MOSAHEB DOME Vs. EMPEROR

JUDGEMENT

(1.) 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 under Section 75, Indian 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 under Section 565, Criminal P.C., to notify his residence or change of residence for a period of three years after the termination of his sentence.

(2.) 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. Under Section 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.

(3.) 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.