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Miyabhai Pirbhai and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 633 of 1961
Judge
Reported inAIR1963Guj188; 1963CriLJ141; (1963)GLR253
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4(1), 6, 155(3) and 162; Evidence Act, 1872 - Sections 114, 157, 159, 160 and 161
AppellantMiyabhai Pirbhai and ors.
RespondentThe State
Appellant Advocate Rajani Patel and; V.C. Thakore, Advs.
Respondent Advocate B.R. Sompura, Asstt. Govt. Pleader
DispositionRevision dismissed
Cases ReferredRameshwar v. State of Rajas
Excerpt:
criminal - gambling - sections 4 (1), 6, 155 (3) and 162 of criminal procedure code, 1898, sections 4 and 5 of bombay prevention of gambling act and sections 114, 157, 160 and 161 of evidence act, 1872 - revision application by persons convicted by magistrate under sections 4 and 5 - contentions raised that conviction based on evidence of 'panch' who turned hostile - offence under sections 4 and 5 not cognisable offence - 'panchnama' hit by section 162 inadmissible in evidence - 'panch' raided premises of accused persons - on basis of evidence of police and 'panch' - findings of court against accused cannot be interfered with - presumption under section 7 against accused. - - (d) to seize all things which are reasonably suspected to have been used or intended to be used for the.....v.b. raju, j.1. this is a criminal revision application by 26 persons, who were convicted by the 4th joint civil judge (j. d.) and judicial magistrate, first class, baroda, under sections 4 and 5 of the bombay prevention of gambling act and whose convictions were confirmed in appeal by the additional sessions judge, baroda.2. in revision, it is urged that the prosecution case rested on the evidence of a panch, who had turned hostile, a punter and the investigating police officer. it is contended that a panchnama made is inadmissible in evidence and that when the pancha has turned hostile, the conviction under sections 4 and 5 of the prevention of gambling act would rest on the evidence of the police officer and the punter, both of whom are interested witnesses. it is also contended that.....
Judgment:

V.B. Raju, J.

1. This is a criminal revision application by 26 persons, who were convicted by the 4th Joint Civil Judge (J. D.) and Judicial Magistrate, First Class, Baroda, under Sections 4 and 5 of the Bombay Prevention of Gambling Act and whose convictions were confirmed in appeal by the Additional Sessions Judge, Baroda.

2. In revision, it is urged that the prosecution case rested on the evidence of a Panch, who had turned hostile, a punter and the Investigating Police Officer. It is contended that a Panchnama made is inadmissible in evidence and that when the Pancha has turned hostile, the conviction under Sections 4 and 5 of the Prevention of Gambling Act would rest on the evidence of the Police Officer and the punter, both of whom are interested witnesses. It is also contended that the alleged finding of the instruments of gaming cannot offer corroboration be-cause the alleged finding is sought to be proved by the evidence of the interested witnesses. It is contended that the corroboration by the finding of the instruments of earning must be of an independent type and that the evidence of the Police investigating Officer and the ounter regarding the actual gambling cannot be corroborated by their evidice that the instruments of the gaming were found. While contending that a Panchnama in a gambling case is not admissible in evidence, it is contended that the gambling case is a cognisable case and thai the Panchnama would therefore be hit by Section 162 of the Criminal Procedure Code.

3. The question whether an offence under Sections 4 and 5 of the Prevention of Gambling Act is a cognisable offence or not has been canvassed at length. 'Cognisable offence' is defined in Section 4 (f) of Cr. P. C. as follows:

' 'Cognisable offence' means an offence for, and 'cognisable ease' means a case in which a police officer, within or without the Presidency-Towns, may, in accordance with the second schedule or under any law for the time being in force, arrest without warrant.'

