Delhi District Court
"18. It Is Repeatedly Laid Down By This ... vs Unknown on 22 June, 2023
IN THE COURT OF MS. SANYA DALAL
MM-01: NORTH-WEST: ROHINI COURTS: NEW DELHI
State v. Virender @ Mantu
FIR No. : 134/2020
U/s : 12 of the Delhi Public Gambling Act
P.S. : Sultanpuri
JUDGMENT
a) Sl. No. of the case : 1456/2021
b) Date of institution of the case : 22.02.2021
c) Date of commission of offence : 29.01.2020
d) Name of the complainant : Ct. Mukesh, No. 1526/OD.
e) Name & address of the : (1) Virender @ Mantu
S/o Sh. Mohan Lal
R/o H. No. P-3/22, Sultanpuri,
Delhi.
(2) Sanjay S/o Sh. Mithhan Lal
R/o P-1, Block Jhuggi No. 70,
Sultanpuri, Delhi. (Pleaded guilty
and convicted vide order dated
22.02.2021)
(3) Sadik S/o Sh. Sahanoor
R/o P-1/602, Gali No. 16,
Sultanpuri, Delhi.
(Pleaded guilty and convicted
vide order dated 22.02.2021)
f) Offence charged with : 12 of the Delhi Public Gambling
FIR No. 134/20 State v. Virender @ Mantu & Anr. page 1 of 11
Act
g) Plea of the accused : Pleaded Not Guilty
h) Arguments heard on : 24.05.2023
i) Final order : Acquitted
j) Date of Judgment : 22.06.2023.
BRIEF STATEMENT OF REASONS FOR DECISION
1. The case of the prosecution is that on 29.01.2020 at about 06.40 p.m. near Koyla Park, P-3 Sultanpuri, Delhi within the jurisdiction of P.S. Sultanpuri, accused Virender @ Mantu was found doing gambling in public place in contravention of provisions of Delhi Public Gambling Act. Investigation was carried out accordingly.
2. Upon completion of investigation charge sheet was filed and pursuant to their appearance, accused persons were supplied with the copy of charge sheet in compliance of Section 207 Cr.P.C. and matter was listed for consideration on notice.
3. Upon hearing the arguments advanced by the Ld. Counsel for the accused and on perusal of record, prima facie case against the accused Virender for the offence punishable u/s 12 of Delhi Public Gambling Act was found to be made out. Accordingly, the notice was framed against the accused Virender @ Mantu to which he pleaded not guilty and claimed trial.
FIR No. 134/20 State v. Virender @ Mantu & Anr. page 2 of 11
4. In order to substantiate the allegations, prosecution examined 05 witnesses.
5. PW1 HC Rakesh was MHCM who registered the entries at register no. 19.
During cross-examination, he deposed that IO did not record his statement after depositing the case property. He did not remember the exact time when IO deposited the case property however, it was evening.
6. PW2 Ct. Dinesh and PW3 Ct. Mukesh, deposed that on 29.01.2020, they were on patrolling duty in the area of P3 Block, Sultanpuri, Delhi and caught the accused persons red handed while they were gambling at public place and witnessed the entire proceedings i.e. preparation of seizure memo, arrest memos, preparation of rukka, etc. carried out by IO on the spot.
During cross-examination, they deposed that they made their departure entry but did not remember the same. The distance between the koyala wala park and the PS was about 300-400 meters. They were having mobile phoes of android system at that time. No videography and photograhy was made by them of the alleged gambling activity done by the accused persons. IO came to the spot on private car. They finally left the spot at about 10.00 PM.
7. PW4 HC Karampal brought the previous conviction FIR No. 134/20 State v. Virender @ Mantu & Anr. page 3 of 11 report of accused Virender @ Montu.
During crossÂexamination, he admitted that he did not file the status report of the cases mentioned in the report.
