Delhi District Court
State vs . Sanjay Kumar Etc on 17 January, 2022
IN THE COURT OF SH. BABRU BHAN,
ACMM (NORTH WEST), ROHINI COURTS, DELHI
STATE VS. SANJAY KUMAR ETC
FIR NO. 618/07
PS: ADARSH NAGAR
U/s: 3/4/9/55 of Delhi Public Gambling Act
Case ID : 538611/2016
Date of commission of offence : 24.09.2007
Name of the complainant : SI SHIV DARSHAN,
NO. D-88, Special Team, C&R
Delhi.
Name of accused and address : (1) VINOD KUMAR
S/o Sh. Krishan Lal,
R/o: H.No. 44, C Block, Phase
IV, Ashok Vihar, Delhi
(2) SANJAY KUMAR
S/o- Late B.R. Juneja,
R/o: H.No. R-57, Vani Vihar,
Uttam Nagar, Delhi.
Offence complained of or proved : U/s 3/4/9/55 of Delhi Public
Gambling Act
Plea of the accused : Pleaded not guilty
Date on which reserved for judgment : 17.12.2021
Date of announcing of judgment : 17.01.2022
Final Order : ACQUITTED
Digitally signed
by BABRU
CASE No. 538611/2016 BABRU BHAN
Date:
FIR No. 618/2007 BHAN 2022.01.17
16:11:14
+0530
PS- Ashok Vihar
State Vs. Vinod Kumar Etc page 1/15
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. Brief facts of the case of the prosecution are that on 24.09.2007, SI Shiv Darshan PW2 was posted in the SIT Crime Branch. On the said date, he alongwith HC Pradeep, Ct Sanjay PW5 and Ct. Satish Kumar PW6 and Inspector Raj Kumar were moving in the area of Ashok Vihar. When they were present in the area of Ashok Vihar, they received a secret information that a person in the name of Vinod Kumar was engaged in illegal betting on 20-20 cricket match between India and Pakistan from his house at Flat No. 44, Ground Floor, LIG Flats, Ashok Vihar Phase IV.
Delhi. The veracity of the information was verified and same was found to be correct. Accordingly, Ct Sachin, Ct Satish PW6 and HC Pradeep were deployed secretly in the proximity of the flat.
2. Thereafter, SI Shiv Darshan PW2 alongwith Inspector Raj Kumar went to PHQ at about 5.00 pm and obtained search warrants Ex. PW2/H from the concerned DCP and returned to the spot at about 6.40 pm. They asked 4-5 public persons to join investigation but none agreed and left the spot mentioning one excuse or another. In the meanwhile, ASI Dev Raj and Ct Satbir also reached the spot and joined the raid. PW2 conducted the personal search of Ct Sanjay and took the belongings from him. Thereafter, PW5 HC Sanjay Kumar was handed over one currency note of Rs. 1000/- and two currency notes of Rs. 500/- each vide handing over memo Ex. PW2/A and was directed to stake the money on the victory of Indian cricket team. Ct Satish PW6 was deployed as shadow witness. Shadow witness CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 2/15 PW6 was directed to make a signal by waving his right hand after finalizing the deal.
3. Both the aforesaid Constables PW5 and PW6 were finally sent inside the house at about 6.55 pm. At about 07.05 pm, PW6 came out and made the requisite signal. On getting the signal, PW2 alongwith the raiding party entered the flat wherein they saw two persons whose names were subsequently revealed as Sanjay Kumar and Vinod Kumar were present. Accused Vinod was attending the calls and also writing in notebook. They were explained the reasons of raid. Ct Sanjay informed that he had handed over Rs. 2000/- on the victory of Indian cricket team to accused Vinod Kumar. Out of the said amount, Rs. 1000/- was handed over by accused Vinod to accused accused Sanjay. He also stated that accused Vinod had made entries in this regard in the notebook. Ct Sanjay also informed PW2 SI Shiv Darshan that accused Sanjay wrote a slip that Rs. 3600/- would be paid on the victory of Indian cricket team. Ct. Sanjay and Ct Satish also counter signed the said slip.
4. Personal search of accused Vinod was conducted and Rs. 1000/- was seized from him vide memo Ex. PW2/B. Similarly, two notes of Rs. 500/- each were recovered from accused Sanjay vide memo Ex. PW2/C. Ct Sanjay handed over the receipt issued to him by accused Vinod which was seized vide memo Ex. PW2/D. The TV on which the cricket match was being watched live was also seized vide memo Ex. PW2/E. The notebook was seized vide memo Ex. PW2/F. Two mobile phones recovered from accused persons were seized vide memo Ex. PW2/G. Thereafter, SI Shiv CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 3/15 Darshan PW2 prepared rukka Ex. PW2/I and handed over the same to HC Sanjay Kumar PW5 for registration of FIR.
