Delhi District Court
3. Title Of The Case : State vs Anil Talwar & Anr. on 30 November, 2012
IN THE COURT OF SHRI MANISH YADUVANSHI: ACMM0I
(CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 0023/3/95
2. Unique I.D. No. : 02401R0010541995
3. Title of the Case : State Vs Anil Talwar & Anr.
FIR No. 502/1995
PS : Karol Bagh
U/s : 3 of Delhi Public Gambling Act
4. Date of Institution : 27.11.1995
5. Date of reserving judgment : 29.11.2012
6. Date of pronouncement : 30.11.2012
J U D G M E N T :
a) The Sl. No. of the case : 0023/3/95
b) The date of commission : 18.11.1995
c) The name of complainant : SI (Retd.) Hari Singh,
then posted at Crime Branch, PHQ, Delhi
R/o Village Bhaivelpur, Tehsil Ballabgarh,
Distt. Faridabad, Haryana
d) The name of accused : 1) Kamal Kumar Suri (Now deceased)
S/o Sh. Durga Das Suri
R/o 7A43, WEA, Chana Market,
Karol Bagh, Delhi
2) Anil Talwar S/o Sh. Ashok Talwar
FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 1 of 23
R/o B3/3228, Vasant Kunj, Delhi
3) Arjun Arora S/o Lt. Sh. Kamal Nain
R/o 69 SFS, DDA Flats, Punjabi Bagh
Apartment, New Rohtak Road, Delhi
e) The offence complained of : U/s : 3/4 9/55 of Delhi Public Gambling
Act
f) The offence charged with : U/s : 3 of Delhi Public Gambling Act
g) The plea of the accused : Pleaded not guilty
h) The final order
: Acquitted
i) The date of such order : 30.11.2012
j) Brief facts of the decision of the case :
1. As per the prosecution, ACP Ranvir Singh (PW5) had received secret information at his office at PHQ, Delhi through secret informer that Kamal Suri, now deceased, is indulging into illegal betting on a cricket match between teams of New Zealand and India from his house No. 7A/43, WEA, Chana Market, Karol Bagh, Delhi. On verification, the information was found correct. A search warrant was obtained from the then DCP (Crime & Railways) Sh. Qamar Ahmad U/s 5 of Delhi Public Gambling Act (hereinafter called 'the Act'). At about 02.40 PM, SI Hari Singh (PW3), ASI Devender Singh (now SI/PW4), HC Ashok Kumar (now ASI/PW1), HC Madan Lal (not examined), Ct. Sanjay Kumar (not examined), Ct. Ranjeet Kumar (not examined), Insp. Jai Kishan (not examined) and ACP Ranvir Singh (PW5) formed a raiding party and left the office of Crime Branch in an official vehicle driven by HC Raj Kumar (not examined) and a FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 2 of 23 private vehicle and reached Karol Bagh at about 03.30 PM. They requested 4/5 persons to join the raiding party, however, none agreed. ASI/PW4 Devender Singh was made a decoy customer and was handed over four currency notes of Rs. 500/ denomination each which were duly initialed by SI/PW3 Hari Singh. He was instructed to go to the house of the accused and place a bet of Rs. 2000/ on the win of cricket team of New Zealand. HC Ashok Kumar (PW1) was made a shadow witness with instructions to accompany the decoy customer/PW4 and was also instructed about a signal which he had to give to the raiding party upon conclusion of the preagreed bet. At 03.40 PM, PW1 & 4 left for the house of the accused. The members of the remaining raiding party were waiting for the pre agreed signal. At 03.50 PM, both the police officials came back. PW4/ASI Devender Singh stated that in the house, one person namely Kamal Suri was found sitting in the front of a table and across him, two other persons were sitting. Three/four telephones were found on the desk. Cricket match was being relayed on a television make Sony. Accused Kamal Suri had revealed that upon placing of bet of Rs. 1 on India winning the match, a sum of Rs. 1.35 would be paid and upon betting Rs.1 on New Zealand, a sum of Rs. 2.50 shall be repaid. The bet of Rs. 2000/ was placed on New Zealand for a return of Rs. 5000/ upon New Zealand winning the game and