Amdumiyan Guljar Patel And Others v. Emperor Opposite Party.

Niyogi, A.J.C:— This appeal is preferred by 14 persons who have been adjudged guilty of being members of a gang associated for the purpose of habitually committing house-breaking and theft punishable under S. 401, I.P.C, and have been sentenced to various terms of imprisonment. The evidence produced in the case consisted of entries made in the police case diaries from the year 1922 to 1933 and several village crime note-books, some inspection notes made by Circle Inspectors, the confessions of some of the co-accused and a mass of oral evidence of which the testimony of one Shrawan (P.W 11) was the most important. The investigating officer, in the witness-box, described him as the ring-leader of the gang. He was arrested by the police and was in custody during the major part of the investigation. At a later stage Shrawan along with others was released on bail by the Magistrate before whom they were produced for remand. The police before challaning the case applied for and obtained an order from the Magistrate cancelling the bail bond of Shrawan. He was thus removed from the array of accused persons and produced as a witness in the Court.

2. Among those of the accused persons whose confessions were used under Section 30 of the Evidence Act, was one Dewaji. He pleaded guilty to the charge against him and yet his confession has been taken into consideration under Section 30 of the Evidence Act. There are two important questions of law which arise in this case. The first is, whether Shrawan who was admittedly the ring-leader of the gang and against whom there was evidence as against others could be a competent witness in the case. The appellants' contention is that he is an incompetent witness, whereas the Crown relies on 16 NLR 9 AIR 1920 Nag 255 , 58 IC 449 , 21 Cr LJ 769 , 16 NLR 9 and 45 All 226. AIR 1923 All 91 , 77 IC 961 , 45 All 226 , 21 ALJ 42 Both these cases were decided before the amendment of S. 337 made in 1923, whereby in offences triable exclusively by the High Court or the Court of Session and certain specified offences including that under S. 401, I.P.C, Magistrates including any Magistrate of the First Class, have been empowered to grant conditional pardon at any stage of the investigation. Before 1923 there was no provision permitting the Magistrates to accord conditional pardon during the investigation. As a result of this amendment that power has been given to the Magistrates and the question, arises whether the police can, irrespective of S. 337, refrain from prosecuting an accused person against whom there is sufficient evidence and thus indirectly pardon his offence. The object of S. 337 is to remove from the accused person the disability which is imposed on him by S. 342(4), namely that no oath can be administered to him. That can be done only by a Magistrate and by no other authority. Before, the amendment of 1923 it was open to contend that a person could not be treated as an accused person unless he was produced before the Magistrate for inquiry or trial. As a result of the amendment a person against whom there is evidence also becomes an accused person even during the investigation. It is for this reason that the power to give conditional pardon is given to the Magistrate. Under Section 170 of the Cr PC, the police are under an obligation to produce before the Magistrate any person against whom there is sufficient evidence. In refraining from prosecuting Shrawan the police have not only contravened Section 170 of the Cr PC, but also the plain requirements of Section 337 of the Cr PC. The present case is analogous to one reported in 2 All 260 (1878) 2 All 260 where an accused person who was given pardon by a Magistrate having no jurisdiction to do so, was held to be an incompetent witness. The other question is whether the confession of an accused person who has pleaded guilty can be used against his co-accused under Section 30 of the Evidence Act. On this point there has been much divergence of judicial opinion, as will appear from the perusal of cases such as 7 Mad 102, (1884) 7 Mad 102 , 2 Weir 740 All 524, (1895) 17 All 524 , 1895 AWN 111 23 Mad 151, (1900) 23 Mad 151 , 2 Weir 747 38 Cal 446, (1911) 38 Cal 446 , 12 IC 87 , 12 Cr LJ 479 , 16 CWN 49 23 All 53, (1900) 23 All 53 , 1900 AWN 192 38 Mad 302, In re Bati Reddi, AIR 1914 Mad 45 , 22 IC 157 , 15 Cr LJ 13 , 38 Mad 302 6 Lah 176 AIR 1925 Lah 485 , 95 IC 63 , 27 Cr LJ 735 , 6 Lah 176 & 30 All 540. (1908) 30 All 540 , 5 ALJ 505 , 8 Cr LJ 380 , 1908 AWN 241