8. PW5 HC Rajesh was IO of the case who deposed that on 29.01.2020 after receiving DD no. 58 A he went to the spot and obtained the custody of the accused persons alongwith the recovered satta parchi and currency of Rs. 2680/-. Thereafter he requested 4-5 public persons to join the investigation but none of them agreed and left the spot without disclosing their name and address. He prepared seizure memo of 12 satta parchi and the currency note of Rs. 2680/- and the seizure memo was Ex. PW3/C. Thereafter, he recorded the statement of Ct. Mukesh which was Ex. PW3/A. The tehrir was handed over to Ct. Mukesh for the registration of the FIR who went to the PS and returned alongwith copy of FIR and the original rukka. Thereafter he prepared site plan Ex. PW3/B, accused was arrested vide memo Ex. PW3/D and were released on furnishing bail bond vide Ex. PW5/B. The witness correctly identified the case property.
During cross-examination, he stated that he did not make any separate departure entry. He deposed that the distance between the spot and teh PS was about 700-800 meter after reaching the spot, firstly he prepared the seizure memo. He deposed that no public persons were present in the park. He admitted that at the spot public persons were going and coming and no legal notice or action was taken against them for non joining the investigation. He denied FIR No. 134/20 State v. Virender @ Mantu & Anr. page 4 of 11 the suggestion that currency of Rs. 2680/- belonged to the accused as his personal earning.
5. Following documents were tendered during the evidence of these witnesses -
(i) Ex. PW-1/A - copy of entry in register no. 19.
(ii) Ex. PW-2/A, Ex. PW2/B and Ex. PW2/C - arrest memos
(iii) Ex. PW-2/ D, Ex. PW2/E and Ex. PW2/F - personal search
memos
(iv) Ex. PW-3/A - statement of PW3 Ct. Mukesh
(v) Ex. PW-3/B - site plan
(vi) Ex. PW-3/C - Seizure memo
(vii) Ex. PW-3/D, Ex. PW3/E and Ex. PW3/F - Disclosure
statement
(viii) Ex. PW-4/A - Previous conviction report of accused
Virender @ Montu
(ix) Ex. P-5/A-tehrir
(x) case property - P-1 (colly).
6. Apart from these documents, the accused admitted the genuineness of recording FIR No. 134/20 and DD No. 58A, certificate u/s 65B of Indian Evidence Act u/s 294 Cr.P.C., without admitting the contents of the same. Prosecution evidence was thereafter closed.
7. Separate statements of accused was recorded u/s 313 FIR No. 134/20 State v. Virender @ Mantu & Anr. page 5 of 11 Cr.P.C., wherein all the incriminating evidence was put to the accused, to which he stated that he is innocent and has been falsely implicated.
He did not wish to lead defence evidence.
8. Arguments were advanced by the Ld. APP for State and Ld. Counsel for the accused. Case file perused.
9. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found gaming/playing for money, wager or stake in public place in contravention of Delhi Public Gambling Act and submitted that accused be convicted of the offence charged u/s 12 of Delhi Public Gambling Act.
10. Per contra, Sh. Rajesh Juneja, Ld. Counsel for the accused argued that accused is completely innocent and recovery of case property has been falsely planted upon him. It is further submitted that not joining the public witnesses and not serving any notice to them by the police officials casts doubt on the story of prosecution. It is further argued that the seal was not handed to an independent witness and hence, tampering with the contents of the sealed parcel containing case property can also not be ruled out. Lastly, it is submitted that the prosecution has failed to prove its case beyond reasonable doubt and therefore, the accused persons be acquitted of the alleged offence.
FIR No. 134/20 State v. Virender @ Mantu & Anr. page 6 of 11 APPRECIATION OF EVIDENCE
11. In the present case, prosecution was required to prove that the accused was found gaming/playing for money, wager or stake in public place and the same is sought to be proved by the testimony of the witnesses and the recovery memo. The scrutiny of testimonies of police witnesses and Rukka shows that the accused has been allegedly caught red handed with the alleged case property on 29.01.2020 at about 06.40 p.m. near Koyla Park, P-3 Sultanpuri, Delhi. It is evident from the testimony of PW2, PW3 and PW5 that accused were apprehended at public place, but still no public independent person was cited as a witness in this case. It is evident that no notice was served upon these public persons for not joining the investigation and simply stating that public persons were asked to join the investigation and they did not agree to the same does not inspire confidence; rather, it shows that sincere efforts were not made by the police officials to join independent witnesses despite their availability on the spot. Failure on the part of the police to join independent public witnesses definitely creates reasonable doubt in the story of prosecution and validates the defence version that there is false implication of the accused in the present case and that the recovery has been falsely planted upon the accused. Support is drawn from the decision in Anoop Joshi v. State, 1992 (2) CC Cases 314, wherein, Hon'ble High Court of Delhi, emphasising on importance of joining independent witness during investigation, observed:
FIR No. 134/20 State v. Virender @ Mantu & Anr. page 7 of 11 "18. 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 shopkeepers 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".