forfeiture of the above amount in case New Zealand lost. During all this while, one person from amongst two who were sitting across the accused Kamal Suri was busy in recording instructions over the phone on a note book. Accused Kamal Suri instructed the police persons to come after the match concluded. He prepared a satta slip which PW4/ASI Devender Singh produced FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 3 of 23 before SI/PW3 Hari Singh. At about 04.20 PM, PW1 and PW4 again went inside the house of the accused. The prearranged signal was received. The remaining members raided the premises and apprehended all the three accused persons. Four telephones were found and seized. The accused Arjun Arora was was having a note book in front of him having entries of the betting made on the cricket match. Similar note book was also found in front of accused Kamal Suri which also incorporated the bet made by the decoy customer. The decoy customer had stated that on their second visit, all three accused persons told him that since New Zealand has lost, therefore, bet amount of Rs. 2000/ stood forfeited. Accused Anil Talwar advised him to take his chance in the next match. Accused Kamal Suri was having a green colour cloth in his hand. On checking, it was found to be containing Rs. 2.47 lacs inclusive of four marked currency notes of Rs. 500/. The satta parchi, currency notes, ballpoint pen etc were sealed alongwith note books and the cash amount. The television was also seized. The offences punishable U/s 3 & 4 of the Act were found to have been committed. Rukka (Ex.PW3/A) was prepared and sent to the police station for registration of FIR through HC Ashok Kumar (PW1) at 06.00 PM.
2. An FIR (Ex.PW1/C) was accordingly got registered through Duty Officer/HC Om Singh (now ASI/PW2). Further investigation was assigned to SI Hari Singh (PW3). A site plan of the incident was prepared. During the proceedings, memo of handing over currency notes of Rs. 2000/ was prepared by SI Hari Singh and witnessed by HC Ashok Kumar which is Ex.PW1/A. At the FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 4 of 23 place of incident, seizure memo of the gambling equipments/stationery was prepared by SI Hari Singh which was duly witnessed by ASI Devender Singh and the same is Ex.PW1/B. The seizure memo of visiting cards of hotel 'The Pearl', Mussorie recovered from the accused Kamal Suri was prepared which is (Ex.PW1/E). The visiting card itself is Mark PW3/B. Personal search memo of accused Anil Talwar, Arjun Arora and Kamal Suri (Ex.PW1/F1 to F3) were also prepared. The accused persons were duly arrested upon execution of arrest memos. After conclusion of remaining investigation, charge sheet was filed in the court.
3. Notice for commission of offence U/s 3 of the Act was explained to the accused persons in accordance with section 251 Cr.P.C on 19.09.1998. All the accused persons pleaded not guilty and claimed trial.
4. During the course of proceedings, accused Kamal Suri had died. Proceedings against him stood abated on 01.11.2007. The prosecution had furnished a list of only five witnesses including MHC (M). ASI Ashok was examined as PW1 on 07.09.2002. This witness did not appear thereafter for his cross examination. His testimony can not be read in evidence. ASI Om Singh is the Duty Officer who was examined as PW2. The material witnesses in this case are PW3/IO Hari Singh and PW4 Devender Singh as decoy customer. Sh. Ranvir Singh, the then DCP (Social Defence Wing) was not named as witness of the prosecution. However, an order was passed by Ld. Predecessor Court on FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 5 of 23 12.01.2011 pursuant to which the said ACP was examined as PW5. PW2 to Pw5 were duly cross examined by the defence.
