Emperor vs Haji Sher Mahomed and Others

Fawcett, J.—There are twenty-four accused persons before the Court charged with belonging to a gang of persons associated for the purpose of habitually committing dacoity u/s 400, Indian, Penal Code. It is sought to prove against one or more of these accused that they have been previously convicted for the offence of theft, or have been ordered to give security for good behaviour on the ground of being habitual thieves, etc, under Chapter VIII of the Criminal Procedure Code. The question is whether evidence of such previous convictions or orders is admissible against them u/s 14 of the Indian Evidence Act. There is no doubt (1) that, in the case of a person accused u/s 400, Indian Penal Code, a previous conviction of dacoity is admissible u/s 14, as held in Empress v. Naba Kumar Patnaik 1 C.W.N : 146, and (2) that a previous conviction of theft or ah order to give security on the ground of being an habitual thief, is admissible against him in a case where he is charged u/s 401, Indian Penal Code, i.e., belonging to a gang of persons associated for the, purpose of habitually committing theft or robbery, as held in Bonai v. Emperor 9 Ind. Cas. 555 : 15 C.W.N. 401 : 12 CrI. L.J. 97 and Emperor v. Tukaram Malhari 13 Ind. Cas. 811 : 14 Bom. L.R. 373 : 13 CrI. L.R. 539 : 1 Bom. Cr. 136. In these two cases such evidence clearly fails u/s 14 of the Indian Evidence Act, as showing a disposition on the part of the accused towards the particular conduct alleged against him in the charge, namely, a habit of committing (1) dacoity and (2) theft. But if in order to establish a habit of committing dacoity you rely on evidence that the accused had previously committed thefts, you no doubt produce evidence which may show a disposition towards conduct of a similar description to that in question, but not of the exact description in issue. Dacoity is equivalent to (a) theft + (b) more offenders than four (c) violence and elements (b) and (c) are wanting. A person may be a habitual surreptitious night thief, but this goes very little way towards showing that he has a disposition towards dacoity. It is little, if anything, more than evidence of bad character which is exclude by Section 54 of the Indian Evidence Act. This lays down the general rule that, ordinarily, the fact that the accused person has a bad character is irrelevant, and it is only if the evidence now sought to be put in falls u/s 14 that it escapes this general rule. Explanation I to Section 14 lays down that a fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question, and illustrations (o) and (p) to the section illustrate what is meant thereby. If in illustration (p) the word "did" is substituted for the word "said" I think it clearly shows that the evidence in question is irrelevent. It will then run as follows:

A is tried for a crime:

The fact that he did something indicating an intention to commit that particular crime, is relevant.

The fact that he did something indicating a general disposition to commit crimes of that class, is irrelevant.

(It may be noted that there is a mistake in repeating this illustration in Ameer All''s Evidence Act, which has persisted even to the last Edition, namely, the Word "relevant" is wrongly given in the last clause instead of the word "irrelevant)."

In a case like the present the offence for which the accused are being tried is the particular one of belonging to a gang of dacoits, and simple theft or bad livelihood, in which the order for giving security is based on evidence merely that the accused habitually commits thefts (as opposed to dacoity and possibly robbery) is not, I think, evidence indicating an intention to commit the particular crime of which the accused is charged. It at most merely indicates a disposition to commit crime of a Similar class, though I think, it is very doubtful whether dacoity must not be put in a higher class than theft, so that the evidence would not even fall within the description mentioned in the last clause of illustration (p). Therefore, I think t at Section 14 does not permit of this evidence being admitted. The authorities also support this view. In Public Prosecutor v. Bonigiri Pottigadu 2 Ind. Cas. 307 : 5 M.L.T. 100 : 9 CrI. L.J. 567 it was held that in a case u/s 400, Indian Penal Code, the evidence of the commission of other offences than dacoity is only evidence of bad character and is inadmissible u/s 54 of the Indian Evidence Act. The remarks in Emperor v. Debendra Pershad 2 Ind. Cas. 601 :13 C.W.N. 973 : 9 CRI.L.J. 610 : 10 CrI. L.J. 91 and in Emperor v. Panchu Das 58 Ind. Cas. 929 : 24 C.W.N. 501 : 31 C.L.J. 402 : 21 CrI. L.J. 849 support the view I have taken. In the last named case even the dissenting Judge, Chaudhuri, J., at page 709 Page of 47 C.--[Ed.] says:

No doubt, evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment is not admissible, unless upon the issue whether the acts charged against the accused were designed or accidental, or unless to rebut a defence otherwise open to them.

I hold, therefore, that the proposed evidence is inadmissible except in the case where the accused himself has given evidence that he has a good character, in which case it is admissible u/s 54.