3. Both the questions of law are of great importance. It is necessary that there is an authoritative pronouncement by a Bench of this Court. The questions may be framed as follows: (i) Whether, when the police refrain from prosecuting a person against whom there is adequate evidence to justify his production for inquiry and trial before a Magistrate under Section 170 of the Cr PC, he can be a competent witness, unless he is tendered a conditional pardon under Section 337 of the Cr PC (ii) Whether, a confession of a co-accused who has pleaded guilty can, under Section 30 of the Evidence Act, be considered against the other co-accused. I therefore submit this case to the Judicial Commissioner for referring the two questions set forth above to a Bench of this Court.

Opinions

Niyogi, A.J.C:— The questions referred to the Bench for determination are as follows:

(i) Whether, when the police refrain from prosecuting a person against whom there is adequate evidence to justify his production for inquiry and trial before a Magistrate under Section 170 of the Cr PC he can be a competent witness, unless he is tendered a conditional pardon under Section 337 of the Cr PC (ii) Whether, a confession of a co-accused who has pleaded guilty, can, under Section 30 of the Evidence Act, be considered against the other co-accused.

4. The facts of the case in brief are that some 14 persons were prosecuted on the accusation of being members of a gang associated for the purpose of habitually, committing house-breaking and theft punishable under S. 401, I.P.C The prosecution examined an individual named Shrawan as a witness in the case. He was described by the investigating officer, in the witness-box, as a ring-leader of the gang. He had been arrested by the police and was in their custody during the major part of the investigation. At a later stage Shrawan, along with others, was released on bail by the Magistrate before whom they were produced for remand. The police, before challaning the case, applied for and obtained an order from the Magistrate cancelling the bail bond of Shrawan. He was thus removed from the array of the accused persons and produced as a witness in the Court. The Magistrate who tried the case took into consideration the confessions of certain accused persons under Section 30 of the Evidence Act, against those whom he convicted. Among the confessing accused was one Dewaji who had pleaded guilty to the charge against him. It is contended that Dewaji's confession could not be used against his co-accused under Section 30 of the Evidence Act.

5. Section 337 of the Cr PC, has been amended in 1923 by Section 86 of the Cr PC, Amendment Act, 18 of 1923, by extending the scope of the section so as to include, besides those triable by the High Court or the Court of Session, several other offences including that punishable under S. 401, I.P.C and also amplifying the power to tender a pardon even during the course of the investigation. The terms of that section show that it is an enactment which is enabling and not obligatory. There is nothing in it which compels the police to produce an accused person who is intended to be examined as a witness in the case for the tender of a pardon. But it is argued that the section read in the light of Sections 343 and 163 of the Cr PC, leaves no scope for the police to examine any person as a witness unless he has been tendered a pardon in accordance with Section 337 of the Cr PC, S. 337 speaks of “any person supposed to have been directly or indirectly concerned in or privy to the offence” and “every other person concerned, whether as principal or abettor, in the commission thereof.” Such a person may be one who is or is not arrested during the investigation and produced before the Magistrate for trial. Section 343 of the Cr PC, appears to contemplate a restricted class of persons when it uses the word “accused person.” S. 343 occurs in Chap. 24 which deals with enquiries and trials and S. 163 in Chap. 14 which deals with information to the police and their powers to investigate. Beading S. 163, as it itself directs, in conjunction with Section 24 of the Evidence Act, and comparing it with Section 343 of the Cr PC, it would appear that both are directed to one and the same end, namely, prohibition of any influence by means of any promise or threat or otherwise so as to induce an accused person to make any disclosure which is calculated to incriminate himself. If the object of S. 343 and S. 163 is the same, why did the legislature insert S. 343 in the chapter relating to inquiries and trials? It is because it intended to keep the person who is under trial free from influence of any authority. The expression “accused person” occurring in Section 343 of the Cr PC, means one who is in the array of the accused persons under inquiry or trial: see 25 Bom 422. (1901) 25 Bom 422 , 2 Bom LR 1095