5. In his statement U/s 313 Cr.P.C, the accused Anil Talwar denied the incriminating evidence against him submitting that deceased Kamal Suri had called him for lunch. He has a hotel at Mussorie (Uttrakhand). Accused Kamal Suri also had a hotel at the same place. According to him, he was waiting for the lunch to be served when certain police officials came. According to him, accused Arjun Arora had also come to meet Kamal Suri. The accused opted to lead defence evidence. Coaccused Arjun Arora also denied all the incriminating evidence against him submitting that he works at the Karol Bagh Branch of Indian Bank where deceased Kamal Suri was having a bank account. He was on friendly terms with accused Kamal Suri and had gone to his premises to have lunch with him on his asking. The accused Kamal Suri had a hotel by the name of 'The Pearl' at Mussorie and he was running a booking office from his premises. Accused Anil Talwar had also come to that place after which certain police officials had arrived. He also opted to lead defence evidence.
6. In defence, the accused persons examined one Sh. Naveen Kapoor as DW1. He is an employee at hotel 'The Pearl' at Mussorie since 1993. They have a booking office at the said hotel at Karol Bagh. According to him, cash amounts were accepted as advance booking for the rooms in the said hotel. Some police officials had approached him for seeking obligation of booking room in their hotel FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 6 of 23 on a big discount or on free lodging basis. The witness had requested the said officials that he had no authority to do so. He produced lodging license of hotel 'The Pearl' issued under the Sarai Registration Act which is Ex.DW1/A (OSR). The proprietor/partners of the hotel were Kamal Kumar Suri and Smt. Renu Suri R/o 7A/43, WEA, Karol Bagh, Delhi. The witness is shown as the Manager of the hotel. The certificate was issued on 10.05.1995. The witness also produced certified copies of the statement of account of hotel 'The Pearl' which is Ex.DW1/B. He deposed that in November 1995, he was present at Delhi booking office of the hotel. During that period, several police officials used to visit the said office seeking complementary stay/entertainment in their hotel. On certain occasions, their requests were granted, however, as they become frequent, the witness on instructions of accused Kamal Suri refused to entertain such requests. The police officials become annoyed. On the date of incident, the witness was in Delhi and on some field work. According to him, his employer and employer's close friends were falsely implicated in this case. The cash available at their office was also illegally seized. He also produced copy of his driving license as Ex.DW1/C (OSR). He was cross examined by Ld. APP for State. No other DW was examined by the defence.
7. According to Ld. Defence Counsel, there are many contradictions between the testimonies of PW3, 4 & 5. All the members of the raiding party were never cited by the prosecution as its witnesses. It is submitted that despite availability of public persons, none were joined. On the contrary, Ld. APP for FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 7 of 23 State submits that there is no occasion to disbelieve the testimonies of recovery witnesses merely because they are police officials. It is in the rukka (Ex.PW3/A) that the raiding party had requested 4/5 public persons to join it, however, none had shown inclination and left without disclosing their names and addresses. The raiding party had left the Crime Branch Office at 02.40 PM and had reached near the place of incident at 03.30 PM. The bet was placed at 03.40 PM. The match concluded somewhere prior to 04.20 PM which is the time when the decoy and shadow customer had revisited the premises in question. Thus, the police party had ample time to explain the purpose of raid to the public persons who were requested to join the raiding party. Likewise, they had ample time to atleast note the names and addresses of the persons who refused to become member of the raiding party. Further, they could have tried to include the nearby shopkeepers to become part of the raiding party. No such efforts were made. No notice was served upon the persons who refused to become member of the raiding party.
In the statement of PW3, he submits that although he requested 4/5 public persons but everybody refused. In his cross examination, he admits that the spot of occurrence is located in a busy commercial locality. He had requested only passersby and not the occupant of the offices, shops/residence in the locality. He could not tell as to how many stories existed in the building on the first floor of which the office of the deceased Kamal Suri was situated.
PW4 submits that only 2/3 persons were asked to join the raiding party. In his cross examination, he admits that the place of incident was surrounded by residence/commercial complexes. He also could not recall about FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 8 of 23 the number of stories in the building concerned. He had not gone to any adjacent shops to request the shopowners to join the raiding party. He further admits that the names and addresses of 2/3 passersby were not noted by the IO and that no legal action was taken against them.
