STATE OF RAJASTHAN Vs. RAJ KUMAR

JUDGEMENT

(1.) This is an appeal filed by the State with the leave of this Court against the i judgment of the Judicial Magistrate, Jhunjhunu, dated Aug. 31, 1974, by which Raj Kumar, respondent, was acquitted of the offence punishable under Sec. 13 of the Rajasthan Public Gambling Ordinance, herein after referred to as the Ordinance.

(2.) The case for the prosecution briefly was that Sube Singh, Station House I Officer, Police Station, Jhunjhunu received a credible information from an informer I that Raj Kumar, respondent, was gambling (known as 'GHADIOKI KHAI WALA SATTA) by accepting bets from other persons. Upon receiving this information, Sube Singh, S. H. O., decided to arrange a trap on Dec. 19, 1972 and got a currency note of Re. 1/-, No. M. /82174678 D initialled by the Deputy Superintendent of Police Shri Ramjeewan and made it over to the informer with a direction that he should lay a bet with Raj Kumar, respondent, and gave a signal after his bet was accepted by the latter. The informer in pursuance of the direction given to him by Sube Singh, the Station House Officer went to Raj Kumar, respondent, gave him the initialled currency note for Re. 1/-, and lay a bet with him on figure 4. After laying the bet the informer gave a signal to the Station House Officer, Sube Singh and the Deputy Superintendent of Police Shri Ram Jeewan. The Deputy Superintendent and 9 the Station House Officer then rushed to the spot and got the person of the respondent searched by a constable. Upon search, the initialled currency-note was recovered from the possession of the respondent in the presence of Bajrang Lal and Sita Ram Motbirs. Along with the currency note of Re. 1/-, bearing the initials of the Deputy Superintendent of Police, other currency notes of the value of Rs. 69.00, and a copy having account of bets were also recovered from the pocket of his 'Kurta'. Seizure memo Ex. P. 1 was prepared and after collecting other necessary evidence, the respondent was challaned under section 13 of the Ordinance in the Court of the Munsiff and Judicial Magistrate, Jhunjhunu. The learned Magistrate tried the respondent for the aforesaid offence of gambling and came to a conclusion upon evidence available on the record that the prosecution could not make out a case against the respondent beyond reasonable doubt. He, therefore acquitted the respondent of the charge under section 13 of the Ordinance. Aggrieved by the order of acquittal, the State E obtained leave to appeal to this Court and preferred this appeal.

(3.) I have carefully perused the record and heard Mr. Shivraj Behari Mathur, Public Prosecutor, for the State and Mr. Jagdeep Dhankar, learned counsel for Raj Kumar, respondent. It was urged by the Public Prosecutor that the learned Judicial Magistrate committed an error in acquitting the respondent of the charge under section 13 of the Ordinance merely on the ground that Bajrang Lal and Sita Ram Motbirs, in whose presence the recovery of initialled currency note of Re. 1/-. was alleged to have been made, turned hostile to the prosecution case and denied the factum of recovery of the note from the possession of the respondent. According to the submission of the learned Public Prosecutor, there is ample reliable evidence of the Deputy Superintendent of Police Shri Ram Jeewan, and Sube Singh, Station House Officer and Dariyav Singh, L.C. in proof of the recovery of the initialled currency notes from the pocket of the 'Kurta' of the respondent and this trust worthy evidence could not K be lightly brushed aside merely on the ground that they were witnesses of the Police Department.