KAREY Vs. STATE

JUDGEMENT

(1.) The applicant has been bound down under See. 110, Cr. P. C. on account of being a habitual thief and burglar. Two types of evidence were produced against him by the Prosecution, one consisting of witnesses who deposed that they suspected the applicant to have been responsible for thefts and burglaries committed in their houses and the other consisting of residents of the village where the applicant resides and its neighbourhood, who stated that he is a man of bad character and that his general reputation is that of habitual thief and burglar. The applicant denied the evidence of general repute; his defence witnesses deposed that his reputation is good and that he maintains himself by plying a tonga.

(2.) The Magistrate has disposed of the whole case in which 24 witnesses were examined for the prosecution and 25 for the defence in a judgment covering little more than two pages. Only the briefest gist of the evidence given by the prosecution witnesses is given; the names of most of them are not given. There is a longer discussion of the evidence of the defence witnesses but the names of most of them are not given. The Magistrate after discussing the defence evidence observed that it was not free from discrepancies and contradictions and is not worthy of much reliance. He admitted that most of the defence witnesses pay substantial land revenue and that some of them are bhumidhars. Still he accepted the evidence for the prosecution and bound down the applicant. The learned Sessions Judge's judgment is more detailed and there is greater discussion of the evidence. He accepted both types of evidence against the applicant and disbelieved the defence evidence about good reputation of the applicant and maintained the Magistrate's order.

(3.) Coming to the evidence of the first type, namely, of suspicions I find that it is inadmissible. What the prosecution had to prove is that the applicant is by habit a house breaker, or thief; this can be proved by proving that he has committed burglaries or thefts to such an extent that he can be said to be a habitual burglar or thief or by proving that his general reputation is that of a habitual burglar or thief. I do not think there is any third way of proving the fact. That he has committed a number of burglaries or thefts can be proved not only by previous convictions but also by evidence to the effect that such and such burglaries or thefts were committed by him. It is not essential that the evidence about the commission of burglaries or thefts be given by eye witnesses; it can also be given by persons who personally know the facts leading to the inference that the applicant was responsible for the burglaries and thefts. In other words, evidence to prove commission of burglaries and theft can be direct or circumstantial. But what is important to note is that the evidence must prove the commission of burglaries and thefts and not merely the suspicion that they might have been committed by the applicant. He can be bound down on the ground that he is a habitual burglar or thief and not on the ground that he is suspected to be a habitual burglar or thief. It is well known that suspicion does not amount to proof; a person suspected to have committed a burglary or theft is not a person proved to have committed a burglary or theft. Consequently suspicions that a person has committed a series of burglaries or thefts would at the most prove that he is suspected to be a habitual burglar or thief but not that he is (actually) a habitual burglar or thief. If suspicion does not amount to proof when a person is accused of having committed an offence, it does not amount to proof also when he is accused of being a habitual burglar or thief. The prosecution examined some persons in whose houses a theft or burglary was committed but none of them has proved that it was committed by the applicant or that ha was concerned in it. Some of them deposed that they suspected him but that evidence is not admissible. Some of them deposed that they heard subsequently that he was responsible for the theft or burglary; this evidence is so patently inadmissible that one is surprised that it was received by the Magistrate. One of them, Salga deposed about seeing him roaming about prior to the theft committed in his house; this was the reason given by him for suspecting him to be responsible for the theft. This fact may only lead to a suspicion but does not prove that the applicant committed the theft. The other witnesses, whose houses were burgled or plundered, did not depose about any facts even leading to the suspicion of the applicant's complicity in them. The Magistrate has said in his judgment that S. I. Reoti Saran Sharma deposed that he had investigated crime No. 53 of 1953 in which suspicion roll was put up against the applicant but no such statement is to be found in his deposition. He does not even prove that he investigated crime No. 53 of 1953. Further an investigating officer's statement that he suspected a certain person to have committed a burglary or theft is inadmissible because it is only an opinion of his and not a statement of fact within his personal knowledge. An opinion about certain person's having been concerned in a crime is inadmissible even that of a person who is expert in investigations. What he should depose about is the facts personally noticed by him and on which he found his opinion that the accused was a burglar or thief; it would be for the court to decide whether to draw the same inference from those facts or not. Accordingly the evidence of S. I. Tejvir Singh that the applicant was suspected in several thefts and burglaries was inadmissible and ought not to have been received. It was the duty of the Magistrate to see that no inadmissible or irrelevant evidence was brought on the record.