State Of Chhattisgarh vs Narendra Singh Khalsa
2022 Latest Caselaw 3286 Chatt

                                  1

          HIGH COURT OF CHHATTISGARH, BILASPUR

                        ACQ.A. No. 166 of 2012

State of Chhattisgarh

                                                      ---- Appellant

                         Versus



Narendra Singh Khalsa

                                                 ---- Respondents

Post for pronouncement of order on _06_ /05/2022

JUDGE 06 /05/2022

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Order Reserved on : 22.02.2022

Order Delivered on : 06.05.2022

ACQA No. 166 of 2012

• State Of Chhattisgarh Aged About 18 Years Through - District Magistrate, Raipur, Chhattisgarh

---- Appellant

Versus

• Narendra Singh Khalsa S/o Uttam Singh Khalsa Aged About 45 Years R/o Bajrang Ward Bhatapara, Distt. Raipur, Chhattisgarh

---- Respondent

For Appellant/State : Shri Amit Singh Chouhan, PL For Respondent : Shri Basant Kaiwartya, Advocate

Hon'ble Smt. Justice Rajani Dubey

C A V Order

06 /05/2022

Present appeal has been filed under Section 378(3) Cr.P.C.

assailing the impugned judgment and order dated 14.11.2011 passed

by Additional Sessions Judge Bhatapara, district Raipur in Cr.A. No.

21/2011 whereby the court below has allowed the appeal filed by the

respondent/accused and acquitted him of the offence under Section

4-B of the Public Gambling Act.

2. Brief facts of the case are that on the date of incident i.e.

08.12.2010, while Assistant Sub Inspector Shrawan Mishra, police

station Nevra was on patrolling duty, he received information that

respondent/accused Narendra Singh Khalsa was involved in gambling

and sports betting in cricket match near railway station. The ASI along

with his team raided the spot and caught the respondent/accused who

was carrying cash of Rs. 1,84,800/-, a mobile phone and receipts of

betting. Seizure memo was prepared vide Ex.P-1, dehati nalishi Ex.

P-5 was recorded by the complainant and after completion of

investigation, charge sheet was filed against the respondent/accused

before the Judicial Magistrate First Class, Tilda. Charges were framed

under Section 4 (B) of the Public Gambling Act against the

respondent/accused.

3. In order to prove the guilt of the respondent/accused prosecution

has examined as many as 3 witnesses. Statement of the

respondent/accused was also recorded under Section 313 Cr.P.C. in

which he denied the charges levelled against him and pleaded his

innocence and false implication in the case. This apart one defence

witness has been examined by the respondent/accused.

4. After appreciating the oral and documentary evidence, learned

trial court by judgment dated 03.05.2011, convicted the respondent

under Section 4(B) of the Public Gambling Act and sentenced him to

undergo RI for 6 months and to pay fine of Rs. 1,000/- with default

stipulation. Against the said order, the respondent/accused filed

appeal before the learned Sessions Judge where the learned appellate

court allowed the appeal and acquitted him of the charges under

Section 4 (B) of the Public Gambling Act. Hence, this appeal filed by

the State/appellant.

5. Counsel for the appellant/State submits that the appellate court

has erred in acquitting the respondent of the offence as alleged

against him. He submits that the court below has failed to appreciate

the evidence available on record in its proper perspective particularly,

the evidence of Shrawan Kumar Mishra (PW-3) who has specifically

stated that on seeing the police party, the accused tried to run away

and was apprehended only after chasing him. He has stated that cash

of Rs. 1,84,800/-, mobile phone and receipts of betting were seized

from him. He further submits that the learned appellate court was not

justified in discarding the evidence of independent witnesses to

seizure who have categorically proved that the amount and receipts

were related to betting in cricket match. He submits that the trial court

has wrongly believed the defence witness without any documents. In

defence, the respondent/accused has stated that he has received the

amount in connection with his business (pulse trading) but he has not

produced any document or evidence in support thereof. He submits

that the appellate court is not justified by extending too much

weightage to the defence witness Rajkumar Kesarwani. The evidence

of the prosecution has been correctly appreciated by the learned trial

Magistrate and same does not warrant interference therefore the

acquittal of the respondent/accused is improper, unjust and the same

is liable to be set aside.