5. On the basis of rukka, SI Amar Singh PW2 who was working as DO, registered FIR Ex. PW1/A and appended counter endorsement Ex. PW1/B on the rukka.
6. HC Sanjay Kumar PW5 returned to the spot alongwith the copy of FIR and original rukka. Further investigation of the case was handed over to SI Charan Singh PW4 who prepared site plan Ex. PW4/A at the instance of SI Shiv Darshan PW2 and recorded statements of Ct Satish and Ct Sanjay. After interrogation, accused persons were arrested vide memos Ex. PW4/B and Ex. PW4/C respectively. Their personal search was conducted vide memos Ex. PW4/D and Ex. PW4/E. Both the accused persons were brought to the Police Station. Property was deposited in the malkhana. Since, the offence under consideration was bailable, both the accused persons were released on police bail vide bonds Ex. PW4/F and Ex. PW4/G.
7. Charge for offence U/s 3/4 of Delhi Public Gambling Act was framed against the accused persons on 06.10.2009 to which they pleaded not guilty and claimed trial.
8. During prosecution evidence, prosecution has examined 06 witnesses.
CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 4/15
9. The case of the prosecution primarily relies upon the testimonies of police witnesses who were members of the raiding party i.e PW2, PW5 and PW6. The testimony of PW2 has already been dealt with in detail by this Court while narrating the facts of the case. PW5 and PW6 have deposed in sync with PW2. To ensure brevity, this Court need not note the detailed testimonies of these witnesses as their brief roles in the process of investigation have already been delineated in the forgoing discussions.
10. Madhup Tewari, Additional CP (Licensing), New Delhi appeared as PW3 and deposed in his Court statement that on the relevant point of time, he was posted as DCP Crime and Railway and after verifying the the information conveyed by Inspector Raj Kumar, he issued search warrants Ex. PW2/H.
11. PW4 SI Charan Singh is the IO of the case. He has stated that on 24.09.2007, he was posted as Special Team Crime Branch, Prashant Vihar, Delhi. On that day, he was called at Flat No. 44, Ground Floor, LIG Flats, Ashok Vihar Phase IV. Delhi by Inspector Raj Kumar. In pursuant to the directions, he reached and met Ct Satish, Ct Sanjay, HC Pradeep, SI Shiv Darshan, Inspector Raj Kumar alongwith both the accused namely Vinod Kumar and Sanjay Kumar. Just after 2-3 minutes of his arrival at the spot, SI Shiv Darshan PW2 handed over rukka to Ct Sanjay and sent him for registration of FIR to PS- Ashok Vihar. All the documents and case property alognwith custody of both accused persons was handed over to him. Thereafter, he carried out further formalities of arrest, police bail, seizure CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 5/15 and recorded the statements of witnesses which is already mentioned in the foregoing discussions.
12. After conclusion of prosecution evidence, entire incriminating circumstances were put to the accused persons as per mandate of Section 313 Cr.P.C to which both the accused persons denied the correctness of the case of the prosecution. Accused Vinod pleaded innocence stating that on 24.09.2007, he was home at 5595, New Chandrawal, Gali No. 8, Delhi. On that day, he received a call from PS- Prashant Vihar in the evening. On instructions he reached there and was made to sit. In the meanwhile his friend Sanjay called him on his mobile phone and on his request, Sanjay also came to the PS but he was also detained there. Thereafter, police officials obtained their signatures on some blank papers and they were falsely implicated in this case.
Accused Sanjay Kumar pleaded innocence stating that on 24.09.2007, he left his home for some personal work. In the evening, his friend Vinod called him on his mobile and stated that he had been unnecessarily detained in PS- Prashant Vihar. On request of Vinod, he reached PS- Prashant Vihar where he was also detained. Thereafter, police officials obtained their signatures on some blank papers and they were falsely implicated in this case.