6. As regards the intention and effect of Section 337 of the Cr PC, there is nothing in the terms thereof to justify the interpretation that it makes it imperative on an investigating officer to produce an accused person during the course of investigation before a Magistrate for the tender to him of a conditional pardon. Assuming that it is so, what is to happen if the investigating officer does not produce him for the tender of a pardon? The reply is found in the judgment of Mittra, A.J.C in 16 NLR 9: AIR 1920 Nag 255 , 58 IC 449 , 21 Cr LJ 769 , 16 NLR 9

If a person is placed before the Magistrate for the tender of a pardon under S. 337, he is an accused person, though he may not have been arrested or challaned. He is a person over whom the Magistrate is exercising jurisdiction under S. 337. If he accepts the offer, he becomes a conditionally pardoned accused. If he rejects the offer, he ceases to be an accused unless he is already an accused in the technical sense.

7. Here the witness Shrawan stands in the last mentioned position of one who does not accept a pardon and therefore in the eye of the law ceases to be an accused “unless he is already an accused in the technical sense.” What the learned Judge meant by an accused person in the technical sense is explained by him in these words:

After process has been issued against a person under an accusation, he becomes technically an accused person and necessarily comes under S. 343.

8. This means that a person in the position of Shrawan would not have been regarded by the learned Judge as an accused in the technical sense of the word. But it is urged that the Code uses the word “accused person” in Section 167 of the Cr PC, as well as in Ss. 342 and 343. It is true, but it must not be overlooked that the expression occurs in connexion with two distinct stages of the criminal proceeding. In view of the fundamental principle of criminal jurisprudence a person who is the subject of a criminal proceeding cannot, until his conviction, be described otherwise than an accused person. It may not be quite correct to say as in 16 Bom 661 (1892) 16 Bom 661 that the word is used in two different senses. The sense is the same, namely, that he is the subject of an accusation. The difference lies in this that in an investigation the evidence is collected by an executive officer against an accused person, whereas in inquiry or trial the evidence so collected is scrutinized by a competent judicial authority. A distinction must clearly be made between an investigation and an inquiry or trial. An investigation commences when an information is received relating to the commission of any offence and ends with a report by the investigating officer after the completion of the investigation to be made as required by Section 173 of the Cr PC. After having submitted the report to the Magistrate the police drop out of the scene and the case comes entirely within the control of the Magistrate and its conduct passes into the hands of the Crown represented by the Public Prosecutor. Then the Magistrate initiates proceedings as contemplated in S. 190(1)(b) and issues a process against the person named in the police report.

9. It is at this stage that the accused person becomes technically an accused person as there is prima facie evidence collected against him. This proceeding, if a summons or a warrant case, is styled a trial, and, if a Sessions case, is styled an inquiry: see 43 Mad 511. AIR 1920 Mad 337 , 56 IC 50 , 21 Cr LJ 402 , 43 Mad 511 , 38 MLJ 370 (FB) It is argued that inquiry includes investigation and reference is made to 3 Lah 431, AIR 1923 Lah 270 , 75 IC 365 , 24 Cr LJ 941 , 3 Lah 431 12 Lah 16, AIR 1930 Lah 945 , 1930 Cr C 1041 , 129 IC 481 , 31 PLR 780 , 12 Lah 16 50 Bom 741. In re Evans, AIR 1926 Bom 551 , 97 IC 801 , 27 Cr LJ 1169 , 50 Bom 741 , 28 Bom LR 1043 In the first mentioned case it was held that the word inquiry used in Section 337 of the Cr PC, was comprehensive enough to include an investigation and the conditional pardon tendered under S. 337 by the Magistrate was valid. The two last mentioned cases relate to the construction of the expression ‘accused person’ occurring in S. 340 and laid down that it was wide enough to include a person, an accusation against whom was under investigation and that he was entitled to an access to and the assistance of a legal adviser. That the word ‘inquiry’ used in S. 337 has a restricted meaning is clear from the fact that the legislature amended the section in 1923 by the insertion of the expression at any stage of the investigation “which it would not have done had the inquiry” included investigation. The authorities referred to above have, however, no bearing on the issue in the present case.

