Delhi District Court
State vs Sunil on 20 March, 2024
IN THE COURT OF SH. NIDHISH KUMAR MEENA,
M.M-10, DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-026904-2020
Cr. Case 6660/2020
STATE Vs. SUNIL & ANR.
FIR No. 336/2020
P.S Kapashera
20.03.2024
JUDGMENT
Case No. : 6660/2020 Date of commission of offence : 19.06.2020
Date of institution of the case : 05.10.2020
Name of the complainant : Hari Ram
Name of accused and address : 1. Sunil
S/o Sh. Rajbir
R/o VPO Badli,
Pana Chaudhran,
Jhajjar, Haryana.
2. Indal Kumar
S/o Sh. Samnta
R/o H. No. 59,
Village Kanhai,
Sector-44, Gurgaon,
Haryana.
Offence complained of or proved : U/s 12 Delhi Public Gambling Act, 1955 Plea of the accused : Pleaded not guilty Final order : Acquitted State Vs. Sunil & Anr. Page No.1 / 15 Date reserved for judgment : 16.03.2024.
Date of judgment : 20.03.2024 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused persons Sunil and Indal Kumar, 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. 336/2020.
2. It is the case of the prosecution that on 16.07.2020, at about 8:40 p.m, at Tempo Stand, Beriwala Bagh, Bijwasan, New Delhi, the accused persons were found gambling, and from their possession, playing cards (gaming), one pen, one yellow colour diary and total cash of Rs. 980/- 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 Sunil. After hearing the arguments, notice u/s 12 of Delhi Public Gambling Act, was served to accused Sunil, to which he pleaded not guilty and claimed trial. At this juncture, it is pertinent to note that vide order dated 24.05.2023 accused Indal Kumar is declared PO in the present case. Consequently, the matter proceeded against the accused State Vs. Sunil & Anr. Page No.2 / 15 Sunil only and thus, this judgment shall render findings with respect to the offence only, alleged against the accused Sunil.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined three witnesses in total.
5. PW-1 was HC Digvijay, who deposed that on 16.07.2020, the investigation of this case was assigned to him for further investigation. Thereafter, he went to the spot where he met IO HC Hari Ram and Ct. Laxmi Narain alongwith two persons whose name was later on revealed as Indal Kumar and Sunil. IO HC Hari Ram handed over the custody of accused persons and the case property to him. Thereafter, the said PW further deposed with respect to the investigation carried out by him in the present case after he reached at the spot. Through him, arrest memo of accused persons was exhibited as Ex. PW1/A and Ex. PW1/B.
6. PW-2 was HC Hari Ram, who deposed on 16.07.2020, he was on patrolling duty alongwith Ct. Laxmi Narayan. At about 8:30 p.m, when they reached at Beriwala Bagh, Tempo Stand, which was in Kapashera, they saw some gathering near Tempo Stand. They went there and found that some gambling activity (Satta) is going on. After seeing them, they all fled away. However, they managed to caught two persons whose names were revealed as Sunil and Indal. From their possession, Rs. 980/-, one deck of card, one blue pen and one State Vs. Sunil & Anr. Page No.3 / 15 diary were also recovered. They were inquired to which they could not replied satisfactory. Thereafter, the said PW further deposed with respect to the investigation firstly carried out by him and then the IO in the present case after he reached at the spot. Through him, seizure memo of case property was exhibited as Ex. PW2/A, tehrir was exhibited as Ex. PW2/B, site plan Ex.
PW2/C and case property was exhibited as Ex. P1 (colly).
7. PW-3 was HC Laxmi Narayan, who deposed on similar lines as PW-2 and further deposed with respect to the investigation out by the IO in the present case after he reached at the spot.
8. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
9. Statement of the accused person Sunil u/s 281 Cr.P.C read with Section 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidence were put to him. The accused person controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. Accused person further opted to not lead evidence in his defence.
FINAL ARGUMENTS:
10. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their State Vs. Sunil & Anr. Page No.4 / 15 testimonies 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 has been proved beyond doubt.
11. Per contra, Ld. Counsel for accused person has stated that there is no legally sustainable evidence against the accused person and that the accused person has been falsely implicated by the police officials and the recovery of case property has been planted upon him. 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:
12. 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.
13. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Sunil has been indicted for the offence u/s 12 of Delhi Public Gambling Act, the contents of which are reproduced as follows:
"12.Gaming and setting birds and animals to fight in public streets.-A police officer may apprehend without warrant any State Vs. Sunil & Anr. Page No.5 / 15 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."
