Harakchand Radhakishan and Another vs State

Samvatsar, J.—Mr. Satarkar, Sub-Inspector Chatri-(sic)Police Station received information that (sic) in American Futures was being carried (sic)he shop of Shaligram and Harakchand, (sic) on the Biyabani Chaurah. The Sub Ins-(sic) of Police there upon got hold of one Ram-(sic) and on 10-11-1952, at about 9 P.M. gave him (sic)rupee note, which is Article A in this case, (sic)ed him to bet 8 annas on the figure 0 and (sic) on figure 5, with the accused. A Panch-(sic) this delivery of note was duly made in (sic)he number of note given to Ramprasad (sic)ded. Ramprasad is alleged to have car-(sic) the instructions of the Sub Inspector and (sic)bet to Harakchand accused No. 1. The (sic) the accused was immediately, raided and in the search the note Article A and some slips alleged to be in the hand-writing of Harakchand and containing a record of betting in American futures were seized. Both the accused Harakchand and Shaligram were in the shop. They were arrested and later on put up for trial before the Municipal Magistrate at Indore.

The trial Court convicted the accused Harakchand u/s 4 and the accused Shaligram under Sections 3 and 4 of the M.B. Gambling Act. The accused No. 1 was sentenced to simple imprisonment for one month and a fine of Rs. 200/- whereas the accused Shaligram was sentenced to simple imprisonment for one month and Rs. 200/- fine for each of the two offences. Both the accused preferred an appeal which was dismissed by the Sessions Judge, Indore. They have now filed this revision application.

Mr. Balwantsingh, the learned Counsel for the Petitioner challenged the conviction of the accused and submitted that there was no evidence to prove that actually gambling in American futures was carried on in the shop and that the bets were taken and given as alleged by the prosecution. He also contended that there was no evidence that the article seized in the search were in fact instruments of gambling or wore things which the Police Officer had reasonable grounds for suspecting to be the instruments of gambling. Under the circumstances, the learned Counsel urged that the accused could not have been convicted for having been found in the act of gambling or by reason of any presumption arising u/s 6 of the Gambling Act.

The direct evidence of gambling consisted mainly of the statement of the punter Ramprasad and Mr. Balwantsingh contended that the evidence of the punter cannot be considered sufficient for sustaining a conviction unless it is corroborated by some other independent evidence. The learned Counsel placed reliance on two decisions of the Bombay High Court reported in - Emperor Vs. Harilal Gordhan, and - ''Hormazdyar Ardeshir v. Emperor'' AIR 1948 Bom 250 (B), and also the decision of this High Court in the case of - ''Durga Prasad v. State'' 1952 MLR 186 (C). Mr. Balwantsingh further submitted that there was no corroboration available in this case to support the punter''s evidence and the things seized in the search were so innocent in appearance that they could not by themselves constitute the required corroboration.

The learned Dy. Government Advocate who appeared on behalf of the State did not at all dispute the proposition that by itself the evidence of Ramprasad cannot be considered sufficient to support the conviction of the accused but he urged that the recovery of the Muddemal note from the box � MCck � in the shop of the accused and a slip containing the name of Ramprasad gave the necessary corroboration. He further stated that this is not a case where things seized in the search were on the reasonable grounds suspected to be instruments of gaming by the Police Officer but they were in fact instruments of gaming. The note according to the Dy. Government Advocate was given as a bet and the slip Article B was the record of this bet.

The slip or the Pana which is material for consideration is the Article B. It contains the name of punter Ramprasad against which there is also written the words ^^ fejfp vkB vkus] iku vkB vkus A **

The accused has maintained that this was the list of recovery. It is not disputed that the articles mentioned in the slip are sold in the shop of the accused, but according to the Sub Inspector Satarkar the words ^^ fejfp o iku ** are code-words and representing the figures 0 and 5 respectively. The Sub Inspector has however not disclosed his grounds for saying so, nor has told the Court if his interpretation was supported by any personal experience on the point. The evidence of the Sub Inspector is merely his opinion or guess work. As an opinion his evidence cannot be received u/s 45, Evidence Act, as in the present case the Court is not called upon to form an opinion on the point of Foreign Law, science, art or as to identity of hand-writing, nor can it be received u/s 49 as the Sub Inspector did not claim to be an expert having special knowledge of the meaning of the words used in recording betting transactions in American future.

As a matter of fact, there is also no evidence to show how the record of bets in American futures is maintained by those who deal in these transactions. The Sub Inspector Satarkar was himself proceeding on guess work is clear from the fact that in examination-in-chief in the trial Court stated that the code word for the figure 7 was ^^ ''kDdj ** that is Sugar, whereas in cross-examination he said that the word ^^ lkoqu ** i.e" Soap was used for the figure 7. This evidence therefore is not of any use for the purpose of deciphering the alleged code words.

As regards the evidence of the punter, it has been held by Chief Justice Shinde, in the case of - ''1952 MLR 186 (C)'', that a punter cannot be considered to be an independent witness. Such a witness according to the learned Chief Justice being sent by the Police is obviously a witness under their influence. The same view taken (sic) Chaturvedi J. in the case of - ''Anokhilal v. State'' 1953 MLR 303 (D) and by Nevaskar J. in - ''Keshav v. State'' 1953 MLR 319 (E). The appellate Court has however held that a punter Ramprasad was not an unreliable witness and that his evidence was also supported by Ramnath who proved the Article A and slip Article B as instruments of gaming. But as stated above, this High Court has consistently held that the evidence of punter required corroboration in order to sustain a conviction of the accused and by himself the punter cannot be treated as an independent witness.

The witness Ramprasad has not said any thing against the accused. He was not present when the bet was offered and his statement that there was a crowd of "Satta Walas" is meaningless. It is therefore necessary to find out if the articles seized can be of use to corroborate the evidence of the punter Ramprasad.

Prima, facie, e commodities mentioned in Article B in the slip seized are those which are sold in the shop of the accused and appeared to lend a support to their contention that they were lists of recoveries. The learned Dy. Government Advocate has however contended that the fact that the accused have not put any question to P.W. Ramprasad indicates that he had not purchased the articles mentioned in the list or owed any money on that account to the accused, knocks out this defence. In my opinion, it is for the prosecution to prove that the Muddemal slips contain a record of betting transactions or were in any other manner connected with betting in American futures. It was therefore for the prosecution to explain how the bets in American futures are recorded and to satisfy the Court that the slips seized wore a part of this record. No question has been put to Ramprasad, nor has the prosecution adduced any evidence on this point, Satarkar''s evidence (sic) behalf is not satisfactory, and cannot help th(sic) secution. The Muddemal note Article A by(sic) cannot likewise be treated as an instrum(sic) gaming as its presence in the shop cannot sarily be attributed to the betting transa(sic)T Seizure of the note and slips can under th(sic) cumstances lend no corroboration to the ev(sic) of the punter nor can they be held to be in(sic) ments of gaming.

There is thus no reliable evidence the accused were found gambling in American (sic) or that the articles seized were in fact Instruc(sic) of gambling. The result is that the cony(sic) and sentence of the accused cannot be uph(sic) allow the revision application, set aside the(sic) viction and acquit the accused of the offence(sic) which they are charged. The fine if paid(sic) be refunded.