The Second Schedule deals with offences against other laws other than the Indian Penal Cods, punishable with death or imprisonment tor life or imprisonment for seven years or upwards, in which police may arrest without warrant. Under Sections 4 and 5 of the Prevention oi Gambling Act, the punishment which can be imposed is only six months. therefore the offences under Section 4 and 5 of the Gambling Act need not be cognisable offences under the Second Scnedule to the Code of Criminal Procedure. But it is contended that in view of Section 6 of the Gambling Act, the gambling ease is- a case in which a police officer may arrest without warrant. Section 6 of the Prevention of Gambling Act provides, as follows:

'It shall be lawful for a Police officer

(i) in Greater Bombay not below the rank of a Sergeant or Sub-inspector and either empowered by general order in writing or authorised in each case by special warrant issued by the Commissioner of Police, and

(ii) elsewhere not below the rank of a Sub-Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub-Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a District Superintendent of Police or by an Assistant or Deputy Superintendent of Police specially empowered by the State Government in this behalf,-

(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room, or place which he has reason to suspect is used as a common gaming house.

(b) to search all parts of the house, room or place which he shall have so entered, when he shall have reason to suspect that any instruments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not.

(c) to take into custody and bring before a Magistrate all such persons;

(d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein :

Provided that no officer shall be authorised by special warrant unless the Commissioner of Police, the Magistrate, the District or Assistant or Deputy Superintendent of Police concerned is satisfied, upon any complaint made before him on oath and upon making such inquiry as he may think necessary, that there are good grounds to suspect the said house, room or place to be used as a common gaming house.'

When 'cognisable offence' and 'cognisable case' are defined in Section 4 (f), Cr. P. C., it must be proved that the offence is an offence or the case is a case, in which a police officer may arrest without warrant. Section 6 of the Prevention of Gambling Act provides that if certain requirements are satisfied a police officer of the type mentioned therein may arrest without warrant. The powers and rights of the authorities to arrest without a warrant are thus subject to certain requirements and other qualifications of Section 6 of the Prevention of Gambling Act. First of all there must he a general order in writing or a special warrant issued by an officer referred to in Section 6. It is only when these requirements are satisfied that a police officer to whom a general order in writing has been issued or a special warrant has been issued may arrest without a warrant, This would not come within Section 4 (f) of Cr. P. Code for two reasons; (1) It does not enable any police officer to arrest without a warrant but only enables the police officer particularised in that section to arrest without a warrant; and (2) it does not authorise a police officer to arrest without a warrant unless certain requirements are satisfied. There must be a general order in writing or a special warrant issued as the case may be. There is a further requirement as contained in the proviso to Section 6, namely a special warrant cannot be issued unless the officer stated therein is satisfied upon any complaint made before him on oath and upon making such inquiry as he may think necessary that there are good grounds to suspect the said house, room or place to be used as a common gaming house. It is, therefore, clear from the provisions of Section 4 (1) (f), Cr. P. C., and the provisions of the Prevention of Gambling Act that an offence under Sections 4 and 5 of the Prevention of Gambling Act or a gambling case being investigated under Section 6 of the Prevention of Gambling Act would not be a cognisable offence.

4. But the learned counsel for the applicants relies on Emperor v. Ismail Hirji, AIR 1930 Bom 49, where it was held as follows:

'The words a police officer may arrest' in Section 4 (1) (f) do not mean every or any police officer, and provided that a superior police officer has power to arrest without a warrant, the offence is a cognisable offence.'

Under Section 6 of the Prevention of Gambling Act, even a Commissioner of Police cannot arrest a person unless after entering the house and searching it, he finds the person in the house. Even if a complaint is made to the Commissioner of Police that a particular house is used as a common gaming house and that a person is gambling in that common gaming house, he cannot arrest him under the provisions of Section 6 of the Prevention of Gambling Act, unless the Commissioner of Police himself goes and searches that house and finds that person in the house. In Emperor v. Abasbhai : AIR1926Bom195 , Marten J., observed as follows at pp. 350 and 351 (of Bom LR) : (at p. 197 of AIR):

'The prosecution, however, contend that in any event this is a cognizable case because it is one in which the police might arrest without warrant within the meaning of Section 4 (1), Sub-section (f), of the Criminal Procedure Code. It is argued that the words 'a police officer may arrest' do not mean every or any police officer, and that provided one finds that by law a superior police officer may arrest without a warrant then the offence is a cognizable offence. It is further pointed out that the words in the definition are 'may arrest' and not 'does arrest' and that consequently the lest is not whether in fact the arrest is effected, but whether it may be effected. In other words the actual fact of arrest is irrelevant to the consideration whether a particular offence is a cognisable offence.