12. As per evidence available on record, the seal after use was not given to any independent public person. Moreover, there is no seal handing over memo on record. Further, there is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station or not. In such case, tampering with case property can also not be ruled out. As a result, the benefit of doubt has to be given to the accused. Reliance is placed upon the decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon'ble High Court of Delhi 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. ...... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
FIR No. 134/20 State v. Virender @ Mantu & Anr. page 8 of 11
13. There is another material contradiction with regard to the seizure memo and the same is apparent from the testimonies of the witnesses. It is the case of the prosecution that the case property was seized vide seizure memo, rukka was prepared and handed over to PW-3 for registration of FIR. However, the said seizure memo bears the FIR number and also appears to be in the same ink and in the same handwriting, which indicates that all these documents were prepared at the same time. IO has nowhere deposed that the FIR number was inserted in the said document after registration of FIR. Hence, it raises doubt of false implication of accused and the likelihood of planting of the case property upon the accused. In this regard, reference can be made to the decision of the Hon'ble High Court of Delhi in Mohd. Hashim v. State, (1999) 82 DLT 375, wherein it was observed:
"...... The evidence of Sub-Inspector Narender Tyagi (PW-7) further shows that the rukka (Ex. PW-R/A) was sent to the police station on the basis of which the FIR (Ex. PW-4/A) was registered at the police station Kotwali. The rukka (Ex. PW-4/A) reveals that it was sent to the police station on 16.3.1993 at 1.15 a.m. and the FIR was registered at 1.20 a.m. Surprisingly, the secret information (Ex. PW-7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW.7), the notice under Section 50 of the Act (Ex. PW-5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW-1/A) and the report submitted under Section 57 of the Act (Ex. PW-7/D) bear the number of the FIR (Ex. PW-4/B). The number of the FIR (Ex. PW-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. PW-4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences FIR No. 134/20 State v. Virender @ Mantu & Anr. page 9 of 11 that either the FIR (Ex. PW-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."
15. Perusal of record shows that there is nothing on record to suggest that any specimen/admitted signatures or handwriting of accused was obtained by IO during investigation and sent to FSL along with case property i.e. gambling receipts etc. for the purpose of matching, which could have corroborated the version of prosecution that gambling articles were recovered from the possession of the accused persons. IO even failed to bring on record any explanation for not having done so. This also raises doubt on the story of prosecution and points towards false implication of the accused.
CONCLUSION
16. In a criminal trial, the onus is on the prosecution to prove the guilt of accused beyond all reasonable doubts and in case the story of prosecution appears to be doubtful or lacks credibility, the benefit of doubt has to go in favour of the accused. From the aforesaid discussion, it is clear that the manner in which the inquiry, search and seizure etc. has been conducted in the present case makes the story of the prosecution very doubtful and accordingly, the benefit of doubt has to go in favour of the accused.
17. Therefore, in view of the discussion made herein above and FIR No. 134/20 State v. Virender @ Mantu & Anr. page 10 of 11 considering the facts and circumstances of the present case, this court is of the view that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. Hence, accused Virender @ Mantu stands acquitted of the offence u/s 12 of Delhi Public Gambling Act, 1955 they have been charged with.
Announced in the open Court on 22nd day of June, 2023.
(SANYA DALAL) METROPOLITAN MAGISTRATE-1 NORTH-WEST, ROHINI / DELHI 22.06.2023 FIR No. 134/20 State v. Virender @ Mantu & Anr. page 11 of 11