10. Here we are concerned with the words ‘inquiry’ and ‘the accused’ occurring in Section 342 of the Cr PC. It is the primary principle of construction of the statute that the words used in any enactment are to be construed with reference to their context. The question is whether the word ‘inquiry’ is used in a comprehensive or a restricted sense. It says in sub-s. 4 that no oath shall be administered to “the accused.” The meaning of this word must be gathered from the manner in which the word is used in the same section. There is a presumption that the legislature uses as far as possible the same word in the same sense in a statute. This rule will apply with greater force when in one and the same section the same word is used. Now the word accused occurs in sub-s. 1, Section 342 of the Cr PC. In what sense is that word used there? That sub-section deals with the power to examine the accused “for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him” and … “after the witnesses for the prosecution have been examined and before he is called on for his defence.” These words leave no room for doubt that the “inquiry” contemplated is one that follows after the accused, on a report by the police under S. 173, comes within the jurisdiction of a Magistrate. Without violence to the words used in the section the word “inquiry” cannot be made to include investigation. There can obviously be no “evidence” as such and the Magistrate could not possibly examine the witnesses for prosecution” in the course of the investigation. It is therefore indisputable that the word “inquiry” used in S. 342 does not include investigation, and the words “accused person” must mean one over whom the Magistrate is exercising jurisdiction. It is to such a person—the accused in the technical sense—that an oath cannot be administered.

11. It is clear that Shrawan was not an accused person in the sense in which that expression is used in S. 342 and consequently there was nothing to debar the Magistrate from administering an oath to him. Nor is there anything in Section 118 of the Evidence Act, and Section 5 of the Oaths Act, to preclude him from being a competent witness. Turning to the authorities, there is not a single case in which a person situated in the position of Shrawan was held to be an incompetent witness. In 16 NLR 9, AIR 1920 Nag 255 , 58 IC 449 , 21 Cr LJ 769 , 16 NLR 9 3 Rang 11 AIR 1925 Rang 122 , 85 IC 236 , 26 Cr LJ 492 , 3 Rang 11 and 59 Bom 355 AIR 1935 Bom 186 , 1935 Cr C 487 , 156 IC 392 , 36 Cr LJ 937 , 37 Bom LR 179 , 59 Bom 355 the person who was held to have been rightly examined as a witness had not been arrested by the police. In 16 Bom 661 (1892) 16 Bom 661 the witness had been arrested but discharged. In 23 Bom 213, (1899) 23 Bom 213 45 Cal 720 AIR 1919 Cal 1021 , 45 IC 999 , 19 Cr LJ 663 , 45 Cal 720 and 54 Cal 52 AIR 1927 Cal 307 , 101 IC 657 , 28 Cr LJ 481 , 54 Cal 52 an accused person who was being separately tried was held to be a competent witness in a trial against his accomplices. In 1 Bom 610, (1875) 1 Bom 610 2 All 260 (1878) 2 All 260 and 10 Bom 190, (1886) 10 Bom 190 the witnesses were indeed held to be incompetent but these cases are distinguishable. In each of them, the witness was actually being tried by the Magistrate and the conditional pardon tendered to him having been held invalid, he was relegated to the array of the accused who were under trial and was held incompetent to be a witness in view of Section 342(4) of the Cr PC. In conclusion, all that can be said is that Shrawan not being pardoned under S. 337 was left in the position of being liable to be tried on a report by the police. It cannot be gainsaid that the device of obtaining evidence by the back door, as has been done in the case of Shrawan, is reprehensible and is to be deprecated. But since there is no provision of law which precludes the Court from administering oath to such a person he must be held to be a competent witness. It is true that he would suffer from the drawback of testifying under a deep shadow of suspicion that his evidence was procured by threat or promise, but that cannot affect his competency although it is bound to detract from his credibility. The answer to the first question must therefore be recorded in the negative (affirmative?)