13. Final arguments heard. Now, I proceed with judgment.
14. PW2 SI Shiv Darshan has stated that he received a secret information at about 5.00 pm that accused persons were involved in betting/ CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 6/15 gambling in 20-20 cricket match which was being played between India and Pakistan. He further stated that said information was verified and HC Sanjay, HC Satish and Ct Pradeep were deployed secretly in the nearby spots. The raid was conducted at about 7.05 pm. So, the police party had more than two hours between the exact time of receipt of information and the actual raid to arrange the respectable members of the society or any other independent public person to witness the said raid. However, PW2 SI Shiv Darshan, PW5 HC Sanjay Kumar and PW6 ASI Satish Kumar who all participated in the said raid have deposed in sync in their respective Court statements that the raiding party attempted to join 4-5 passersby in the investigation but they refused to participate in the raid and went away on pretext of one excuse or another. It is nowhere disputed that the spot of the alleged crime was a residential area and many public persons were available nearby.
15. At this stage, reliance can be placed upon the judgment passed by Hon'ble Delhi High Court in case titled as Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), wherein it was observed that:
"It is repeatedly laid down by this Court that 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 evident 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 No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 7/15 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."
This Court is conscious about the hardships faced by the police in joining public persons in the process of investigation because generally, public is reluctant to be part of legal process and the consequent inconvenience. Still, the investigating agency is duty bound to show on record that genuine efforts were made by them to include public witness in the investigation. If 4-5 public persons were present there and they were asked to join investigation, IO was supposed to note down their names and addresses and should have issued proper notices to them. However, no such exercise was carried out by the IO. Thus, the requisite sincerity is not reflected in the alleged efforts made by the IO to join public witnesses. Non joining of public witness despite their availability raises suspicion on the version of the prosecution and would definitely effect the credibility of the prosecution's case. Possibility cannot be ruled out that accused persons might have been falsely implicated for the reasons as explained by them in their statements U/s 313 Cr.P.C.
16. Next, Chapter 22 rule 49 of the Punjab Police Rules, provides that;
CASE No. 538611/2016 FIR No. 618/2007PS- Ashok Vihar State Vs. Vinod Kumar Etc page 8/15 "Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered: (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 personally by signature or seal. Note:The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
17. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 9/15 a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution".
Although, DD Ex. PW2/D1 was made but it nowhere mentions that police party was going to Ashok Vihar area for some specific reason. Thus, this formal DD entry would not serve any purpose. Non-compliance of a statutory rule would again compel this Court to visit the version of the prosecution with a strong element of suspicion.
18. Prosecution has claimed that when decoy customer Ct Sanjay PW5 and shadow witness Ct. Satish Kumar PW6 were sent inside, they stake amount of Rs. 2000/- on victory of India and handed over the amount to accused Vinod Kumar who further handed over Rs. 1000/- to accused Sanjay Kumar. Thereafter, they noted down the record of the betting in a notebook and issued counter receipt to decoy customer HC Sanjay PW5. During cross-examination, specific question was put to PW2 SI Shiv Darshan whether the investigating agency had verified the details and whereabouts of the persons whose details had been written in the notebook, recovered from accused persons. In response to the suggestion, he admitted that no such verification was done by him.
Statement of PW4 SI Charan Singh is also silent about any verification of phone numbers which were mentioned in the notebook allegedly recovered from the possession of accused Vinod Kumar. Those phone numbers were probably the phone numbers of those persons who had staked money on betting. Now, if the accused persons were indulged in betting, those persons would have been equally liable for the offence. So, CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 10/15 the proper course of investigation for the police should have been to verify the subscribers of those phone numbers and to investigate as to whether they were involved in any alleged betting or not. Their statement would also have corroborated the statements of decoy customer and shadow witness that accused persons had received money for betting. Since, no such exercise was carried out, therefore, the notebook recovered would not provide much help to the case of the prosecution.
19. Furthermore, prosecution has claimed that after noting down the payment made by the decoy customer, accused persons had issued acknowledgement slip. To prove the handwriting of the accused on the said receipt, IO should have sent the same for opinion of the handwriting expert. However, the receipt was not sent for opinion of handwriting expert. Thus, besides the oral statement of the decoy customer Ct Sanjay PW5 and shadow witness Ct. Satish Kumar PW6, there is nothing on record to show that the receipt which was seized vide memo Ex. PW2/D was written by accused Vinod Kumar.
20. Relevant it would be to mention here that two mobile phones Ex. P7 & P8 were recovered from the possession of the accused persons. During investigation, IO was supposed to obtain the CDR of the mobile phones and to interrogate the persons who were called by the accused persons from those two mobile phones. The CDR details of the mobile phones would have proved the purpose the mobile phones were being used by the accused persons that day. However, said evidence was also not collected.
CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 11/15
21. During the course of arguments, Ld defence counsel invited the attention of this Court towards the cross-examination of PW3 wherein he admitted that every document issued under the signatures of DCP Crime and Railway is duly entered in record against proper diary number and same also bears the date and dispatch number. However, it was pointed out that no time was mentioned on such documents. PW3 also admitted that no dispatch number was mentioned on the search warrants Ex. PW2/H. If the search warrant was issued on the alleged date and time, it should bear the requisite details of diary number and dispatch number. Absence of these essential details on the search warrant would again raise doubt on the veracity of the raid allegedly conducted by the police.
22. Returning to the statements of decoy customer Ct Sanjay PW5 and shadow witness Ct. Satish Kumar PW6. Statement of PW5 was recorded on 24.03.2015. Thereafter, repeated reminders were given to the prosecution to call this witness for cross-examination but prosecution failed to recall this witness for his cross-examination. This Court vide order dated 18.02.2020, closed the opportunity. Since, the testimony of PW5 has not been tested upon the touchstone of cross-examination, same cannot be taken into judicial calculus. Finally this Court resort towards the testimony of PW6 Ct Satish Kumar who is now the only remaining witness of the fact that accused persons had obtained Rs. 2000/- from the decoy customer for betting on the victory of Indian cricket team on that day.
CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 12/15
23. There is no quarrel that HC Sanjay Kumar PW5 was a decoy customer and ASI Satish Kumar PW6 was the shadow witness. In case titled as Major E.G. Barsay Vs. The State of Bombay, the Hon'ble Supreme Court of India has made the following observations which are to be taken into consideration while analyzing the testimony of decoy witness. The said observations are as under:
"To convict an accused upon the partisan evidence of a person at whose instance a trap is laid by the police is neither illegal nor imprudent, because it is just possible that in some cases an accomplice may give evidence because he may have a feeling in his own mind that it is a condition of his pardon to give that evidence, but no such consideration obtains in the case of the evidence of a person who is not a guilty associate in crime but who invites the police to lay a trap. All the same, as the person who lodges information with the police for the purpose of laying a trap for another is a partisan witness interested in seeing that the trap succeeds, it would be necessary and advisable to look for corroboration to his evidence before accepting it. But the degree of corroboration in the case of a tainted evidence of an accomplice would be higher than that in the case of a partisan witness........".CASE No. 538611/2016 FIR No. 618/2007
PS- Ashok Vihar State Vs. Vinod Kumar Etc page 13/15
24. In this case, police has projected the story that accused persons received an amount of Rs. 2000/- from HC Sanjay Kumar PW5 and ASI Satish Kumar PW6 for betting. Now, since PW5 and PW6 were decoy customers, therefore, their testimonies was required to be corroborated by other material of independent nature to convict the accused persons. However, besides the testimony of shadow witness, there is nothing on record which shows that a 20-20 cricket match was going on between India and Pakistan on the date of incident and accused persons had accepted money for betting. As per the story of the police, accused persons had maintained a diary in which many phone numbers were written but no investigation in this regard was conducted as to whether those phone numbers were of the persons who were involved in betting with the accused persons. Moreover, had the accused persons being involved in illegal betting, besides the amount of Rs. 2000/- allegedly handed over to them by decoy customer, more money paid by other customers should have been recovered from them. But surprisingly, besides the amount of Rs. 2000/- paid by the decoy customers, nothing was recovered from their possession. Prosecution has also failed to show that the acknowledgement receipt which was allegedly given by accused persons was bearing the handwriting of the accused persons. Police party had two hours prior intimation of the alleged offence. Despite having sufficient time, they failed to arrange any independent witness. Under the aforesaid circumstances, it can be said that the case of the prosecution is full of doubts.
25. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The CASE No. 538611/2016 FIR No. 618/2007 PS- Ashok Vihar State Vs. Vinod Kumar Etc page 14/15 standard of proof is not preponderance of probabilities but proof beyond all reasonable doubts. It is well settled legal preposition that the benefit of doubt goes in favour of accused. Under the circumstances, it would not be safe to convict the accused persons merely on the basis of testimonies of the police officials. Accused Sanjay Kumar and Vinod Kumar are thus entitled to benefit of doubt and are accordingly acquitted for offence U/s 3/ 4 of Delhi Public Gambling Act.
File be consigned to Record Room after due compliance.
Digitally signed by BABRU Announced in the open Court BABRU BHAN
BHAN Date:
2022.01.17
on 17.01.2022. 16:11:32 +0530
(BABRU BHAN)
ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE (NORTH WEST)
ROHINI COURTS, DELHI
CASE No. 538611/2016
FIR No. 618/2007
PS- Ashok Vihar
State Vs. Vinod Kumar Etc page 15/15