It Is pointed out that under Section 6 of the Gambling Act, the Commissioner of Police and certain other persons have power to issue special warrants of search and also of arrest, and that consequently what they may authorise by special warrant they may do personally. It is said, therefore, that this class of offence is one where the police may arrest without a warrant, because the superior officer himself, such as the Commissioner of Police, may do so without a warrant. We have considered this argument and in our opinion it is well founded. It is directly supported by a decision of the Calcutta High Court in Queen-Empress v. Deodhar Singh, ILR 27 Cal 144 at p. 150, which was a gambling case where it became material to consider whether the offence was a non-cognisable one.'

In Raghunath v. Emperor, 34 Bom LR 901 : (AIR 1932 Bom 610), reference was made to the decision of a Division Bench in 31 Bom L R 1349 : AIR 1930 Bom 49, and with reference to this case, it was observed is follows by Sir John Beaumont, C. J. at pp 906 and 907 of Bom LR) : (at p. 611 of AIR):

'31 Bom LR 1349 : AIR 1930 Bom 49. The head-note in that case 'Held (1) that the offence punishable under Section 4 of the Bombay Prevention of Gambling Act 1887 as modified upto date, was a cognisable offence in all eases, and that the Commissioner of Police could therefore arrest without a warrant.'

In my view that statement in the headnote is not justified by the actual decision. It Is quite true that the first question submitted to the High Court by the Magistrate was whether offences punishable under Section 4 of the Bombay Prevention cf Gambling Act (Bombay IV of 1887) as modified up to date, are cognisable offences in all cases? Mr. Justice Patkar who gave the first judgment does not appear in terms tc have answered that question, but his reasoning suggests what he thinks the answer should be.

5. Even if the Commissioner of Police can arrest a person without a warrant in view of the provisions of Section 6 of the Prevention of Gambling Act, in my opinion for the reasons already given, an offence under Sections 4 and 5 of the Prevention of Gambling Act is not a cognisable offence and a cognisable case which is being investigated under Section 6 of the Gambling Act is not a cognisable offence as defined In Section 4 (I) (f) of the Cr. P. C.

6. It is then contended that if an offence under Sections 4 and 5 of the Gambling Act, which was investigated under Section 6 of the said Act is not a cognisable offence or a cognisable case, then a Panchnama made in the investigated case would not be hit by Section 162 of the Cri. Pro. Code. But the learned counsel for the applicants contends that even it the ease is a non-cosnisable case, the Panchnama made in the investigated case would be hit by Section 162 of the Cr. P. C. Section 162 of the Cri. Pro. Code, which is in Chapter XIV of the Criminal Procedure Code, so far as is relevant, reads as follows;

'No statement made by any person to a police-officer In the course cf an Investigation under this Chapter shall, if reduced into writing, be signed by the person making It; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.'

Chapter XIV is headed 'Information to the police and their powers to investigate'. Section 154, Cri. Pro. Code deals, with information in cognisable cases. Section 155 (1), Cr. P. Code deals with information in non-cognisable cases. Section 155 (2), Cr. P. Code deals with investigation into non-cognisable cases. Section 156 (1) deals with investigation into cognisable cases, chapter XIV of the Code of Criminal Procedure deals with investigation both in cognisable cases and non-cognisable cases, and the heading of the Chapter shows the powers of police to investigate-both cognisable and non-cognisable cases. Section 155, Criminal Procedure Code, reads as fellows:

'(1) When information is given to an officer in charge of a police-station of the commission within the limits cf such station of a non-cognisable offence, he shall enter in a book to be Kept as aforesaid the substance cf such information and refer the informant to the Magistrate.

