JUDGMENT : G.B. Patnaik, J. - The Petitioners have been convicted u/s 3 of the Orissa Prevention of Gambling Act, 1955 (Orissa Act 17 of 1955) (hereinafter to be referred to as 'the Act') and have been sentenced to pay a fine of Rs. 151, each, in default to undergo simple imprisonment for ten days each. 2. The prosecution case briefly stated is that on 6.10.81, while a Maheswari Jatra was going on in village Kuruan it was noticed that these accused-Petitioners were gambling by means of one Ghudughudupati. The police immediately raided the spot but the accused persons left the place leaving behind the ghudughudupati and cash worth Rs. 15/-, which was seized and ultimately on completion of investigation charge-sheet was filed against the Petitioners. 3. The plea of the Petitioners is one of denial. 4. In support of the prosecution case, six witnesses were examined, of whom P.W. 5 is the informant and he also himself investigated into the case, P.Ws. 4 and 6 are the two police officials, P.Ws. 2 and 3 are supposed to be the occurrence witnesses and P.W. 1 deposed to the effect that police seized one ghudughudupati and some cash and other articles on consideration of the prosecution evidence; the learned Magistrate came to the conclusion that playing by ghudughudupati was gambling and further it is the accused persons who were engaged in gambling on the date of occurrence and when the police raided the spot they managed to escape. Having come to the aforesaid conclusion, the learned Magistrate found that the prosecution had been able to establish its case beyond all shades of doubt and the accused persons must be held to be found guilty of the offence u/s 3 of the Act in question. 5. Mr Misra, the learned Counsel for the Petitioners assails the conviction on the ground that the prosecution evidence does not establish the offence in question and further the evidence of two alleged independent witnesses, namely, P.Ws. 2 and 3 does not inspire confidence and P.W. 4 being an accused in a criminal case wherein the present accused persons have deposed, no reliance can be placed on his testimony. According to Mr. Misra, if the evidence P.Ws. 2 and 3 does not inspire confidence and P.W. 4 being an accused in a criminal case wherein the present accused persons have deposed, no reliance can be placed on his testimony. According to Mr. Misra, if the evidence P.Ws. 2, 3 and 4 are taken out of consideration, then on the residue evidence, no conviction can be sustained Learned Additional, Standing Counsel appearing for the State, on the other hand, contends that since the Magistrate has appreciated the evidence and has come to the conclusion, the same need not be interfered with. 6. u/s 3 of the Act, if a person is found to have taken part in gambling then he is liable to be convicted Gambling has been defined in Section 2(b) of the Act to mean a play or game for money or other stake and includes betting and wagering and other act, game and contrivance by which a person intentionally exposes money or things of value the risk or hazard of loss by chance. In order to make a person guilty u/s 3 of the Act, it must, therefore, be established by the prosecution that the accused persons had indulged themselves in some play or game for money and intentionally exposed money or things of value to the risk or hazard of loss by chance. Though the prosecution evidence in this case is of a general nature to the effect that the accused persons were playing gambling by ghudughudupati, but there is absolutely on evidence to come to a conclusion that in fact the accused persons had indulged themselves in the game for money or had exposed money to the risk or to the hazard of loss by chance. In this view of the matter, it cannot be said that the prosecution has been able to establish the commission of offence of gambling, by the accused persons. That apart, the evidence of P.Ws. 2 and 3 examined would show that P.W. 2 even did not see gambling by the Ghudughudupati which had been seized by the police and accordingly the said evidence is of no assistance to the prosecution. The evident of P.W. 3, on the other hand, is based upon what police told his, since he categorically stated: I have not gone with police to the place where it was played. The evident of P.W. 3, on the other hand, is based upon what police told his, since he categorically stated: I have not gone with police to the place where it was played. The police came to the verandah of temple and told that those articles were seized. Besides that police told nothing. Basically he has been cited as a seizure witness and not an occurrence witness P.W. 4 is a police officer against whom admittedly a criminal case is pending on the allegation of setting fire to the house of one Ghanashyam. According to his evidence, the accused persons had spraded the pati and were playing gamble. But he also does not state as to whether the accused persons had played the game for money or not and/or had exposed money to the risk or hazard of 1051 by chance. P.W. 5 is the Investigating Officer. P.W. 6 is another police officer who also vaguely states that the accused persons were playing ghudughudupati but does not state about the fact of money being exposed or that the accused persons had indulged themselves in the game of gambling. This being the total prosecution evidence are in view of the fact that there were large number of people who were present yet not examined in my opinion, it would be difficult to sustain the conviction in question. After perusing the evidence on record I am of the opinion that the prosecution has failed to establish the charge against the accused persons beyond reasonable doubt and accordingly the conviction and sentence of the Petitioners cannot be sustained. 7. In the result, therefore, the conviction and sentence passed against the Petitioners are set aside and the Petitioners are acquitted of the charge levelled against them. The amount of fine if paid may be refunded to the Petitioners. This criminal revision is accordingly allowed. Final Result : Allowed