12. As to the second question, a distinction must be made between summons and warrant cases on the one hand and Sessions cases on the other. Cases in which it was held that the confession of a co-accused who pleaded guilty could not be used under Section 30 of the Evidence Act, were those of Sessions trials. In 7 Mad 102 (1884) 7 Mad 102 , 2 Weir 740 17 All 524, (1895) 17 All 524 , 1895 AWN 111 23 All 53, (1900) 23 All 53 , 1900 AWN 192 19 Bom 195, (1895) 19 Bom 195 30 All 540 (1908) 30 All 540 , 5 ALJ 505 , 8 Cr LJ 380 , 1908 AWN 241 and 38 Cal 446, (1911) 38 Cal 446 , 12 IC 87 , 12 Cr LJ 479 , 16 CWN 49 the point arose in a Sessions trial. The view taken in these cases was followed in 22 Mad 491 (1899) 22 Mad 491 , 2 Weir 746 which was a warrant case. The Madras High Court however in two later cases, viz., 23 Mad 151 (1900) 23 Mad 151 , 2 Weir 747 and 38 Mad 302, In re Bati Reddi, AIR 1914 Mad 45 , 22 IC 157 , 15 Cr LJ 13 , 38 Mad 302 dissented from that ruling. 35 CWN 490 AIR 1931 Cal 341 , 1931 Cr C 405 , 131 IC 142 , 32 Cr LJ 667 , 58 Cal 1214 , 35 CWN 490 has been brought to our notice. The main issue in the case was whether the accused who had pleaded guilty and had been convicted could be examined as a witness. It was held that he could be so examined. Incidentally they referred to various authorities quoted above and without discussion their Lordships expressed their opinion that the conviction should not be deferred.

13. As pointed out in 43 Mad 511, AIR 1920 Mad 337 , 56 IC 50 , 21 Cr LJ 402 , 43 Mad 511 , 38 MLJ 370 (FB) the trial in the Sessions Court begins only when the accused pleads not guilty and claims to be tried: see Section 272 of the Cr PC. Under S. 271 if he pleads guilty the Court cannot try him but has forthwith to convict him. To defer his conviction only to enable the Court to use his confession under Section 30 of the Evidence Act, against his co-accused, was rightly deprecated in 23 All 53 (1900) 23 All 53 , 1900 AWN 192 although the learned Judge who decided the case remarked that the was not prepared to say that in point of law it must be excluded. Section 255(2) of the Cr PC, appears to leave it to the discretion of the Magistrate to convict immediately or to defer conviction. I am therefore of opinion that in warrant cases, it is discretionary with the Magistrate to defer conviction of the accused who pleads guilty and use his confession against the other co-accused under Section 30 of the Evidence Act.

Pollock, A.J.C:— I agree that Section 337 of the Cr PC, is merely an enabling section that empowers a Magistrate to grant a pardon to any person supposed to be concerned in or privy to the offence and that the word ‘accused’ in Ss. 342 and 343 must mean a person who is accused in the case that is proceeding before the Magistrate. There was therefore nothing to prevent the administration of an oath to Shrawan and he was therefore a competent witness. The view expressed in 16 NLR 9, AIR 1920 Nag 255 , 58 IC 449 , 21 Cr LJ 769 , 16 NLR 9 that in such a case it is imperative for the Magistrate to proceed against Shrawan and that his failure to do so makes the proceedings invalid, seems to me to be quite untenable. It is for the executive authorities to decide who is to be prosecuted, and under S. 204 the Magistrate must issue a summons, if he is of opinion that there is sufficient ground for proceeding, merely against those persons against whom a police report had been sent in under S. 170. I also agree that this method of obtaining evidence is contrary to the spirit of the Code and is strongly to be deprecated. It is not however illegal, but the evidence of a witness in Shrawan's position must ordinarily be of less value than that of a person who has been granted a valid pardon and is no longer under fear of a prosecution. Lastly, I agree that a Court ought not to defer the conviction of one accused merely in order to use his confession against another accused, but that if two accused are in fact tried jointly the confession of one may be used against the other.

