BABAR BECHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) His Lordship after narrating the facts in details and after considering the defence of each individual appellant proceeded to discuss what the prosecution should prove in a charge under sec. 401 I. P. Code.

(2.) Before we deal with the evidence it would be desirable to state what the prosecution has to prove in a charge under sec. 401 Indian Penal Code which reads as under :--

(3.) As the section clearly mentions the prosecution has to prove that the accused person charged under section 401 belong to a gang of persons and that the gang of persons is associated for the purpose of habitually committing theft or robbery. The word being implies something more than casual association it involves the notion of continuity and requires the proof of 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 offence. The prosecution must also prove that the members of the gang were associated for the purpose 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 dose not lead evidence to prove the actual commission of an offence 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 circumstances proved and acts done by the accused. Usually if the prosecution proves that the members of the gang were associated in the commission of several offence 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 sometime after the gang had been formed. But if it is proved that a person subsequently joined and belonged to a gang of person associated for the purpose of habitually committing theft or robbery he would be guilty under sec. 401 I. P. Code although he may not have been a member of the gang from the beginning. As already observed the association 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 sec. 401 Indian Penal Code.