & Anr. Page No.7 / 16 the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible.
i). Doubtful Seizure Memo:
16. A careful reading of the testimonies of PW2, PW3 and PW4 (inadvertently mentioned as PW1, PW2 and PW3) reflects that after the accused persons in the present case were apprehended and case property was recovered from them, HC Diwan Singh prepared the tehrir and handed over the same to Ct. Amarjeet for registration of FIR. Further, after the FIR was registered, IO HC Rajbir Singh returned to the spot along with Ct. Amarjeet and thereafter seized the case property vide seizure memo Ex. PW1/C and sealed it with the seal of 'RSY'. The narration of such a chronology of events leads to the irresistible conclusion that the seizure memo of property was prepared at the spot, after the registration of FIR in the case. However, the aforesaid testimony of the said witnesses is in complete contrast with the tehrir Ex. PW1/A as per which HC Diwan himself had seized the case property in the present matter and sealed it with the seal of RSY, after which he had handed over the tehrir to Ct. Amarjeet for registration of FIR in the case and for marking further investigation in the case to HC Rajbir Singh. Not only this, even seizure memo Ex. PW1/C has been apparently prepared by HC Diwan Singh himself and not by HC Rajbir Singh, as stated by the said witnesses during trial. No explanation from the prosecution is forthcoming on behalf of prosecution on this aspect. Further, if it is assumed for a moment that seizure memo Ex. PW1/C was prepared by the HC Diwan Singh, then, ordinarily, the FIR number should not find mention in the seizure State Vs. Suraj Rathore & Anr. Page No.8 / 16 memo, which document came into existence before registration of the FIR. However, quite surprisingly, perusal of seizure memo reflects the mentioning of the full particulars of the FIR thereupon, which fact has remained unexplained on behalf of the prosecution. It is not even the case that the same, on the face of it, appears to have been written in separate ink or at some left over space. Rather, it appears to have been recorded in same continuity, handwriting and ink as rest of the contents of these documents. This glaring contradiction in the testimony of the said witnesses and the documentary evidence placed on record raises grave suspicion with regard to genuineness of the seizure memo in the case and casts a fatal doubt upon the case of prosecution.
17. At this stage, reference may be made to the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as follows:
"....Learned counsel for the state concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex.PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa Ex.PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW 11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a Ct. . In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These State Vs. Suraj Rathore & Anr. Page No.9 / 16 are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
18. Similarly, in paragraph 4 of Mohd. Hashim vs State, 82 (1999) DLT 375, the Hon'ble High Court of Delhi observed:
"...Surprisingly, the secret information (Ex. P.W. 7/A) received by the Sub-Inspector Narender Kumar Tyagi (P.W. 7), the notice under S. 50 of the Act (Ex. P.W. 5/A) alleged to have been served on the appellant, the seizure memo (Ex. P.W. 1/A) and the report submitted under S. 57 of the Act (Ex. P.W. 7/D) bear the number of the FIR (Ex. P.W. 4/B). The number of the FIR (Ex. P.W. 4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex. P.W. 4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. P.W. 4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
ii). The non-joining of any independent / public witness.
19. It is evident from the record that no public person witness to the recovery of case property has been either cited in the list of prosecution witnesses or has been examined by the prosecution. It has been admitted by the prosecution witnesses that that there were public persons present at the spot. Further, PW2, PW3 and PW4 stated during their cross examination that they had even asked a few public persons to join the investigation, however, all of them refused to join the investigation and left the spot. Admittedly, no notice was served State Vs. Suraj Rathore & Anr. Page No.10 / 16 to such persons upon their refusal to join investigation in the case. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
".........18. It is repeatedly laid down by this Court 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 evidence 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 shopkeepers 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 perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
20. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"........The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the State Vs. Suraj Rathore & Anr. Page No.11 / 16 independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non- joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
21. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence. Under Section 100(8) Cr.P.C, refusal to be a witness can render such non willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, non-compliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity, makes the prosecution version highly doubtful.
22. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in State Vs. Suraj Rathore & Anr. Page No.12 / 16 Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above, and hereinafter.
iii). Possibility of misuse of seal of the investigating officer.
23. As per record, after sealing the case property with the seal of "RSY", the seal was handed over to Ct. Amarjeet. However, Ct. Amarjeet was a recovery witness and was subsequently, a part of the investigation in the present case. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. More importantly, it is imperative to note that no handing over memo of seal was also prepared by the IO in this regard. In addition to this, there is no taking over memo on record to show as to when the seal was taken back from Ct. Amarjeet or if it remained with him forever. In such a factual backdrop, since the seal was given to Ct. Amarjeet, the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
State Vs. Suraj Rathore & Anr. Page No.13 / 1624. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"....The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating Officer-Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."
25. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out...."
Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
iv). Other infirmities in the prosecution case.
State Vs. Suraj Rathore & Anr. Page No.14 / 1626. Furthermore, there is also discrepancy with respect to the manner in which the accused persons were caught by the police officials at the spot. While, a cursory reading of tehrir Ex. PW1/A highlights that when the accused persons had attempted to flee away from the spot, HC Diwan Singh, along with associate police officials, ran behind the accused persons and had then nabbed them. However, contrary to this version, during their cross-examination, PW2 HC Diwan Singh and PW3 Ct. Amarjeet deposed that they were able to catch hold of the accused persons at the spot as the accused persons were sitting there and the rest of the persons were standing. This significant incoherency in the version of the said PW, shrouds doubt over the prosecution story regarding the incident in question on the alleged day.
27. Thus, in light of of the aforesaid discussion, the recovery of the alleged case property from the possession of the accused persons becomes highly doubtful. There are material links missing in the prosecution story, and the chances of tampering of case property or false implication of the accused persons by the police cannot be ruled out.
28. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused persons beyond reasonable doubt has not been discharged by the prosecution. Thus, this court is of the State Vs. Suraj Rathore & Anr. Page No.15 / 16 opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused persons for offence u/s 12 of Delhi Public Gambling Act, read with section 34 of IPC, beyond reasonable doubt, thus, entitling the accused persons to benefit of doubt and acquittal.
29. Accordingly, this court hereby accords the benefit of doubt to the accused persons for the offence u/s 12 of Delhi Public Gambling Act, read with section 34 of IPC, and holds the accused persons not guilty of commission of the said offence. Accused persons Suraj Rathore and Mukesh Kumar are thus, acquitted of the offence u/s 12 of Delhi Public Gambling Act read with section 34 of IPC.
30. Copy of this judgment be given free of cost to the accused persons.
Announced in the open court
on 01.02.2023, in presence of Digitally
signed by
both accused and Ld. Counsel APOORVA
APOORVA
RANA
for accused. RANA Date:
2023.02.01
15:11:17
+0530
(APOORVA RANA)
M.M-10/Dwarka Courts/01.02.2023
It is certified that this judgment contains 16 pages, all signed by the undersigned. Digitally signed by APOORVA APOORVA RANA RANA Date:
2023.02.01 15:11:28 +0530 (APOORVA RANA) M.M-10/Dwarka Courts/01.02.2023 State Vs. Suraj Rathore & Anr. Page No.16 / 16