(2) Ho police officer shall investigate a non-cognisable, case without the order of a Magistrate of the first or second class, having power to try such case or commit the same for trial, or of a Presidency Magistrate.

(3) Any police-officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police-station may exercise in a cognisable case.' When a police officer investigates a non-cognisable case, he may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognisable case. Section 156, Cr. P. Code deals with investigation into cognisable cases, and Section 157, Cr. P. Code provides as under:

'(1) If, from information received or otherwise, an officer in charge of a police station has reason !o suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognisance of such offence upon a police report, and shall proceed in person, or shati depute one of his subordinate officers, not being below such rank as the State Government may, by general or special order, prescribe in this belialf to-proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.

X X X X X.'

As soon as the information is received or as soon as the officer in charge of a police station has reason to suspect the commission of an offence, the officer in charge-of the police station has to proceed to the spot to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. The moment the police officer proceeds to the spot to investigate the facts and circumstances of the case, the investigation begins, and whatever the police officer does after he receives information or after he has reason to suspect the commission of an offence, is investigation. This rule, in terms, applies to cognisable offences, and by reason of Section 155 (3), Criminal Procedure Code, it applies to non-cognisable cases also. Therefore, If an officer in charge of a police station has reason to suspect the commission of a non-cognisable offence and if he Is authorised to investigate such an offence, whatever he does in that case after getting Information or ever he does in that case after getting information or after having reason to suspect, would be investigation.

7. Section 160, Criminal Procedure Code provides as tinder:

'Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case; and such person shall attend as so required.'

This power can be exercised by a police officer when he is investigating a cognisable case and also when he is investigating a non-cognisable case. The same remark applies to other cases in Chapter XIV and Section 151, Cr. P. Code, It is, therefore, clear that Section 162, Criminal Procedure Code, which refers to a statement made by a person to a police officer in the course of the investigation under this Chapter, viz., Chapter XIV, would apply to a statement made by any person to a police officer in the bourse of the investigation under Chapter XIV into a non-cognisable offence. Section 5, Cr. P. Code, reads as follows :

'(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.'

8. It is, therefore, clear that when a police officer to whom a general order in writing or a special warrant has been issued, the police officer applies the provisions of Section 6 of the Prevention of Gambling Act while he is investigating a case under Chapter XIV, Criminal Procedure Code, and that Section 162, Criminal Procedure Code, is applicable in such a case.

9. It is, however, contended by the learned Govern-ment Pleader that a panchnama is only a record of what a witness sees or hears and that it is not a statement. In Naginlal Nandlal v. State of Gujarat, (1961) 2 Guj LR 664 at p. 672, the exact nature of a panchnama has been considered. A Panch may see certain things and may himself reduce into writing what he has seen. The writing in such cases is called a Panchnama. A Panchnama may be a statement for the purpose of Section 157 of the Evidence Act. It may be a note. If it is a note, it can be used to refresh the memory of the Panch under Sections 159, 160 and 161 of the Evidence Act, but it would not be a Statement made to a police officer in the course of the Investigation because the Panch himself has reduced it into writing. Such a statement would not be hit by Section 162, Cf. P. C. Again a Panch may hear certain statement made to him and may himself reduce into writing what he himself had been told. In such a case the writing of the Panchnama would be a statement made by a person to the Panch witness. In other words, a Panchnama would be a record of a statement made by a person to the Panch, but the Panchnama itself would not be a statement made by the Panch to a police officer in the course of Investigation, because the Panchnama was reduc-ed into writing by the Panch himself and not by the police officer. In either of these cases, a Panchnama would not be hit by Section 162, Cr. P. Code, because a panchnama having been reduced into writing by the Panch himself is not a statement made to a police officer. But if a panel sees something and tells a police officer what he had seen and the police officer then reduces into writing what the Panch had told him of what he had seen, then the panchnama would be a record made by the police officer of a statement made to him by the Panch of what the Panch had seen, and, therefore, would be hit by Section 162, Cr. P. Code. Again if a Panch hears certain things or certain statements and tells a police officer what he had heard and the police officer then reduces into writing what the Panch had told him as to what the Panch had heard, then the Panchnama would be a record made by the police officer of a statement made to him by the Panch of what the Panch had heard, and, therefore, would be hit by Section 162, Cr. P. C.