Grille, J.C:— I have had the advantage of reading the opinions of Niyogi and Pollock, A.J.Cs and concur. I have only to add that as a consequence of our opinions it is desirable to emphasize the logical corollary that the decision in 16 NLR 9 AIR 1920 Nag 255 , 58 IC 449 , 21 Cr LJ 769 , 16 NLR 9 is incorrect, where it lays down that failure to proceed against a person in the position of Shrawan invalidates the trial.

(After the opinion of the Full Bench the case came before Gruer, J. who delivered the following judgment:)

Gruer, J.:— This is a joint appeal by 14 persons who have been convicted and sentenced to various terms of imprisonment from five years downwards under S. 401, I.P.C 21 persons were originally tried for being members of a criminal gang. Out of these, 16 were convicted by the trial Judge, Mr. Naidu, Magistrate with S. 30 powers, Bhandara. One of the accused, Ghushya Lodhi was discharged at an earlier stage in the trial, and one Dewaji, a confessing prisoner, who received three years' rigorous imprisonment has not appealed. For purposes of reference I reproduce the numbers given to them as accused in the trial. The appellants are: (1) Amdumiyan, accused 1, (2) Maroti, accused 2, (3) Hanya Mahar, accused 4, (4) Budhya Mahar, accused 6, (5) Mansia Mahar, accused 8, (6) Tulsiram Burad, accused 10, (7) Tulsiram Mahar, accused 11, (8) Gaotia Mahar, accused 14, (9) Dasria Lodhi, accused 17, (10) Baoji Dhimar, accused 18, (11) Jhibal, accused 19, (12) Dhondya Lodhi, accused 20, (13) Tulsiram Lodhi, accused 15 and (14) Dadunya Mahar, accused 7.

14. The main branches of the prosecution case are: firstly, evidence about the prevalence of house-breakings in the local area in which the accused could have operated and its fluctuations from time to time; secondly, the statement of the approver, Shrawan Kunbi, (P.W 11); thirdly the recovery of articles from various accused which are said to have been proceeds of various previous house-breakings for which they must be responsible; and fourthly, a body of evidence as to the association of these various appellants with each other.

15. The appeal was lodged as far back as 21st February 1935. On 19th June 1935, Niyogi, A.J.C passed an order referring for the decision of a Bench two questions of law which had reference to the evidence of (1) Shrawan and (2) Dewaji, the confessing co-accused (who has not appealed). Shrawan's position was that the police had refrained from prosecuting him although there seemed to be adequate evidence to justify his production for inquiry and trial, and he had not been tendered a conditional pardon under Section 337 of the Cr PC. So, it was contended that he could not be a competent witness. Similarly, it was contended by the defence that the confession of a co-accused who has pleaded guilty could not under Section 30 of the Evidence Act, be considered against the other co-accused. The finding of the Bench delivered on 1st October 1935 was that both these were competent witnesses although the method adopted for obtaining Shrawan's evidence was to be deprecated and threw some suspicion upon it. Similarly, it was held to be discretionary with the Magistrate to defer conviction of an accused who pleads guilty, and to use his confession against the other co-accused under S. 30, although the Bench also did not think that such a procedure was commendable.

