Delhi District Court
A Match Was Running Between New Zealand vs Sri Lanka On on 18 March, 2011
IN THE COURT OF SH. NAVEEN GUPTA, MM,
KARKARDOOMA COURTS, DELHI
1. FIR No. : 204/2007
2. Date of Offence : 24.04.2007
3. Name of the complainant : SI Arun Kumar
4. Name, parentage and Address :
of the accused 1.Sandeep
S/o Late Sh. V.P. Gupta,
R/o H. No. 460/4 Gali No. 18,
Bholanath Nagar, Shahdara,
Delhi.
2. Pankaj S/o Ashok Chopra,
R/o 30/68 A, Street No. 8,
Vishwas Nagar, Shahdara,
Delhi
5. Offences complained of : Section 3 & 4 of The Delhi
Public Gambling Act.
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving the order : 18.03.2011.
8. Sentence or final order : Accused persons are acquitted
9. Date of order : 18.03.2011.
FIR No. 204/07
PS: Mandawali.
State v. Sandeep etc 1/10
JUDGMENT
1. The case of the prosecution is that on 24.04.2007 at about 11.10 pm, at House No. A103/104, Gali No.7, 1st Floor, the accused persons were found gaming with regard to cricket match between Sri Lanka and New Zealand, watching the same by TV. On the said allegations, accused persons were charged with the offence under Section 3 & 4 of The Delhi Public Gambling Act (hereinafter referred as 'the said Act').
2. After investigation, chargesheet was filed against the accused persons. The copies of chargesheet were supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, notice was served upon the accused persons under section 3 & 4 of the said Act to which they pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined 7 witnesses. PW1 is SI Sheo Pal Singh, Duty Officer; PW2 is HC Amarjeet Singh, head constable involved in the investigation; PW3 is Ct. Jagdish; constable involved in the investigation; PW4 is HC Beer Pal Singh 2nd Investigating Officer; PW5 is SI Arun, 1st Investigating Officer; PW 6 is ASI Rajender Prasad, MHC(M); PW7 is Sh. Ajay Choudhary, Deputy Director, IB, Delhi.
FIR No. 204/07 PS: Mandawali.
State v. Sandeep etc 2/10
4. After conclusion of evidence, statement of accused persons were recorded wherein accused persons claimed to be innocent and denied the allegations against them. They submit that they had been falsely implicated in the present case. Accused persons, however, did not lead the defence evidence.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. Now, PW1 tendered endorsement on rukka Ex. PW 1/A and FIR, copy of which is Ex. PW1/B. PW2 submitted that on 24.04.2007, he alongwith SI Arun Kumar and Ct. Jagdish reached at the Sai Chowk, Madhu Vihar, Delhi. Thereafter, SI Arun Kumar inspected the spot and found that some foulplay is going on. SI Arun Kumar left them at he spot and went to DCP Office to receive search warrant. SI Arun Kumar came back at the spot along with search warrants at about 11 pm. Thereafter, they reached at the first floor of the house no. A 103, 104, Gali No.7, Madhu Vihar, Delhi; they entered the house and found a match was running between New Zealand v/s Sri Lanka on Television; two persons were present there and one was receiving the FIR No. 204/07 PS: Mandawali.
State v. Sandeep etc 3/10
calls on his mobile phone and other one was making entries regarding sattas on the notebook. He further submitted that IO recovered all the articles i.e. one television, four mobile phones, two notebooks and pen, in a plastic bag and bag was sealed with the seal of AK and seizure memo was prepared vide Ex. PW 2/A; IO prepared rukka and got the case registered through Ct. Jagdish and after registration he returned at the spot with rukka and copy of FIR alongwith HC Beer Pal to whom further investigation was entrusted. He further submitted that accused persons were personally searched vide memos Ex. PW 2/B and Ex. PW 2/C and were arrested vide arrest memos Ex. PW 2/D and Ex. PW 2/E. He identified case property i.e. television Ex. P1, mobile phones Ex. P2 to P5, Pens are Ex P6 to P7 and 12 papers are Ex. P8 (colly).
PW3 and PW4, too, deposed on the similar lines as deposed by PW
2. PW4 tendered site plan Ex. PW 4/A. PW5, too, submitted on the similar lines as deposed by PW2. PW5 tendered rukka Ex. PW 5/A. PW6 submitted that on 25.04.2007, IO deposited one Plastic Katta duly sealed with the seal of AK in the malkhana of PS Mandawali; he FIR No. 204/07 PS: Mandawali.
State v. Sandeep etc 4/10
made an entry in register no. 19 at serial no. 1746. He further submitted that IO also handed over him jama talashi articles recovered from the accused persons whose entry is made in register no.19 at serial no. 1746 ; photocopy of the said register is Ex. PW6/A. PW7 submitted that 24.04.2007, IO came to his office and requested to issue search warrants; after necessary enquiry he had given search warrants to him vide Ex. PW 7/A.