10. Each case would depend on its own facts. Whether a Panchnama is one of the four above types would depend on the facts of each case, if a Panchnama is of 3rd or 4th type, it would be hit by Section 162, Cr. P. C. But if it is of first two types, then it would not be hit by Section 162, Cr. P. Code. There may be two other types of a Panchnama, A Panch may tell a person who is not a police officer of what he had seen or heard and the person who is not a police officer would reduce into writing what the Panch told him. This can also happen in the presence of a police officer investigating the case. If the police officer investigating the case is not the person before whom a statement is made, the statement would not be hit by Section 162, Cr. P. Code. But if the statement is made to a person who is not a police officer but in the presence of a police investigating officer, then it must be treated as having been made to him, and such a Panchnama must also be treated under Section 162, Cr. P. Code, otherwise, it would be easy for police officers to circumvent Section 162, Cr. P. Code and always say that the Panchnama is a statement made to someone else in their presence. A police officer may himself see or hear certain things and himself reduce into writing what he himself had seen rr heard. In that case, it may be a statement of the police officer for the purpose of Section 157, Evidence Act. If a police officer records what he had heard, it would be hit by Section 162, Cr. P. Code. But if the police officer reduces into writing what he himself had seen, it would not be hit by Section 162, Cr. P. Code. Therefore each case depends upon the facts of a particular case, and whether the Panchnama falls within one of the 8 types is a Question of fact.

11. In the instant case, the Panchnama is signed by two Panchas and also by the police investigating officer. The Panch Mahendra has deposed as under:

'Then, I, the other panch Venibhai Saheb and Mahajan Saheb and other police officers went up. There was none on the first floor. When we were going to the second floor Narendra was seen on the last step of the staircase leading to the second floor. When we reached the second floor, all on that floor were seen standing. Venibhai Saheb asked them to sit down. They sat down on tables and chairs. Some of them were taking their meals sitting on the ground. AM of them were searched one after another. Venibhai Saheb was dictating what was happening.'

He has also deposed that Venibhai Saheb was describing the things so found and Mahajan Saheb was making notes of them. Deputy Superintendent of Police Venibhai has deposed as follows :

'The whole room was searched, Panchas' signatures were taken on all papers that were found from the room. The Panchnama in all the details was drawn up ......

It is not true that the whole Panchnama was prepared in the police station after the raid. He has not made notes of things attached from each of the accused. It is not true that lists of articles were not given to the accused. I have not taken tneir signatures in token of their having received these lists. It is not true that I had not the warrant with me when I went for the raid and therefore I had not taken signatures of the accused on it. Without referring to the panchnams, I cannot say in whose handwriting it is written. It is not true that some of the accused were taking thsir meals and some of them were making preparations lor the Pavagadh trip.'

The Panchnama also contains the following recital:

mijuks iapD;kl veks iapksus okaph crkO;ks Ns-

rs vekjk y[kkO;k eqtc cjkcj vus [kjks Ns-

The Panchnama Is signed by both the Panchas and the P. S. 1. has signed it as 'before me'. It is, therefore, clear that the P. S. I. was also present when the Panchnama was made and was read over to the Panchas and that the Panchnama contained the statement what the Panchas had told the person who wrote the Panchnama. In such a case, therefore, it is clear that the Panchnama is hit by Section 162, Cri, Pro. Code and is inadmissible in evidence.

