Bai Chaturi and Others vs States

Raju, J.

(1) Before we deal with the evidence, it would be desirable to state what the prosecution has to prove in a charge under S. 401, I.P.C., which

reads as under:

Whoever, at any time after the passing of this Act, shall'' belong to any wandering or other gang of persons associated for the purpose of

habitually committing theft or robbery, and not being a gang of Thugs or dacoits, shall be punished with rigorous imprisonment for a term which

may extend to seven years, and shall also be liable to fine.

As the section clearly mentions, the prosecution has to proves that the accused persons charged under S. 401 belongs to a gang of persons and

that the gang of persons is associated for the purpose of habitually committing theft or robbery. The word ''belong'' implies something more than

casual association; it involves the notion of continuity and requires the proof of a more or less intimate connection with a body of persons extending

over a period of time sufficiently long to warrant the inference that the person affected had identified himself with the gang the common purpose of

which was the habitual commission of either theft or robbery. It would therefore not be sufficient for the prosecution merely to rely upon the fact

that an accused person had associated himself with the gang in the commission of only one offense. The prosecution must also prove that the

members of the gang were associated for the purposed of habitually committing theft or robbery. It is not necessary for the prosecution to prove

the actual commission of any offence of theft or robbery. If the prosecution is able to prove that the common purpose, for which the members of

the gang were associated, was to habitually commit the offence of theft or robbery, then the prosecution would succeed even though it does not

lead evidence to prove the actual commission of an offense of theft or robbery. But the purpose for which the members of the gang were

associated is usually not a matter of direct proof by direct evidence and is generally a matter of inference from the facts and circumstances proved

and acts done by the accused. Usually if the prosecution proves that the members of the prosecution proves that the members of the gang were

associated in the commission of several offenses of thefts or robbery, an inference may well be drawn that the purpose of the gang was to

habitually commit offences of theft or robbery. It is also not necessary that the members of the gang should be members right from the beginning.

An accused person may join a gang had been formed. But if it is proved that a person subsequently joined and belonged to a gang of persons

associated for the purposes of habitually committing theft or robbery he would be guilty under S. 401, I.P.C., although he may not have been a

member of the gang from the of the members must be for the purpose of habitually committing offences of theft or robbery. The evidence of the

prosecution that a person was associated with the gang for the purpose of committing other offences, for instance, offence of demanding or taking

ransom or of being in possession of stolen property would not be sufficient to justify his conviction under S. 401, I.P.C.

(2) Evidence of general bad repute in a type of evidence of general bad character. It is provided in S. 54 of the Evidence Act that in criminal

proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character in

which case it becomes relevant. Exception 1 to S. 54 provides that this section does not apply to cases in which the bad character of any person is

itself a fact in issue. Exception 2 to S.54 provides that a previous conviction is relevant as evidence of bad character. It is, therefore, clear that

evidence of bad character is relevant only when evidence has been given of good character of the accused and in cases where the bad character of

the accused is itself a fact in bad character of the accused is itself a fact in issue. In Mankura Pasi v. Queen Empress ILR 27 Cal 139, it is held

relying on Queen v. Kamal Fukeer 17 SWR Cr. 50, that the character of the accused not being a fact in issue in the offence of belonging to a gang

of persons associated for the purpose of habitually committing theft punishable under S. 401 of the I.P.C., evidence of bad character or reputation

of the accused was inadmissible for the purpose of proving the commission of that offence. But, in Bonai v. Emperor ILR 38 Cal 408, it has been

observed that in cases where the other evidence has established association for the purpose of habitually committing theft, evidence of previous

convictions whether for offences against property or for bad livelihood, has always been admitted, not as evidence of character, but as evidence of

habit. It was also observed that:

Such evidence must of course be weighed. A single instance of theft, for instance, would count for little or nothing. There must be at least two or

more cases against the same individual to show habit.

