Delhi District Court
State vs . Raju Sahani & Anr. on 3 April, 2023
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-013693-2021
Cr. Case 2903/2021
STATE Vs. RAJU SAHANI & ANR.
FIR NO. 451/2020
P.S Kapashera
03.04.2023
JUDGMENT
Case No. : 2903/2021 Date of commission of offence : 05.10.2020
Date of institution of the case : 03.03.2021 Name of the complainant : HC Gulab Singh Name of accused and address : 1. Raju Sahani S/o Bhukhlu Sahni R/o Jhuggi no. 442, Sonia Gandhi Camp, Samalkha, Kapashera, New Delhi.
2. Om Parkash S/o Sh. Chumai Lal R/o Jhuggi no. 377, Sonia Gandhi Camp, Samalkha, Kapashera, New Delhi.
Offence complained of or proved : U/s 12 Delhi Public Gambling Act, 1955 Plea of the accused : Pleaded not guilty State Vs. Raju Sahani & Anr. Page No.1 / 17 Final order : Accused No. 1 -
Acquitted Accused No. 2 -
Acquitted Date when reserved for judgment : 06.03.2023.
Date of judgment : 03.04.2023 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused persons Raju Sahani and Om Parkash (hereinafter referred to as accused no.1 and accused no2, 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. 451/2020.
2. It is the case of the prosecution that on 05.10.2020, at about 07.15 p.m, at Kota Cabin near Sochalya, Sonia Gandhi Camp, Samalkha, New Delhi, the accused persons were found gambling, and from their possession, one green and blue coloured playing cards deck having label "Foji", one pen, one green coloured diary and a total cash of Rs. 2030/- 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.State Vs. Raju Sahani & Anr. Page No.2 / 17
3. Complete set of charge sheet and other documents were supplied to the accused persons. Thereafter, notice u/s 12 of Delhi Public Gambling Act 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. 451/2020, alongwith certificate u/s 65B of Indian Evidence Act, Ex. A1 (colly) and DD No. 65A dated 05.10.2020 Ex. A2.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined four witnesses in total.
5. PW-1 was HC Deepak, who deposed that on 05.10.2020, he alongwith HC Gulab Singh were present at Sonia Gandhi Camp, Samalkha, New Delhi during beat patrolling duty.
When they reached at Sonia Gandhi Camp, pota cabin wala plot, near Sochalya, they saw that a number of people had gathered inside the cabin plot. That, the police officials swiftly saw that some persons were playing cards and were gambling. Upon seeing them, they tried to run away. That, the said PW, with the help of HC Gulab Singh apprehended two persons after running behind them and the remaining persons ran away from the spot. The persons who were apprehended disclosed their names as Raju Sahni and Om Parkash. Thereafter, the said PW deposed with respect to the investigation carried out in the present matter by IO. Through him, seizure memo was exhibited as Ex. PW1/A, disclosure statements of accused persons were exhibited as Ex.
State Vs. Raju Sahani & Anr. Page No.3 / 17PW1/B and Ex. PW1/C, arrest memos of accused persons were exhibited as Ex. PW1/D and Ex. PW1/E and recovered case property was exhibited as Ex. P1(colly).
6. PW-2 was HC Gulab Singh, i.e., the complainant and 1st IO in the case, who deposed on similar lines as PW1 and also deposed with respect to the investigation carried out in the present case. Through him, site plan was exhibited as Ex. PW2/A.
7. PW-3 was HC Anand, i.e., the subsequent IO in the present case who deposed that the investigation of this case was assigned to him after registration of FIR and further deposed with respect to the investigation carried out by him after he reached the spot. Through him, zamanatnama / jati muchalka of accused persons were exhibited as Ex. PW3/A and Ex. PW3/B.
8. PW-3 was Ct. Lokesh, who had brought register no. 19 to Court during trial. As per the entry no. 2517 dated 05.10.2020, HC Gulab had deposited a sealed pullanda i.e., a transparent plastic container sealed with the seals of GSY which was seized by him through seizure memo in the present case. Through him, copy of entry no. 2517 was exhibited as Ex. PW4/A (OSR).
9. On account of admission of accused u/s 294 Cr.P.C, PW at serial no. 2 HC Narender 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 State Vs. Raju Sahani & Anr. Page No.4 / 17 was dispensed with.
10. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C. AND DEFENCE EVIDENCE:
11. 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 inter alia stated that they has been falsely implicated in the case. Accused persons further opted to lead evidence in their defence. During defence evidence, accused persons examined themselves as witnesses.
12. DW1 was accused Om Parkash, who deposed that he had been residing at the abovesaid address since more than 30 yeas. That, on 05.10.2020, he alongwith his neighbour namely Raju Sahani went for purchasing vegetables in a vegetable market at Motor Market, Sonia Gandhi Camp, Samalkha. When they were purchasing the vegetables, two persons in civil uniform apprehended both of them and asked about their identity cards. That, he replied that his identity card was at home but both the said persons ignored his reply and falsely implicated him in the present case. The said DW deposed that he had been falsely implicated in the present case.