7. Ld. Counsel for the accused persons submitted that out of four mobile phones which were allegedly seized from the possession of the accused persons, two mobile phones bear different IMEI Numbers in seizure memo from their actual numbers; two mobile phones did not have SIM cards in them; further, the Investigating Officer had not bothered to ascertain the ownership over the recovered mobile phones and related SIM cards to authenticate the involvement of accused persons in the alleged offences. Ld. Counsel further submitted that the papers which were allegedly recovered from the accused persons at the spot bore the dates as 09.04.2007, 12.04.2007, 19.04.2007; hence, the above mentioned observation, itself, falsified the case of the prosecution that accused persons were found playing betting on 24.04.2007 and were found recording their dealings. Further, there FIR No. 204/07 PS: Mandawali.
State v. Sandeep etc 5/10
were material contradictions regarding the timings of different steps taken during investigation in the testimonies of prosecution witnesses. Further, PW3 deposed that IO had recorded statement of one neighbour in his presence while PW4 and PW5 submitted that no public person was joined in the investigation. He, lastly, submitted that from the above mentioned, it is clear that accused persons had been falsely implicated in the present case.
8. Now, prosecution has examined three material witnesses, PW2, PW3 and PW5 who are stated to be witnesses to the recovery of case property from the possession of the accused persons. But, there are material contradictions in the testimonies of material prosecution witnesses regarding the timings of different steps taken during investigation. Firstly, PW3 submitted that he remained at the spot till about 12.30 am in the mid night of 24/25.04.2007 while PW4, 2nd Investigating Officer, submitted that he reached at the spot at about 1.45 am. Further, PW1 deposed that he handed over the copy of FIR to PW4 at 2 am. There is no coherence in the testimonies of above mentioned witnesses regarding timings.
9. Further, PW3 submitted that IO had recorded statement of one FIR No. 204/07 PS: Mandawali.
State v. Sandeep etc 6/10
neighbour in his presence. He admitted the suggestion that place of incident was public place and public persons were coming and going from there. But there is no such statement of neighbour on record. Moreover, Investigating Officers deposed that no independent witness was joined during investigation.
Further, the version of PW6 that case property was deposited by SI Arun Kumar on 25.04.2007 at about 8 pm creates doubt that when the Investigation would have been completed by 34 am on that day then why the case property was deposited in the malkhana at 8 pm. At this stage, the argument of Ld. Counsel that no independent witness was joined by investigation agency finds relevance. I consider the legal position on this point. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
8. It therefore emerges that noncompliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is wellsettled that the testimony of FIR No. 204/07 PS: Mandawali.State v. Sandeep etc 7/10
a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied] Considering facts and circumstances of the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the abovementioned creates doubt on the case of the prosecution.
10. Now, even if, for the sake of arguments, the above mentioned observations are kept aside; the testimonies of above mentioned witnesses have not been able to prove the alleged commission of offence.
Firstly, the perusal of the papers allegedly recovered from the possession of the accused persons reveals that the same bear the dates 09.04.2007, 12.04.2007 and 19.04.2007. The above mentioned FIR No. 204/07 PS: Mandawali.
State v. Sandeep etc 8/10
observation was confirmed by PW2 in his deposition. The case of the prosecution is that on 24.04.2007, accused persons were found making entries regarding sattas on notebook then why the papers produced before the court were not having the relevant date i.e. 24.04.2007. Further, the Investigating Officer did not take any step for getting the opinion of handwriting expert qua matching of handwriting on the papers Ex. P8 with that of accused persons to authenticate the involvement of accused persons in the commission of alleged offences.
Further, all the material witnesses had stated that the accused persons were found in the possession of two notebooks too but there is no such averment of seizure of those notebooks in the seizure memo Ex. PW 2/A. The same had not been produced before the court during trial too.
Further, when the Investigating Officer was in the possession of four mobile phones which were used for the purpose of playing sattas then it is incomprehensible that why Investigating Officer did not get the details of phone calls made by the accused persons during the relevant time to verify and to establish the alleged commission of the offence of gaming by the accused persons. Further, he did not even try to ascertain the ownership over the SIM cards of those mobile FIR No. 204/07 PS: Mandawali.
State v. Sandeep etc 9/10
phones.
Lastly, PW2 admitted that SIM cards were not available in two mobile phones out of four mobile phones. It seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
Above all, the prosecution has merely furnished some papers Ex. P8, which bore some numbers only, to prove the commission of offence of gaming; but, it has not led any evidence to decipher those numbers by way of any expert opinion or otherwise.
11. In view of above said discussion, the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. Accordingly, I acquit the accused persons. Bail bond canceled. Surety discharged. Any endorsement placed on the documents of the surety may accordingly be canceled and returned. Case property be confiscated to the State. Same be disposed of as per law.
File be consigned to Record Room.
Announced in open Court Naveen Gupta
(1+2 Copies) MM/Delhi/18.03.2011
FIR No. 204/07
PS: Mandawali.
State v. Sandeep etc 10/10