It was also observed that to hold that the evidence of such previous convictions was inadmissible is clearly against the weight of authority in the

Calcutta High Court. But even in ILR 68 Cal 408 the question which was considered was whether evidence of previous convictions was

admissible and it was held that the evidence of previous convictions was admissible in an offence under S. 401 of the I.P.C. not as evidence of

character but as evidence of habit. Impliedly, therefore, even in this case it was held that in the case under S. 401, missile; but it was held that

because in a case under S. 401 I.P.C., habit has to be proved, previous convictions may be admissible to prove habit of committing offences of

theft. The case reported in ILR 38 Cal 408, was referred to in Emperor v. Tukaram Malhari 14 Bom LR 373 , and the same view was taken in

Moti Ram Hari Vs. Emperor, The evidence of Ramanbhai Devjibhai is not evidence of previous convictions for theft but of general reputation or of

general bad character of the accused referred to by the witness, and is therefore inadmissible in evidence. The decision of the Calcutta High Court

(ILR 38 Cal 408) was partly commented on in 14 Bom LR 373, and particularly the following passages in the Calcutta decision:

In cases where the other evidence has established association for purposes of habitually committing theft, evidence of previous convictions,

whether for offences against property or for bad livelihood, has always been admitted, not as evidence of character, but as evidence of habit.

The learned Judges of the Bombay High Court observed that for the purpose of the appeal before them it was not necessary that they should go a

step further than the Calcutta High Court went in ILR 38 Cal 408. Their Lordships were however of the view that it was not necessary for the

admission of evidence of previous convictions that the prosecution should have first affirmatively established the association for the purpose of

habitually committing theft. Their Lordships of the Bombay High Court were also of the view that where the question is, as it is under S. 401,

I.P.C., whether a party of accused persons constitute a gang of persons associated for the purpose of habitual theft, evidence that each individual

of that party is a convicted thief is relevant evidence for the purposes of that question; and weather that evidence is tendered before or after the

prosecution have established the association is a matter of no particular moment. With respect, we agree that if certain type of evidence is relevant,

ordinarily it does not matter whether such evidence is relevant, ordinarily it does not matter whether such evidence is tendered before or after other

admissible evidence, but at the same time, evidence of previous convictions being evidence of bad character is admissible under S.54 of the

Evidence Act only when bad character of the accused is act in issue or when evidence has been given of good character. Under S. 401. I.P.S.,

bad character of the accused is not a fact in issue. In view of S. 54 of Evidence Act, in cases where evidence of good character has not been

given, evidence cannot be given of bad character when bad character is merely a relevant fact and not a fact in issue. Of course to prove the

purpose of association of the gang or habit of committing thefts, evidence can be given of commission of other thefts. In such cases under

Explanation 2 to S. 54 of Evidence Act, evidence can be given of previous convictions for theft.

(3) In some cases, the view was taken that in a prosecution under S. 400 or 401, I.P.C., the bad character of the accused is a fact in issue. Bhima

Shaw and Others Vs. The State, , and the cases cited there. With great respect even in cases under S. 400 or 401, I.P.C., the general bad

character of the accused is not a fact in issue but only a particular trait of bad character namely association with others for the purpose of habitually

committing offences of dacoity or robbery or theft. The effect of Explanation 1 to S. 54, Evidence Act, the absence of Explanation to S. 54,

Evidence Act, evidence of bad character of an accused would not have been admissible even when it was a fact in issue, because the main part of

S. 54, Evidence Act, provides that the bad character of an accused is irrelevant in criminal proceedings. The effect of Explanation 1 to S. 54 is to

allow evidence of a fact in issue to be given even in cases where the fact in issue happens to be the bad character of an accused. In criminal

proceedings evidence of general bad character of an accused cannot be given unless general bad character of the accused is a fact in issued or

unless evidence has been given of his good character. In cases under Ss. 400 and 401, I.P.C., general bad character of accused is not of bad

character in so far as it is a fact in issue. The fact in issue in a case under S. 401 is a particular trait of bad character, namely, association for the

purpose of habitually committing offences of robbery or theft. Evidence can be given of that particular trail of bad character but not of general bad

character. In such a case evidence cannot be given that the accused is a murderer or immoral person or a cheat.

(4) Order accordingly.