State Vs. Raju Sahani & Anr. Page No.5 / 1713. DW2 was accused Raju Sahani, who deposed on similar lines as DW1.
14. No other DW was left to be examined, hence, D.E was closed.
FINAL ARGUMENTS:
15. 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 has been proved beyond doubt.
16. 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:
State Vs. Raju Sahani & Anr. Page No.6 / 1717. Arguments adduced by Ld. APP for State and Ld. Counsel for accused persons have been heard. The evidence and documents on record have been carefully perused.
18. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused persons Raju Sahani and Om Parkash have 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 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."
19. 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 State Vs. Raju Sahani & Anr. Page No.7 / 17 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:
20. A careful reading of the testimonies of PW1 and PW2 reflects that HC Gulab Singh had seized the case property vide seizure memo Ex. PW1/A at the spot and had thereafter prepared the tehrir and handed over the same to Ct. Deepak 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. Deepak. 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 State Vs. Raju Sahani & Anr. Page No.8 / 17 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.
21. 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 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."
22. 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) State Vs. Raju Sahani & Anr. Page No.9 / 17 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."
23. 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.
24. 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. Apparently, IO had even asked a few public persons to join the investigation, however, all of them refused to join the investigation and left the spot. No notice was also admittedly served to these public witnesses 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 State Vs. Raju Sahani & Anr. Page No.10 / 17 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."
25. 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 State Vs. Raju Sahani & Anr. Page No.11 / 17 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."
26. 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.
27. 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 State Vs. Raju Sahani & Anr. Page No.12 / 17 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.
28. As per the version of the prosecution witnesses, after sealing the case property with the seal of "GSY", the seal was handed over to Ct. Deepak. However, Ct. Deepak 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. Deepak or if it remained with him forever. In such a factual backdrop, since the seal was given to Ct. Deepak, 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.
29. 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:
State Vs. Raju Sahani & Anr. Page No.13 / 17"....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."
30. 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.
31. Furthermore, apparently, after the accused persons were apprehended in the present matter by HC Gulab and case State Vs. Raju Sahani & Anr. Page No.14 / 17 property was recovered from them, no information was relayed in this regard by HC Gulab Singh to any higher police official or at the police station. It was only after the registration of FIR that the investigation in the present case was subsequently marked to HC Anand. Such non-disclosure of information by the complainant police official raises doubts as regards the genuineness of the actual commission of the offence by the accused persons, as alleged and their subsequent apprehension in the circumstances as delineated. Furthermore, the accused persons were allegedly found gambling at and were apprehended from Porta Cabin Walla plot, Near Shauchalaya. However perusal of site plan Ex. PW2/A bears no mention of either the aforesaid plot or the Shauchalaya, thus raising doubts about the actual place of commission of offence.
32. Furthermore, though DD entry as regards the departure of HC Gulab Singh and Ct. Deepak for patrolling duty has been placed on record, however, no DD entry with respect to their arrival at the PS after conclusion of investigation in the case, has been placed on record. Moreover, even the DD entry as regards the departure of HC Anand from PS to the spot after subsequent investigation in the case was marked to him, has not been placed on record. No explanation in this regard is also forthcoming on behalf of the said police officials. At this juncture, it would be apposite to reproduce chapter 22 Rule 49 of of Punjab Police Rules, 1934, which is as follows:
"22.49 Matters to be entered in Register No.II- The following matters shall, amongst others, be entered:-State Vs. Raju Sahani & Anr. Page No.15 / 17
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
(ci) Note: The term police station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
The aforesaid lapse of not making required DD entries at the PS, on part of the said police officials renders the factum of their departure to the spot and arrival to PS questionable and suspicious and thereby, blemishes the sanctity of their version in this regard. Such material discrepancies raise doubt regarding the proceedings having been conducted at the spot and also give rise to the suspicion that the same were done in a mechanical manner in the PS itself and that the accused persons may have been falsely implicated in the present case.
33. 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 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 State Vs. Raju Sahani & Anr. Page No.16 / 17 Act beyond reasonable doubt, thus, entitling the accused persons to benefit of doubt and acquittal.
34. Accordingly, this Court hereby accords the benefit of doubt to the accused persons for the offence u/s 12 of Delhi Public Gambling Act and holds the accused persons not guilty of commission of the said offence. Accused persons Raju Sahani and Om Parkash are thus, acquitted of the offence u/s 12 of Delhi Public Gambling Act.
35. Copy of this judgment be given free of cost to the accused persons.
Announced in the open court
on 03.04.2023, in presence of Digitally signed
by APOORVA
both accused and Ld. Counsel APOORVA RANA
Date:
RANA
for accused. 2023.04.03
15:31:46
+0530
(APOORVA RANA)
M.M-10/Dwarka Courts/03.04.2023
It is certified that this judgment contains 17 pages, all signed by the undersigned. Digitally signed by APOORVA RANA APOORVA Date:
RANA 2023.04.03
15:31:53
+0530
(APOORVA RANA)
M.M-10/Dwarka Courts/03.04.2023
State Vs. Raju Sahani & Anr. Page No.17 / 17