PW5 was the senior most member of the raiding party. He states that the IO requested some passersby to join the raiding party but non volunteered. In his cross examination, he stated that the IO never recorded his statement. He did not sign on the documents prepared by the IO. He admits that the place of occurrence was surrounded by residential houses/shops/commercial complexes and that they did not visit any government office, residential houses or any commercial establishments to request the occupants of the same to become member of the raiding party. He was unable to recall as to whether the request made by the IO to the passersby was audible to him or not. He admits that he himself did not make any such request to anyone. He could not recollect that the IO recorded the detailed particulars of the persons who refused to oblige him or that if any legal action was taken against them.
8. I have already pointed out that the raiding party was not short of time and they had a definite input about the person indulging into particular crime of illegal betting on a known cricket match which was still being played alongwith details of the addresses where the same was being done. The senior police official/PW5 was supervising the entire operation. Still, none including himself have been able to establish that they made sincere efforts to strengthen their case FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 9 of 23 in joining public witnesses.
9. Accordingly, there is no explanation on record as to why this omission was made. This casts doubt about sincere efforts made by the investigating officer to join independent witnesses. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
In case of "PREM SINGH VS. STATE" 1996 CRI. L. 3604 (DELHI) and in case of "PAWAN KUMAR VS. DLEHI ADMN" 1989 CRLJ 0127 DEL, it has been observed as under: "Kalam Singh has to admit that at the time of arrest and recovery of knife, there was a lot of rush of public at the bus stop near Subhash Bazar.
According to Jagbir Singh, he did not join any public witness in the case while according to Kalan Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7:30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 10 of 23 contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused".
10. In the case of "Hem Raj Vs State of Haryana" AIR 2005 SC 2010, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 11 of 23 case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non examination of independent witness by itself may not given rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
11. In the case of "D.V.Shanmugham Vs State of A.P" AIR 1997 SC 26583", it has been observed as under: "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation, the prosecution case has to be scrutinized with more care and caution".
FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 12 of 23
12. In the case of "Pawan Kumar Vs The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows: "Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar.
According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public persons was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 07.30 PM when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried t contact the public witnesses or that they refused to join the investigation. Here is a case where no efforts was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 13 of 23 the independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused".
13. In the case of "Massa Singh Vs State of Punjab" 2000 (2) CC Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under: "The recovery has been effected from a public place. The investigating officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 14 of 23
14. In the case of "Chanan Singh Vs State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the party of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
15. In the cases of "Gurbel Singh Vs State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
16. In the case of "Sahib Singh Vs State of Punjab" AIR 1997 SC 2417, it has been held as under: "Having gone through the record, we find much substance in each of the above contentions. Before conducting a search, the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 15 of 23 In any of these eventualities, the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, if would affect the weight of evidence of the Police Officer, though not its admissibility."
17. At the same time, I am also reminded of the aspect that so far the arguments in respect of non joining of public witness is concerned, it is well settled law that 'the case of the prosecution cannot be thrown away merely on the ground that public witnesses have not been joined. Reliance is placed upon the judgment titled "Ambika Prasad & Anr Vs. State" reported in 2002 (2) Crimes 63 SC wherein it has been held 'Independent persons are reluctant to be a witness or to assist the investigation. In any case,if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses'.
18. Reliance is also placed upon judgment titled "Appa Bhai Vs. State of FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 16 of 23 Gujrat" reported in AIR 1988 SC 696 wherein it is observed, "These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are in sensitive when crime is committed in their presence and they withdraw both from the victim and vigilance'.
19. Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997(3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under: "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily has to go the accused".
