Naba Kumar Patnaik and others vs Empress

The appellants in these two cases, Naba Kumar Patnaik, Bhagabat Patnaik, Ram Gobinda Patnaik and Panchu Maiti have been convicted by the Sessions Judge of Midnapur of the offenceunder section 400, I.P.C., namely, belonging to a gang of persons, associated for the purpose of habitually committing dacoity and sentenced as follows.--Naba Kumar Patnaik Bhagabat Patnaik and Panchu Maiti to transportation for life, and Ram Gobinda to transportation for 10 years. These persons and five others--Kali Patnaik, Nunda Pundit, Raghu Das, Kumar Jana and Dwarka Mandal were accused of being members of one and the same gang of dacoits. The charges were framed against them on the 13th June 1896, and it was to the effect that they " on, before or after the 3rd February 1895 belonged and belong to a gang of persons associated for the purpose of habitually committing dacoity and thereby committed an offence punishable u/s 400, I.P.C.," and the trial in the Sessions Court was commenced on the 21st August 1896. The assessors were of opinion that the offence had not been proved against any one of these individuals The learned Sessions Judge agreed with the view of the assessors, so far as Kali Patnaik, Nunda Pundit, Raghu Das Kumar Jana and Dwarka Mandal were concerned, but differed from them as to the others, namely, the appellants before us; and he held that these persons were guilty of the offence with which they had been charged.

In convicting the appellants the learned Sessions Judge has proceeded upon their convictions in certain dacoity cases, and upon the evidence of the approver Hari Mondal.

The approver gave evidence of five dacoities, first a dacoity in the village Dharna, said to have been committed on the 3rd February 1895; one at Kaja Bashu, same day in May 1895, another at Bhupati Chuck on the 27th May 1895; the next at Manick Basu on the 21st December 1895, and, lastly in the village Baja, on the 10th April 1896.

It appears, however, that the prisoners Naba Kumar Patnaik, Bbagabut Patnaik and Ram Gobinda were acquitted after trial in the Dharna case on the 21st August 1896; but Panchu was convicted. As regards the dacoities at Kaja Bashu and Bhupati Chuck, it does not appear that any body was put on his trial, and necessarily there was no conviction of anyone of these persons for those dacoities.

In the Manick Basu case, however, Naba, Bhagabat and Panchu were convicted on the 17th August 1896 of the offence of dacoity, while Ram Gobinda was found guilty of an offence u/s 412, viz., for dishonestly receiving stolen property obtained by the commission of dacoity. In the Baja case, Naba Kumar and Bhagabat were acquitted, but Ram Gobinda and Panchu were convicted on the 21st July 1896.

For the prosecution the said convictions of appellants were put in : and the Sessions Judge was of opinion that they were admissible in evidence. The learned counsel for the appellants has, however, contended before us that having regard to the provisions of sec. 54 of the Evidence Act, those convictions are not relevant. In the case of Queen Empress v. Kartick Chunder Dass I.I.R. 14. Cal. 721, decided by a Full Bench of this Court on the 20th July 1887, the question referred for determination was whether in the trial of a person charged with the dishonest possession of stolen property, evidence could be given of a previous conviction of the accused for attempting to receive stolen property, knowing it to be stolen; and it was held that under Sec 54 of the Evidence Act, a previous conviction was in all cases admissible in evidence against an accused person. We find that subsequently by Act III of 1891, the said section, and some other sections of the Evidence Act were modified, as also an addition was made to Sec. 310 of the Code of Criminal Procedure. Sec. 54 of the Evidence Act, as it then stood, ran as follows :--" In criminal proceedings the fact that the accused person has been previously convicted of any offence is relevant, but the fact that he has a bad character is irrelevant, unless evidence has been given that he has a good character in which case it becomes relevant. Explanation. This section does not apply to cases in which the bad character of any person is in itself a fact in issue;" the section was by Act III of 1891 S. 6 so modified as to make it run as follows :-- " 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 Explanation I. This section does not apply to cases in which the bad character of any person is itself a fact in issue. Explanation II. A previous conviction is relevant as evidence of bad character." We find also that Sec. 14 of the Act has been so far modified as to add to it two Explanations; and the second Explanation runs thus :-- "Explanation 2-- But where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of, this section, the previous conviction of such person shall also be a relevant fact." We also find that to Sec. 43 has been added two Illustrations, (e) and (f), and they are as follows:--(e) " A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue"; and (f) " A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant u/s 8, as shewing the motive for the fact in issue." By the same Act III of 1891 the following addition has been made to Sec. 310, Cr. P.C. "Notwithstanding anything in this, section, evidence of the previous conviction may be given at the trial for the subsequent offence, if the fact of the previous conviction is relevant under the provisions of the Indian Evidence Act 1872."