6. On the other hand, counsel for the respondent/accused

supported the impugned judgment and submits that the ASI Shrawan

Kumar Mishra (PW-3) has admitted in his cross examination that

"izdj.k ds vuqla/kku ds nkSjku fdzdsV lV~Vk [ksys tkus dk LFkku dk dksbZ tkap

esjs }kjk ugha dh x;kh gSA esjs }kjk izn'kZ ih&2 iz-ih-&1 ,oa iz-ih-&3 ?kVuk LFky

ioj rS;kj fd;k x;k FkkA" He has further stated that "vkfVZdy &2 eksckby dk

dksbZ dkWy fMVsy ugha fy;k gSA ;g dguk lgh gS fd fcuk dkWy fMVsyl fy;s ;g

ugha crk;k tk ldrk gS fd eksckby ls vkjksih us fdlls fdlls ckr dh FkhA"

Therefore, his statement is not reliable and the findings of the trial

court are based on proper appreciation of oral and documentary

evidence.

7. Heard counsel for the parties and perused the material available

on record.

8. The court below has given a finding that in Public Gambling Act,

it is necessary to know about the place of incident. Section 4 of the Act

reads as under:

"4. Penalty for being found in gaming-house- Whoever is found in any such house, walled enclosure, room or place, playing or gaming with cards, dice, counters, money or other instruments of gaming, or is found therefore present for the purpose of gaming, whether playing for any money, wager, stake or otherwise shall be liable to a fine not exceeding one hundred rupees, or to imprisonment of either description, as defined in the Indian Penal Code (45of 1860), for any term not exceeding one month;

and any person found in any common gaming house during any gaming or playing therein shall be presumed, until the contrary be proved, to have been therefore the purposes of gaming.

9. It is clear from the statement of Shrawan Kumar Mishra - ASI

(PW-3) that he has not investigated the matter of gambling and sports

betting in cricket match. The independent witness has stated that the

police caught the respondent/accused and seized cash of

Rs. 1,84,800/- and mobile phone. He has also stated that when the

police party reached the spot i.e. near the police station in front of

Hanuman Mandir, on seeing them, the respondent/accused tried to run

away but was caught and on being asked he has stated that he was

going to extort money and on search being made, cash of Rs.

1,84,800/- was found kept with him in a bag. It is clear from the

statement of the prosecution witness that no one has seen the

respondent/accused recovering the betting amount. The defence

witness namely Rajkumar Kesarwani has stated that he gave Rs.

1,84,800/- to the respondent/accused which is the recovery

amount/payment of pulses as he is a trader of pulses. Learned trial

court also finds that the prosecution witnesses have not stated about

the manner of offence and they have only stated about the seizure of

currency notes and mobile phone. In criminal jurisprudence, the

prosecution has to prove its case beyond reasonable doubt. The

jurisprudence and defence has to show its probability of defence

therefore the learned trial court has rightly found that the prosecution

has failed to prove its case beyond reasonable doubt and the accused/

respondent succeeded to show the probability of his defence.

10. Thus, after hearing counsel for the appellant/State and

considering the material available on record as well as the judgment

impugned passed by the Court below and being very much conscious

of the existing legal position that in an appeal against acquittal if two

reasonable views/conclusions are possible on the basis of the

evidence on record, the appellate Court should not disturb the finding

of acquittal recorded by the trial Court. Law in relation to cases

against acquittal is very clear. The findings of acquittal by the appellate

Court taking the other possible view into consideration is not

permissible and further considering the scope of appeal against

acquittal, this Court is of the considered opinion that the judgment

impugned acquitting the respondent/accused of the offence under

Section 4(B) of the Public Gambling Act is just and proper and does

not call for any interference. Accordingly, the appeal being devoid of

merits is hereby dismissed.

Sd/-

(Rajani Dubey) Judge suguna