BHONA Vs. EMPEROR

JUDGEMENT

(1.) This is a jail appeal in a gang case, under Section 401 of the Indian Penal Code which before admission was sent to us by one of the Benches constituted to try undefended appeals in Chambers, for argument on the point whether, having regard to the decision in the case of Mankura Pasi v. Queen Empress (1899) I.L.R. 27 Cale. 139, evidence of previous convictions for offences against property and for bad livelihood are admissible in gang cases. We have heard the learned Deputy Legal Remembrancer for the Crown and have considered the reported and unreported cases. It was held by Prinsep and Hill JJ., in the case above cited that the character of the accused was not a fact in issue in the offence of belonging to a gang of persons associated for the purpose of habitually committing theft, and that, therefore, evidence of bad character or reputation of the accused is inadmissible for the purpose of proving the commission of that offence. The judgment is a doubtful one inasmuch as the case of Empress v. Naba Kumar Patnaik (1897) 1 C.W.N. 146, where it was held that previous convictions for dacoity are relevant on a charge under Section 400 of the Indian Penal Code, provided they are prior to the inception of the charge of belonging to a gang, is cited with approval.

(2.) Further, the decision went on the ultimate ground that even if convictions for theft and bad livelihood were admissible they were not sufficient in themselves for a conviction. "Such evidence," the Judges observe, rather curiously we venture to suggest, considering the statement set out in the judgment of what the evidence showed, "had in the case before them, formed the main, if not the only, ground on which the appellants had been convicted."

(3.) But in cases where the other evidence has established association for purposes of habitually committing theft, evidence of previous convictions, whether for offences against property or for bad livelihood, has, we find, always been admitted, not as evidence of character, but as evidence of habit, and it would seem that of such evidence convictions for bad livelihood would be more cogent than those for isolated thefts.