Mosaheb Dome vs Emperor

Rowland, J.—The appellant Mosaheb Dome alias Sahebwa Dome has been convicted by the Additional Sessions Judge of Gaya on a verdict of guilty by a majority, of four to one on a charge of lurking house trespass with intent to commit theft in the house of Abdul Hai at Daudnagar. He was also charged u/s 75, Penal Code, with being liable to enhanced; punishment by reason of a previous conviction and to this charge he pleaded guilty. There is evidence that he is a registered member of a criminal tribe under the Criminal Tribes Act, 6 of 1924. He has been sentenced to rigorous imprisonment for six years and directed u/s 565, Criminal P.C., to notify his residence or change of residence for a period of three years after the termination of his sentence.

His appeal which is sent from jail states that he is innocent and has been wrongly convicted at the instance of constable Ram Swarup Singh; but in a case tried by jury appeal lies only on points of law.

The procedure followed at the trial and in charging the jury is open to the following comments. u/s 54, Evidence Act, the fact of bad character of the accused is irrelevant in criminal proceedings and facts indicating bad character are not to be disclosed to the jury while the substantive offence is still open for their decision. In Section 310, Criminal P.C., provision is made for cases in which an accused is charged with liability to enhanced punishment by reason of a previous conviction. The further charge is not to be read out in Court, nor is the accused to be asked to plead to it, nor is it to be referred to by the prosecution until after the verdict.

The fact that an accused is a registered member of a criminal tribe under the Act is like a previous conviction, a matter from which bad character can be inferred and which may affect the sentence. It should be treated in the same way as the fact of a previous conviction by not being disclosed to the jury until after the verdict lest their minds should be prejudiced. The record does not show that the accused has had the full protection which the law is intended to provide. In the first information Ex. 1 the accused is referred to as "a member of the C.T. Act" and this portion of the information should have been excluded when reading it out to the jury. There is no indication that such a precaution was taken.

As the trial proceeded the prosecution were allowed to examine Harihar Nath Singh, a clerk of the police office, to prove that Mosaheb Dome of Daudnagar was entered in the criminal tribes register. This evidence certainly ought not to have been admitted until after the verdict had been taken or the accused convicted. In the charge to the jury the learned Judge stated:

For establishing the charge u/s 457, I.P.C., it is necessary for the prosecution to prove that the accused entered the house of Abdul Hai in the night and that his intention in doing so was to commit theft.

The charge was of lurking house trespass by night and the definition in Section 443, I.P.C., indicates that one ingredient in this offence is "having taken precautions to conceal such house trespass," The jury were never asked to find and have not found whether this ingredient was present. As-regards his intention of committing theft, the learned Judge told the jury:

In the absence of anything to show that the accused had the intention to commit some offence other than theft, the presumption will be that his intention was to commit theft.

This is not a correct statement of the law. When criminal intention is an ingredient of ah offence, it is on the prosecution to prove that intention just as much as any other ingredient. The entry of one person into the house of another will not be presumed criminal at all unless there are circumstances from which an inference of criminality can be drawn. It might be necessary in this state of things to direct a re-trial but for the fact that in the Committing Magistrate''s Court, the accused had admitted that he entered Abdul Hai''s house on the night of 8th September 1938, with intent to commit theft. That admission is evidence u/s 287, Criminal P.C., and in face of that admission, I do not think that the result of the trial was. affected by the misdirection to which I have referred; but there is no admission that the accused had taken any precautions to conceal his presence nor was this point put to him by the committing Magistrate.

Nor do I find any evidence of any precautions taken by the accused to conceal his presence. That being so, the conviction u/s 457, I.P.C, cannot be Supported and the verdict must be treated as one of guilty of house trespass--Section 451. As the intention was theft, the prisoner is liable under the latter part of the Section to imprisonment up to seven years. His conviction on the charge of liability to enhanced punishment, by reason of his previous conviction and Section 75, I.P.C., does not call for any comment.

Section 23, Criminal Tribes Act, regulates the punishment to be imposed on a member of any criminal tribe who having been convicted of any offence mentioned in Schedule 1 to the Act is again convicted of an offence mentioned in that Schedule. In the circumstances stated, the accused is to be punished on a second conviction with imprisonment for a term of not less than seven years. Therefore if Section 23 was applicable, the sentence of six years would have been in the absence of special reasons to the contrary inadequate. The Sub-divisional Magistrate thought this Section to be applicable and in that view felt bound to commit the accused to the Court of Session.

The learned Judge has not considered the question whether Section 23 applies. The charge against the appellant was u/s 457, I.P.C., which is an offence mentioned in the Schedule; but his previous conviction had been u/s 380, I.P.C., which is an offence not mentioned in the Schedule. Therefore the fact that the accused was a registered member of a criminal tribe was wholly irrelevant, and need not have been brought on the record at all. I may point out that the offence of which the accused is now being convicted, namely Section 451, I.P.C., is also not mentioned in the Schedule.

It is not necessary to impose a more severe sentence than would be appropriate in the case to any person convicted u/s 451 after a previous conviction u/s 380. In the result, the decision of the Court is modified and the accused convicted u/s 451, I.P.C, read with Section 75. There is no evidence of his committing any theft and the sentence of six years appears to me unduly severe. I sentence him to two years'' rigorous imprisonment and order him u/s 565, Criminal P.C, to notify his residence or change of residence for a period of three years after the termination of his sentence.