20. In the instant case, there are number of contradictions which creats doubt in the entire incident and therefore the same calls for further corroboration to the testimonies of PW 3, 4 & 5. No such corroboration is available as none of the independent member of locality in terms of Section 100 (4) of Cr.P.C was ever joined by the raiding party. To begin with, rukka (Ex.PW3/A) does not state that the raiding party that had left the Crime Branch Office for the place of incident constituted of the secret informer also. Further, it also does not reflect that it was FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 17 of 23 the secret informer who had pointed out and specified the premises No.7 A/43/WEA, Karol Bargh, Delhi to the raiding party. PW3 does not state that the secret informer traveled with the police party from their office to the place of incident. Similar is the testimony of PW4. However, quite surprisingly, PW5 states that secret informer had traveled with him in a private car.
PW4 submits that the secret informer was not with them, he had seen him. Thus, if the informer did not accompany the police party to the place of incident, he could not have traveled with PW5 to the place of incident. PW3 is silent about the informer. However, as per PW4, informer was sitting with ACP and Inspector in the other vehicle.
As per PW5, he received secret information which was verified and the facts were informed to the DCP (Crime & Railways). SI Hari Singh was deployed to conduct the raid. The search warrant was obtained, however, the same is not proved on record. The police party left the Office of Crime Branch at 02.40 PM in two vehicles i.e., police Gypsy and the private car and reached near the place of incident at 03.30 PM. In this regard, PW3/IO obtained search warrant (MarkX) on instructions of the ACP. The police party proceeded in a government vehicle and private vehicle. In his examinationinchief, PW3 does not give the time when the police party left the Crime Branch Office and the time when they reached the place of incident. However, in his chief examination, he submits that near the place of incident, he requested 4/5 persons to join the raiding party. After their refusal, he handed over four currency notes of Rs. 500/ denomination each (Ex.P3 collectively) to PW4. He also prepared 'fardhawalgi' (Ex.PW1/A) and FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 18 of 23 appointed HC Ashok Kumar as shadow witness. He directed them to go to place their bet. It is further in his testimony that at 03.30 PM, both returned back and informed that they had placed the bet as directed. Thus, according to his testimony, by 03.30 PM, PW1 as well as PW4 had not only placed a bet but had also returned to the remaining raiding party. However, as per PW5 and the rukka, they reached near the place of incident at 03.30 PM only. This time difference is also found in the cross examination of IO/PW3. He states that the investigation of this case was started by him at 02.30 PM. He had left the office of Crime Branch at 03.00 PM as against 02.40 PM as stated by PW1 and in rukka and 02.30 PM as stated by PW4. In his cross examination, he states that they had reached at the spot at 03.30 PM and never met the secret informer at any point of time.
PW4 does not provide time when the police team reached near the place of incident. Accordingly, the time factor is quiet confusing.
As per PW5, secret information was shared by the DCP (Crime & Railways) who issued search warrant, the said DCP was not examined in this case. On the contrary, IO submits that the secret information was not reduced in writing. Further, the departure entry purportedly made by the IO before leaving the office of Crime Branch was never produced. Interestingly, IO submits that the name of all members of raiding party except ACP/PW5 were examined in the said departure entry. PW4 submits that the IO made the departure entry in his presence. Regarding departure entry, PW5 has maintained silence, however, in his cross examination, he admitted that he did not remember if any DD entry was made regarding their departure in the present case. As per PW5, he is not the FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 19 of 23 signatory to any of the documents prepared during investigation and was not cited as witness to the prosecution. The production of DD entry was essential. The same has not been done.
PW3 submits in his cross examination that they had gone to the spot by official vehicle which fact is contrary to the fact recorded in rukka (Ex.PW3/A) and the facts stated by PW4 and PW5. Nevertheless, though admittedly, the witness stated that logbook in respect of government vehicle is maintained, however, logbook of the vehicle was not produced. Moreover, the driver of the official vehicle namely HC Raj Kumar is not a cited witness. As per PW3, the details of the vehicle used were mentioned by him in the departure entry. As stated earlier, departure entry was not produced. As per PW4, he, SI Hari Singh, HC Ashok, Ct. Sanjay and Ct. Ranjeet were sitting in a private car i.e., Ambassador. Thus, the remaining members including the concerned ACP/PW5 would be traveling in the other vehicle i.e., government vehicle. As per PW5, the police team had left in a police Gypsy and the private car. In his cross examination, he submits that he is the supervising officer of the police Gypsy. However, he did not travel in the said police Gypsy as he and the informer had traveled in the private car. He could not tell the source from where it was arranged. He could not remember who else was sitting with them in the private car. He could not recollect if the Inspector and the IO traveled with him or in the Gypsy. Thus again, there are material contradictions in respect to the mode of conveyance and as to which official traveled by which vehicle. If the IO is to be believed that only 5 persons traveled in the private car, then it is beyond FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 20 of 23 comprehension that even senior officer i.e., ACP/PW5 as well as secret informer were also traveling in the same private car alongwith his driver.