12. On the question whether a corroboration is neces-sary and whether a conviction can be based entirely on the evidence of a police officer and a punter, it is eon-tended by the learned counsel for the applicants that the evidence of the police investigating officer and that or the punter is not sufficient without corroboration. It is also contended that the finding of the instruments of gaming and the finding of marked currency notes would not be corroboration, if these facts are relied on the evidence of the police officer and the punter and if they are not proved by independent and reliable witnesses. Several cases have been cited before me, and it is aisc stated by him that there is no case of the Supreme Court on this point.

13. The first case cited by him is that of Hari Lal Gordhan v. Emperor, 39 Bom LR 613 : (AIR 1937 Bom 385), and Sir John Beaumont, C. I. observed at p. 615 (of Bom LR) : (at p. 336 of AIR) as under:

'A charge of gambling like any other criminal charge must be proved by the prosecution by proper evidence, and one cannot fail to note that a false charge of gaming is one very easy to frame. I have said in a great many of these cases that the police agents are not only accomplices but are also unreliable witnesses because they are generally paid by results. It is always in -heir interest to secur a conviction in the hope of getting a part of the fine which may be imposed. The evidence of a police agent in these cases must always be correborated before it can be acted upon. I do not think that the case is improved by providing the police agent with a companion and calling him a pancb as was done in this case. The finding of the marked currency note is not by itself suffi. cient to justify the convictions.'

14. Section 11 of the Prevention of Gambling Act provides that a portion of fine imposed on persons convicted in gambling cases can be given to an informant and to a person, not being a police officer, who may have given assistance in the detection or investigation of the offence. The judgment in 39 Bom LR 613 : (AIR 1937 Bom 385) is a judgment of a Division Bench consisting of Beaumont C. J. and Wadia, J. The learned counsel for the applicants has also relied on Hormazdyar Ardeshir v. Emperor, 50 Bom LR 163 : (AIR 1948 Bom 250) which is a judgment of a Division Bench. It was observed therein at p. 167 (of Bom LR) : (at p. 252 of AIR) as follows :

'It would seem therefore, that however good an individual bogus punter may be, his evidence would need a certain amount of corroboration before it can be accepted, Obviously the evidence of one bogus punter cannot ordinarily be used to corroborate the evidence of another, nor as I have already shown, can the finding of marked coins normally be regarded as corroboration of the bogus punter's evidence. In the present case, besides the marked cur rency notes certain documents were seized, but as their contents could not be deciphered, they can hardly be used to corroborate the evidence of the bogus punters.'

15. The learned Assistant Government Pieader has also drawn my attention to 1961-2 Guj LR 664 at p. 675. That was a case under the Prevention of Corruption Act and need not therefore be referred to. But I will like to take this occasion to point out that the observations made by me in that case now appear to me to be erroneous. In the argument advanced in that case, the judgment of Beaumont C. J. in Russtam Cursetji v. Emperor, 34 Bom LR 267 : (AIR 1932 Bom 181) was referred to. That was a case of a search under the provisions of the Gambling Act, and I have observed therein that a panchanama made in the course of the police investigation in a gambling tase would not be hit by Section 162, Cr. P. C. These observations are clearly obiter, because that case related to the' case of the Prevention of Corruption Act and for the reasons already given, I feel that the observations made by me-are not correct.

16. The learned Assistant Government Pleader has cited an unreported judgment of the Gujarat High Court in Valibhai Omarji v. State, Criminal Appeal No. : AIR1963Guj145 . That was a case under Section 161, I. P. Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, and it need not therefore be referred to.

17. The learned counsel for the applicants has also relied on certified copies of two unreported judgments of the Bombay High Court, one in Criminal Appeal No. 170 of 1950 (Bom) and the other in Cri. Revn. Appin. No. 78 of 1950 (Bom). In Cri. Revn. Appln. No. 78 of 1950 (Bom), which was decided by His Lordship Gajandragadkar, J., and Vyas, J., His Lordship Gajendragadkar, J., observed as follows :-

'In the matter of such raids the safety of the persons against whom proceedings are started lies in the making of the panchanama. It has been held ever and over again that unless the panchanama and the panch support the prosecution case, the evidence of the punter and the evidence of the investigating officer would not be enough fo justify the conviction under the Gambling Act. If, therefore, we find that the panchanama itself is made by a panch who is not better than a police agent, the safety given to the accused virtually disappesrs.'

in the second case of these two cases, viz., Cri. Appeal No. 170 of 1950 (Bom), Chainani, J., as he then was, ob-served as follows.-

'It has been held by this Court that the evidence of the investigating police officer and the bogus punter in gambling cases in regard to the articles found at the search should not be accepted, unless it is corroborated by some independent evidence.'