Now, the question is, are the convictions of the appellants in the dacoity cases already mentioned relevant under the provisions of the Indian Evidence Act, 1872.

The modifications which we have noticed in the Evidence Act are apparently owing to the decision of this Court in the case of Kartick Chunder Dass ILR 14 Cal. 710, and the object which the Legislature had evidently in view was to amend the Evidence Act as regards previous convictions being used in evidence against an accused person in all cases, and if we were to confine our attention to Sec. 54 of the Act, as it now stands, we should be unable to hold that in any case a previous conviction is relevant, except where the bad cha, racter of any person is itself a fact in issue.

Looking then to Sec. 43 of the Act, and the Illustrations (e), and (f), added to it may well be argued, as it has been argued before us, that the said two Illustrations are exhaustive, and that in no other cases except those mentioned therein can a previous conviction be relevant; but turning to Sec. 14 of the Act, it seems to us that this view could hardly be correct; for the Explanation 2, to which we have already referred, distinctly states that where the previous commission of an offence is relevant, the previous conviction of such person shall also be a relevant fact. The question then, in the first place is, whether the previous commission by the accused in this case of the offence of dacoity is relevant.

We think that, having regard to the character of the offence attributed to the accused, previous commission of dacoity by them is relevant under sec. 14 of the Evidence Act.

The question in the second place is whether the convictions of the appellants in the previous dacoity cases are relevant. If the said convictions were previous to the time specified in the charge or previous to the framing of the charge in the case, there could be, we think, very little or no doubt that they would also be relevant under Explanation 2 of Sec. 14 of the Evidence Act. But, as already mentioned, the convictions are all subsequent to the time specified in the charge, and to the framing of the charge itself, and are not, therefore, in our opinion admissible in evidence.

The learned Sessions Judge, however, in holding that under Sec. 54 of the Evidence Act, the said convictions are evidence, has proceeded upon certain cases which were decided under the law as it stood prior to the amendments, we have already noticed, were made by Act III of 1891. That Act has, as already observed, made considerable modifications in the Evidence Act; and the Sessions Judge has fallen into an error in assuming that the convictions in question are previous convictions within the meaning of the Evidence Act.

The only other evidence, as has already been stated, upon which the learned Sessions Judge has relied in convicting the appellants, is the evidence of Haru, the approver.

His evidence, we need hardly say, must be received with a great deal of caution : and we have to see whether his evidence has been corroborated in material respects by any independent evidence. He speaks of all the five different dacoities, and says that all the persons that were charged with the offence under sec. 400 before the Sessions Judge were implicated in all these transactions. He has, as it appears upon his evidence, given his depositions in three cases as an approver; but it will be observed that so far as one of the cases is "concerned, namely, the Dhrna case, notwithstanding his evidence, Naba Kumar, Bhagabat and Ram Gobinda were acquitted; and notwithstanding his evidence, in this case, Kali Patnaik, Nunda Pundit, Raghu Das, Kumar Jana, Dwarka Mandal have also been acquitted. It has, however, been urged that his evidence is corroborated by the fact that these appellants have been convicted in some of the dacoity cases. But with reference to this argument, we need only say that those convictions, as we have already held, are not relevant in this case; and in the next place, it seems to us, that even allowing them to be admissible in evidence, it does not carry the case very far; for the question still remains whether these persons or any of them, belong to a gang of persons associated for the purpose of habitually committing dacoity. Evidence must be given of the existence of a gang of persons; of their association, and association for the purpose of habitually committing dacoity and robbery.

We have considered the evidence of Haru Mandal with reference to the elements which constitute the offence with which the appellants before us have been charged; and we are unable to hold that that evidence is convincing and satisfies the conditions of sec. 400 of the Indian Penal Code. Upon those grounds we are of opinion that the convictions and sentences in these two appeals must be set aside Convictions set aside.