Lort-Williams, J.
1. This is an appeal by the Remembrancer of Legal Affairs, Bengal, on behalf of the Government of Assam, against a decision of the Extra Assistant Commissioner of Dibrugarh, acquitting the respondents of an offence under Section 13, Public Gambling Act (Act III of 1867). It appears that on some carnival ground in Dibrugarh, a kind of game was played which, the prosecution alleged, was a gambling game. There were employed in the game an ordinary dart board with numbers upon it, another board with corresponding numbers in rows, and a table with corresponding numbers upon it. It was alleged that people bought tickets, which they placed upon one or other of the numbers upon the table. Then one of them was given a dart or darts which he aimed at the dart board and, according as the darts hit particular numbers on the dart board which corresponded with the same numbers on the table, the person who had placed tickets on the table won or lost, that is to say, the winners received some payment from the person who was the owner and organiser of the game and the implements used for carrying it on. The evidence shows that such a game was carried on in this carnival grounds, and that the respondent Renny was either the owner of the implements or the organiser of the game, and that the other two respondents in some way or other, assisted him in carrying it on. All this evidence is rather vague and insufficient in its present form. Before the prosecution can succeed inf proving the case alleged they must bring home clearly to the three accused persons, that they were responsible for carrying, on the game and, therefore, were gambling at the time when this offence is alleged to have been committed. There is also evidence to show that certain persons bought tickets and placed them on the table, and that one or other of them threw a dart. There is no evidence to show that any of these persons won anything on this occasion. But there is a suggestion that, according to the rules, if a dart had hit some particular number or numbers, then the persons who paid for the tickets and placed them on the table would have received money, that is to say, would have won their bets.
2. The evidence leads me to think that the police stepped in too soon and before they had obtained sufficient evidence to prove the case against these three accused persons. But Mr. Khundkar has suggested that the note of the evidence, which we have, may not be complete. The case was tried summarily and consequently the Magistrate may not have taken down every word that was given in evidence. He has, however, recorded a fairly full note. Thus, Mr. Khundkar suggests, and has supported his suggestion by an affidavit sworn by a Sub-Inspector of Police, that witness 4 Shamsul Huda deposed that Suren and Renny used to give prizes to the winners including himself. Whether that ought to be considered to be sufficient evidence to prove that the backers, so to speak, had a chance of winning money, will have to be decided hereafter. The learned Commissioner seems to have misdirected himself in law, and has acquitted the accused, not because the evidence was defective, but upon the ground that what was described by the Inspector did not amount to gambling within the meaning of Section 13, Act III of 1867. I think that he was misled by certain decisions of this Court upon the question whether the dart game is a gambling game or a game of skill. It was decided in the case of Saligram Khettry v. Emperor 1933 Cal 8 that the dart game is not a gambling game because it is a game in which there is a considerable element of skill. But that decision was not altogether relevant upon the question which had to be decided in this case. The accused were not charged with gambling by playing the dart game, but with gambling by side betting upon the result of throwing the darts in the manner described by the' witnesses, coupled with other elements in the game arising from the employment of the second board and the table upon which the tickets were placed. The fact that the dart game it-self cannot be said to be a gambling game, does not in any substantial way affect the question whether what these people are alleged to have been doing amounted to gambling or not. It seems, therefore, that the learned Commissioner was misled by the decision to which I have referred, and did not apply his mind to the different facts of the present case, and the different way in which it is alleged that the respondents committed an offence under the Public Gambling Act. The case therefore must go back to be retried, and the order of dismissal must be set aside. The prosecution must appreciate what are the essential facts which must be proved bearing in mind the points to which I have drawn attention. The accused, who are on bail, will remain upon the same bail.
Jack, J.
3. I agree.