THAKUR DAS Vs. EMPEROR

JUDGEMENT

(1.) In deciding the present application it is impossible to overlook the fact that the Hathras police have at least on two previous occasions unsuccessfully tried to implicate Babu Lal alias Tirkha, one of the applicants before me, of offences punishable under the Gambling Act, and that in one of those cases the evidence led by the prosecution was positively false. Babu Lal resides in the town of Hathras which has been described by the learned Sessions Judge in the course of his judgment in the present case as a den of gambling." This remark of the learned Judge may or may not he correct; but it is wholly irrelevant in the consideration of the question as to whether there was sufficient material on the record to justify the conviction of the applicants under the Gambling Act. No presumption against the accused can be made by the mere fact that residents of a particular locality are addicted to gambling; and in a case where it is manifest that police has on previous occasions made unsuccessful attempts to falsely implicate a man under the Gambling Act, the Court must before recording an order of conviction, be satisfied that there was evidence of unimpeachable character to support the conviction. In the case before me both the Magistrate and the Sessions Judge came to the conclusion that Babu Lal was proved to be guilty of offences punishable under Secs.3 and, 4, Gambling Act, and 23 other persons who were jointly tried with Babu Lal were guilty under Section 4 of the Act. In examining the evidence in the case the Courts below, however did not take note of the fact that Babu Lal had been on two previous occasions prosecuted by the police for a similar offence, and acquitted. The order of acquittal in one of those cases was passed by this Court after the judgment of the Sessions Judge upholding the conviction recorded by the Magistrate... and the learned Judge, therefore was justified in proceeding on the assumption that Babu Lal had to his credit a previous conviction under the Gambling Act. This assumption does not hold good now. But for this fact and another fact to be presently mentioned I might have, in accordance with the practice of this Court, accepted the findings recorded by the Sessions Judge.

(2.) The observations contained in the judgment of Harris, J. in Babu Lal v Emperor Cri. Rev. No. 169 of 1935, however make it imperative to examine the evidence in this case with a view to ascertain the correctness or" otherwise of the findings recorded by the Courts below. While allowing the application of Babu Lal and setting aside his. conviction under Secs.3 and 4, Gambling Act, the learned Judge observed as follows: What is extremely significant is that this man has been twice challaned by police and on each occasion unsuccessfully. In short, he appears to be just the man whom the police would; have liked to be convicted. I am driven to the conclusion that the desire to convict this man appears to have been greater than the desire to tell the truth, and that both the witnesses for the prosecution were guilty of perjury....

(3.) These observations of the learned Judge-counsel, caution in accepting the evidence led by the police against Babu Lal in the present case as the previous case in which Babu Lal was acquitted by this Court is closely connected with the case giving rise to the present application. On 31 October 1934, the Hathras police obtained two-warrants from the sub-divisional Magistrate under Section 5, Gambling Act to enter and search the house of Babu Lal. The simultaneous issue of two search warrants is a bit odd; but it is not a matter of much consequence in the present case. Armed by the warrants the station officer of Hathras first entered and searched the house of Babu Lal on 1 November 1934 and Babu Lal was in due course prosecuted and convicted by the Magistrate and the Sessions Judge of Aligarh. Babu Lal was however as already stated, acquitted on revision by this Court. After the first raid one of the warrants still remained with the Hathras police and the same was utilised for a raid on Babu Lal's house on 7 November 1934 at 4 a.m. It was the Diwali night and gambling was at the time admittedly going on in Babu Lal's house. The police recovered from the phar 16 cauris, one set of cards, a sum of about Rs. 41 in cash and from a tin (dibya) a sum of Rs. 191-11-3. A gold chain, one gold button set, and one gold ring are also alleged to have been taken possession of by the police at the same time. Babu Lal and 23 other persons were challaned and convicted by the Magistrate. All the accused were sentenced to fine, varying from Rs. 250 to Rs. 5. The total amount of the fine imposed by the Magistrate on the accused was Rs. 1,045 and the judgment of the Magistrate concluded as follows: Two thirds of the fine, when realised, will be at the disposal of the Superintendent of police for distribution in reward to the police. The cash found at phar and recovered from the dibya of nal shall also go towards reward, while the instruments will be returned and all cash and ornaments recovered from the person of the accused shall also be restored to them. The instruments of gaming will be destroyed. Before concluding I must bring to the notice of the Superintendent of Police the name of Babu Jagdamba Prasad prosecuting sub-inspector who has been of great help to me in the trial of this case.