RAMNATH Vs. STATE

JUDGEMENT

(1.) THE Additional District Magistrate, Bhind, who tried Kishan Chand petitioner for the offences under Sections 3 and 4, and seven other accused (including Ramnath and Munnalal petitioners) for the offence under section 4 of the Madhya Bharat Gambling Act, found that in the evening of October 12, 1959, Kalicharan Dixit (P.W. 1) Station Officer, Kotwali, Bhind received information that gambling was going on in the house of Kishan Chand accused, He sent Ram Saran Tripathi (P. W. 7) Head Constable and Govind Bihari (P. W. 9), a clerk in the office of the District Superintendent of Police, to see whether the information was correct. Govind Bihari was given Rs. 15 by the Sub -Inspector to participate in the gambling. After a short while Kishan Chand's house was raided by the Sub -Inspector with whom were two witnesses, Jagdeo (P. W. 3) and Laxmi Narain (P. W. 11). The petitioners and some other persons were found within the house where instruments of gaming, that is, a pair of dice, four packs of cards and cash were seized The learned Magistrate drew a presumption against the petitioners and their co -accused under section 6 of the said Act. He dis -believed their defence and found that accused guilty of the offences with which they were charged, except Mansingh who was acquitted. Kishan Chand was sentended to two months simple imprisonment on each count (concurrent); each of the others was awarded a sentence of one month simple imprisonment. The Additional Sessions Judge, Bhind, dismissed their appeal.

(2.) IT is first contended on behalf of the petitioners that the requisites for the presumption under section 6 did not exist. Learned counsel took me through the entire evidence on which the Conviction was founded. I see no ground to interfere with that finding. Two conditions must be satisfied before a presumption can be raised under section 6. The first is that there must be an instrument of gaming seized in the house and the second is that the house is entered or searched under the provisions of section 5 i. e., after satisfaction upon credible information and after such inquiry as may be thought necessary. In this case, it is undeniable that dice and cards are instruments of gaming. There is over -whelming evidence to prove that these articles were recovered from that part of Kishan Chand's house where all the accused were found. The accused did not come forward with any explanation, but merely denied the seizure of those articles from that place. Shri Anand suggests that these instruments of gaming could have well been planted by the raiding party and the basis of the suggestion is that there is discrepancy in prosecution evidence as to the taking of personal search of the police party, Shri Anand points out to me the statement of Ram Saran P. W 6 that the personal search was taken at the police station, while Laxmi, Ram Saran and Dixit stated that the personal search was taken near Kishan Chand's house. Jagdeo denied that the Sub -Inspector was searched in his presence. I find that there is positive evidence that search was, in fact, taken If there had been some confusion in their mind of one witness about the exact spot of the search, it is not material. The memorandum Ex P. 1 was witnessed by Laxmi and Jagdeo and they admitted to have subscribed these documents. All this aside, there is positive evidence of Govind Bihari P. W. 9 and Shiv Narain P. W. 10 not only that these instruments were in the room but also that the pair of dice was actually being used in gambling. I see no error in the finding of the Courts below that these instruments were seized in Kishan Chand's house and the suggestion that they might have been planted is baseless.

(3.) I am further convinced that the prosecution succeeded in proving that actual gambling took place. Govind Bihari (P. W. 9) the Punter, and Shiv Narain (P. W. 10), the approver, were inside the room and have given details of the person who participated. It is also proved by the statements of Laxmi and Ram Saran that they climbed over a wall of Kishan Chand's house and saw gambling going on. That the door of the house had been chained from inside and that several persons who were not admittedly related to Kishan Chand were found in the same room an inner most apartment of the house are facts which further strengthen the veracity of the prosecution case. The fact that the game of Kaptain was placed is established by cogent evidence on the record. As described by Dixit, in this game the dice is thrown against a wooden plank or an earthen pitcher and it decides who wins and who loses. Shri Anand lays a great deal of stress on Govind Bihari's statement that they were playing with the help of a pitcher. I am at one with the observations made against him in the judgments of the Courts below that this witness tried to produce something useful to the accused. Apart from the fact that from other evidence it is established that they were actually gambling with the help of a plank, the seizure memo Ex. P. 2 clinches the matter. No earthen pitcher was found inside the room. It seems clear to me that the chaff was removed from the grain in an appropriate manner by the Courts below.