Emperor vs Wahiduddin Hamiduddin (No. 1)

K. Kemp, J.—In the course of the evidence for the Crown, a question has arisen as to whether the prosecution is entitled to prove not only that accused Nos. 2, 3, 4, 5, 6, 7 and 9 were closely and intimately associated with the approver Haji Sirajuddin but that the object of that association during a period of several months prior to the dacoity in question had been the commission of thefts and other discreditable acts. The mere fact that the evidence adduced would tend to show the commission of crimes other than that charged does not of course render it inadmissible, if it is in fact otherwise relevant to any issue properly before the Court. But having regard to the prejudice which must inevitably be introduced by such evidence, especially in a jury trial, I think the Court should be careful to see that its relevancy is clearly made out. The accused above referred to are not in this case charged with belonging to any gang but are charged with committing, or conspiring to commit, a particular dacoity--a transaction entirely unconnected with any of the aforesaid thefts. It is, I think, clear, in the first place, that, in so far as such evidence may be tendered with a view of showing the character of the accused concerned, it would be irrelevant u/s 54 of '''' the Indian Evidence Act, their bad character not being in itself a fact in issue. Nor would it, to my mind, be relevant in this case u/s 14 as showing the existence of any relevant state of mind, etc., inasmuch as the tendency to commit thefts generally could not fairly be deemed to throw any light on the existence of an intention to commit, or to engage in a conspiracy to commit, this particular dacoity.

Mr. Velinker has in fact given up this contention, but has argued that a conspiracy can in the nature of things ordinarily only be proved by inference, and that the evidence he tenders would show the closeness of the association alleged to have existed, and would therefore be relevant u/s 9 of the Indian Evidence Act as supporting the inference suggested and/or u/s 11 as making the existence of the conspiracy highly probable. As far as the evidence of close association with the approver is concerned, there could, I think, be no objection to the admission of such evidence, for what it is worth, in support of the approver''s statement that a conspiracy in fact existed. But as far as regards the nature and character of the association, I am unable to see that there is any substantial difference in the distinction thus attempted to be drawn between evidence tending to show the character of the accused himself, and evidence tending to show the character of the persons with whom he is alleged to have associated, and the nature of the association. It seems to me that in each case the inference is one against which the law sets its face. To take what is perhaps an extreme case, it would, I think, be highly unreasonable to argue that proof of association with the express object of committing petty thefts renders highly probable the existence of a conspiracy to commit murder; and yet it seems to me to be a conclusion that would follow from the acceptance of the contention here put forward. I, therefore, disallow the evidence tendered on this point.