14. 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 the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible.
i). Doubtful Seizure Memo:
15. A careful reading of the testimonies of PW1 and PW2 reflects that HC Hari Ram had seized the case property vide seizure memo Ex. PW2/A at the spot and had thereafter prepared the tehrir Ex. PW 2/B and handed over the same to Ct. Laxmi, State Vs. Sunil & Anr. Page No.6 / 15 for registration of FIR. The narration of such a chronology of events leads to the irresistible conclusion that the seizure memo of property was prepared at the spot, prior to the Tehrir being sent to the police station for registration of the FIR and that the FIR was, therefore, admittedly registered after the preparation of the said document. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by Ct. Laxmi. Thus, ordinarily, the FIR number should not find mention in the seizure 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. No explanation from the prosecution is forthcoming as to how the FIR number surfaced on a document which was prepared prior to the registration of the FIR. This fact casts a fatal doubt upon the case of prosecution.
16. 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 State Vs. Sunil & Anr. Page No.7 / 15 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 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."
17. 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."State Vs. Sunil & Anr. Page No.8 / 15
18. The aforesaid rulings of the Hon'ble High Court of Delhi squarely apply to the facts in the present case as well, which leads to only one of the either inference, that is, either the FIR was registered prior to the alleged recovery of the case property, or that said document was prepared later in point of time. In either of the scenarios, a dent is created in the version of the prosecution, the benefit of which must accrue to the accused.
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, prosecution witnesses have 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. 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 State Vs. Sunil & Anr. Page No.9 / 15 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 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."State Vs. Sunil & Anr. Page No.10 / 15
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 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. Perusal of record reveals that after sealing the case property with the seal of "HR", the seal was not handed over to State Vs. Sunil & Anr. Page No.11 / 15 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 neither any handing over memo of seal was prepared by the IO nor any taking over memo of seal has been placed on record. In such a factual backdrop, since 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.
24. 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 State Vs. Sunil & Anr. Page No.12 / 15 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, the 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.
26. Furthermore, there are several discrepancies with respect to the testimonies of witnesses. PW2 deposed that PW1 & PW3 came together at the spot, however PW1 stated that when he reached at the spot, he found PW2 & PW3 present at the spot alongwith accused persons, meaning thereby that PW3 was already present at the spot. Further, there is also a contradiction in their statements in respect to the vehicle used by them for their arrival & departure. PW2 stated that PW1 reached at the spot on his motorcycle however PW3 stated that PW1 reached at the spot by his car. Apart from that, PW2 stated that he left the spot on foot, whereas PW3 deposed that, PW1 & PW2 left the spot in the car of PW1. Another inconsistency is in respect with the manner in which case property was carried to Police Station. PW2 deposed that he doesn't know how the case property & the accused were taken to the PS. However, PW3 deposed that case State Vs. Sunil & Anr. Page No.13 / 15 property & accused were taken to the PS in the car of PW1 & PW2 was also accompanying them.
28. Thus, in light of the aforesaid discussion, the recovery of the alleged case property from the possession of the accused person 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 person by the police cannot be ruled out.
29. 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 person beyond reasonable doubt has not been discharged by the prosecution. Thus, this court is of the 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 person for offence u/s 12 of Delhi Public Gambling Act, beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
30. Accordingly, this court hereby accords the benefit of doubt to the accused person for the offence u/s 12 of Delhi Public Gambling Act and holds the accused not guilty of commission of the said offence. Accused Sunil is thus, acquitted of the State Vs. Sunil & Anr. Page No.14 / 15 offence u/s 12 of Delhi Public Gambling Act.
31. Copy of this judgment be given free of cost to the accused persons.
Announced in the open court on 20.03.2024, in presence of both accused and Ld. Counsel NIDHISH Digitally by NIDHISH signed for accused. KUMAR KUMAR MEENA Date: 2024.03.20 MEENA 14:12:35 +0530 (NIDHISH KUMAR MEENA) M.M-10/Dwarka Courts/20.03.2024 It is certified that this judgment contains 15 pages, all signed by the undersigned. NIDHISH Digitally signed by NIDHISH KUMAR KUMAR MEENA Date: 2024.03.20 MEENA 14:12:42 +0530 (NIDHISH KUMAR MEENA) M.M-10/Dwarka Courts/20.03.2024 State Vs. Sunil & Anr. Page No.15 / 15