The learned Asst, Government Pleader relies on State v. Jayantlal Govindas : AIR1953Bom82 , where it has been observed as follows (at p. 792 of Bom LR) : (at p. 83 of AIR):

'A decision of the division bench of this Court in State v. Shivaji Vaganji, Cri. Ref. No. 93 of 1950 (Bom), decided by Bavdekar and Dixit, JJ., on November, 23, 1950 IDnrep) in which Dixit J. made the following observations:

'Sir John Beaumont in 39 Bom LR 613 ; (AIR 1937 Born 385) took the view that the punter's evidence cannot be corroborated merely by the finding of a marked coin upon the person of the accused. That principle has been modified in a subsequent decision of this Court in 50 Bom LR 163 : (AIR 1948 Bom 250). Now, in cases relating io gambling no hard and fast rule can be laid down as regards the nature of the corroboration required in order to accept the story of the punter; each case must depend upon its own facts.'

'Now there is no doubt that the above mentioned observations in 39 Bom LR 613 : (AIR 1937 Bom 385) were modified by this Court in its decision in 50 Bom LR 163 : (AIR 1948 Bombay 250), in which it was pointed out that for drawing a presumption under Section 7 of the Bombay Prevention of Gambling Act it was not necessary that the things seized must oe proved to be instruments of gaming. It was pointed out that it would be sufficient if there were reasonable grounds, in the particular circumstances of each case, for suspecting that the things seized were instruments of gaming. To that extent, clearly, therefore, the observations which were made by the learned Chief Justice in 39 Bom LR 613: (AIR 1937 Bom 385) were modified in the later decision of this Court. It is to be noted, however, that both the abovementioned were eases of convictions under Section 5 of the Bombay Prevention of Gambling Act in which a question definitely arose whether a presumption should or should not be drawn under Section 7 of the Act.'

It was observed above that the decision of a division bench of the Bombay High Court in 39 Bom LR 613 : (AIR 1937 Bom 385) was modified by another Division Bench of the Bombay High Court in 50 Bom LR 163 : (AIR 1948 Bom 250). That was how His Lordship Dixit J., and His Lordship Vyas J, observed.

18. The learned Assistant Government Pleader has also drawn my attention to Chunilal Chhaganlal v. State, 1981-2 Guj LR 431 : (AIR 19S1 Guj 127). But in that case there was no discussion on the question whether corroboration was necessary or not and what was observed was merely that if Panchas are not obligatory, ordinary principles of appreciation of evidence should apply. Therefore, it is not necessary to refer to this case any further.

19. Reference Is also made to the case of Vadivelu Thevar v. State of Madras : 1957CriLJ1000 where the evidence consisted of a single witness, and His Lordship the Chief Justice of the Supreme Court has observed as follows at p. 991 (of SCR) : (at p. 618 of AIR) :

'It is not necessary specifically to notice the other decisions of the different High Courts in India in which the Court insisted on corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases. On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts Should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corporation of the testimony of a single wit-ness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid It down that 'no particular number of wilnesses shall in any case be required for the proof of any fact.'