So far as aspect of recovery is concerned, I have already pointedout that the search warrant (MarkX) is not proved. There is no compliance of provision of section 100 (4) of Cr.P.C. According to the IO, the first documents prepared by him was the 'handing over memo' of the currency notes (Ex.PW1/A). The police party stayed at the premises in question for two hours. During this time, no other stake receipt was recovered. Although, it is the case of the prosecution that the accused persons indulged into betting/gambling, yet it is surprising that as per PW3, no outsider entered into the room during two hours. It was expected of various other persons who would have placed their bets, as per details recorded in the notbooks seized, to go to the raided premises to collect the wager amount. Surprisingly, no such person was apprehended, examined or produced by the prosecution during evidence. It is in the testimony of PW3 that the seizure memo was prepared prior to sending the rukka. It is also in his testimony that the seal was handed over to Devender which was returned to him after a week. He further submitted that no visiting cards were seized.
As per PW4, the first document in the instant case was prepared on the first floor of the building by the IO while sitting on the table lying in the room from where the accused persons were apprehended. The same is not possible as currency notes handing over memo was prepared even prior to the first visit of PW1 & 4 to the place of incident. PW4 further submits that first of all, IO prepared seizure memo of the recovered money. After that, rukka was prepared. FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 21 of 23
As per PW5, first document prepared by the IO was 'fardhawalgi' of the currency notes. Perusal of the documents i.e, currency handing over memo (Ex.PW1/A) reveals that the same contains FIR No., date of its registration, the relevant provision of law and the police station on it. Similarly, document (Ex.PW1/B) i.e., seizure memo also bears the same particulars. As against the version of the IO, the visiting card (MarkPW3/B) seized from the deceased accused Kamal Suri vide seizure memo (Ex.PW1/E) also bear the case particulars. These documents were prepared prior to preparation of rukka and registration of the case. There is no explanation on record as to how and why particulars of FIR were mentioned on these documents even prior to the registration of the FIR itself. It creates suspicion in the case of the prosecution. In case titled "MOHD. HASHIM VS STATE" 1999 (6) A.D. (DELHI) 569, it was observed that when documents are prepared before registration of F.I.R and it contains the F.I.R. number then inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases benefit of doubt is to be given to the accused.
In fact, there are various other contradictions in the testimony of PW3, 4 & 5 which create doubt in the prosecution's version. The fact that the senior most member of the raiding party i.e., PW5 has been unable to recall a number of basic facts which he could have otherwise easily recalled being supervisory authority is also quiet disturbing.
The aforestated ambiguities create an element of doubt in the prosecution's case and the benefit of the same has to be extended to the accused FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 22 of 23 persons. The prosecution has remained unable to prove its case beyond all of the charge reasonable doubts. In the result, both accused persons are acquitted U/s 3 of the Act. Their Personal Bonds/Surety Bonds are extended for a period of six months in compliance of Section 437A Cr.P.C.
File be consigned to Record Room.
Announced in the open court on 30th November 2012.
(MANISH YADUVANSHI) ACMM1/ DELHI It is certified that this judgment contains 23 (twentythree) pages and each page bears my signatures.
(MANISH YADUVANSHI) ACMM1/ DELHI FIR No. 502/1995 State Vs Anil Talwar & Anr. Page 23 of 23