A punter is not In the same position as that of an accomplice. He is certainly entitled to greater credit and his evidence is entitled to greater value, and according to Section 133 of the Evidence Act, an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. At the same time, in the case of the evidence of an accomplice, it has been held by the Supreme Court that the evidence of an accomplice must be corroborated by independent evidence at least in one material particular. Their Lordships of the Supreme Court have observed In Ramanlal v. State of Bombay, AIR 1960 SC 961 at p. 963, as follows:

'Even if it was a case where it was necessary to have corroborative evidence, that is supplied by the testimony of Mohanbhai Shankarbhai and Rambhai Dahyabhai and as was pointed out by this Court in Rameshwar v. State of Rajas-than : 1952CriLJ547 that it is not necessary that there should be independent corroboration of every material circumstance. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplices or the com. plainant is true and that it is reasonably safe to act upon it and the ccrroboration need not be direct evidence. It Is sufficient if It Is merely circumstantial evidence of the connection of the accused with the crime. In Rameshwar's case : 1952CriLJ547 (supra), the previous statement of the complainant was held to be evidence within the limits of Section 157 of the Evidence Act.'

The case before their Lordships was one of bribery under Section 161, Indian Penal Code.

20. The principles applicable to cases under that Gambling Act would not be applicable to cases relating to the evidence of accomplice. Even in the case of an accomplice's evidence, corroboraticn is not necessary in law, but in practice is necessary at least in one material particular. There is presumption under Section 114, Illustration (b) that an accomplice is unworthy of credit, unless he is cor roborated in material particulars. The same rule would apply to every witness, who Is unworthy of credit. It is true that general proposition can be laid down that the evidence of police officers is unworthy of credit. In the ease of a police constable, he may give evidence as a witness. But a police officer gives evidence as an investigating Officer and also as a witness, and the danger ot conviction is great because it is quite likely that innocent persons may suffer. For the same reasons, the evidence of a punter, who is interested in securing a conviction, is unworthy of credit, and there Is no reason why the princi ples applicable to one type of witness who is unworthy of credit, viz., an accomplice, should not apply to another type of witness who is unworthy of credit for different reasons. But as to the extent of corroborating it is not necessary that there should be independent corroboration in all mate-rial particulars.

21. In the instant case, the prosecution case rests upon the police investigating officer, the punter and the Panch, who has been treated as hostile. No doubt the police investigating officer and the punter support the pro-secution case in its entirety. The punter deposes as follows:

'I went to that club at about 12-15 p.m. As there was no accommodation for me on any table, I waited there and watched the games. On three tables 'rummy' was being played with counters and cards. Accused No. 23 Hasam-bhai was sitting on one chair. Accused No. 1 Miyabhai was sitting on one small charpai.'

The witness has also deposed that there were 5 persons at each of the three tables. The witness purchased counters for money from accused No. 23, who noted down the time and 'Nal'. Accused No. 1 took Rs. 4/- as 'Nal' for every one hour. All the accused stood up, when the police came and raided the place. The persons present were searched. Money, cards, counters, papers on which the Nal was noted down were attached. To the same effect is the evidence of the police investigating officer.

22. If we turn to the evidence of Panch, he admits that a raid was made at about 1-30 P.M. He admits that when the raid was made, the persons in the house were standing. Some of them were taking their meals and there were playing cards on 2 or 3 tables. He denied that any counters in the building were raided. He denied that the persons were gambling. He admits that all the persons found in the room had been searched, He also admits that all the accused were found in the room. In view of the evidence of the police officer and the punter and the fact that the Panch who has tried to support the prosecution has himself deposed that playing cards were found and several persons were standing, there is no reason to interfere in revision with the finding of the Courts below that playing cards were found and that they were the instruments of gaming. In view of this finding, presumption under Section 7 of the Bombay Prevention of Gambling Act would arise against the applicants.

23. It Is, however, contended by the learned counsel for the applicants that the evidence of the Panch should be excluded from consideration, as he has turned hostite. The whole evidence of the Panch cannot be excluded from consideration. The evidence of that witness will have to be appreciated according to the normal rules of appreciation of evidence having regard to the fact that the prosecu-tion itself has cross-examined that witness.

24. The learned counsel for the applicants does not contend that the case of individual applicant should be considered.

25. Revision Application No. 633 of 1961 is dismissed.


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