16. Learned counsel for the appellants has summarised his case in appeal under a few heads and it may be convenient to set them out here so that the points to which attention has been directed may be kept in mind. The first contention is that the evidence of the group of witnesses about association is not sufficient to prove that a gang existed. Secondly, it is said that against certain of the appellants, there is no evidence of such association, and some of what there is, is not trustworthy. Thirdly, all the alleged stolen property being recovered more than three years after the alleged house-breakings should not have raised any presumption against the appellants, so as to call for explanation on their part; in any case, they have given explanations which are plausible. In this connexion, too, it is argued that the identification of the property is far from satisfactory and one ought to suspect that the witnesses have seized this opportunity of making dishonest claims. Fourthly, the evidence of Shrawan and Dewaji, although held to be legally admissible, is very doubtful and should be discarded for want of sufficient corroboration. Fifthly, the lower Court has erred in law in using inadmissible evidence including reports made to the police and recorded in police diaries and references to entries in village crime note-books.

17. The record of this case is very bulky, no fewer than 151 witnesses having been examined for the prosecution in addition to 7 for the defence; there were 185 prosecution exhibits and the Magistrate's judgment consists of paras. 96, most of which deal with matters of detail. It will be noticed that out of the appellants, Amdumiya Finjara and Maroti Gond belong to the same village of Khurkhuri, Jhibal Sonar and Dhondya Lodhi to Bhambhodi, Dadunya Mahar and Dewaji Kunbi (who does not appeal) to Kardi, Tulsiram Lodhi and Dasria Lodhi hail from Mandwi, Hanya Mahar (kotwar) comes from Sonoli, Budhya Mahar (kotwar) from Dewhara, Mansya Mahar from Palora, Gaotia Marar from Sarundi, Baoji Dhimar is of Nilajkhurd, Tulsiram Burad of Gangla and Tulsiram Mahar of Jambhora. Amongst the appellants there are 5 Mahars, 3 Lodhis, 1 Gond, 1 Pinjara, 1 Sonar, 1 Marar, 1 Dhimar and 1 Burad. According to the Sub-Inspector Dalipsingh (P.W 1) Tulsiram Lodhi and Dasria are related to each other, and Dadunya Mansya, Hanya, Tulsia and Budhya are all related to each other: the appellants Maroti, Gaotia, Tulsiram Lodhi, Jhibal, Raoji, Tulsia Mahar and Mansia Mahar are previous convicts, convicted of thefts and house-breakings, while Amdumiya, Maroti, Mansya and Baoji are under surveillance.

18. On reference to the map Ex. P-156 filed by Mohammad Galib (P.W 135) it will be found that all the appellants reside in villages within this Tirora station house area, except perhaps Hanya, who resides in Mauza Sandhi which, according to Daleepsingh (P.W 1) is only 4 or 5 miles from other villages within the area. The map shows that from 1923 to 1933 (inclusive) 319 cases of house-breaking in that area came to the notice of the police and 542 cases of theft. The house-breakings increased up to 1928 and thereafter declined from 51 in that year to 12 in 1933. The police attribute this to certain convictions and to action under preventive sections and closer watch on suspects which, no doubt, is a good explanation. The police had also noticed that there was a sameness in the modus operandi in these house-breakings and came to the conclusion that they must have been the work of a gang. Now this is an opinion, but, in such a matter, I am prepared to accept the opinion as relevant under the Evidence Act. From their experience, police officers are able to diagnose the nature of crime just as a doctor is able to diagnose a disease. So their belief that a gang was operating is entitled to respect and on the facts set forth above the Court could come to the same conclusion even apart from this opinion. Statements in police records as to the suspected members of the gang, however, is an entirely different matter and such lists should not have been included in the evidence. Both of these points are dealt with in AIR 1930 Sind 211. AIR 1930 Sind 211 , 1930 Cr C 851 , 126 IC 468 , 31 Cr LJ 1046 , 24 SLR 252

19. The next question is whether the appellants and others formed a gang. Admittedly there is a large body of evidence-showing the association of the appellants one with another in groups of varying size. Details will be found in paras. 11 and 13 of the judgment, and the Magistrate on this evidence finds the point against the appellants supported, as it is, by the confessions of Tulsia, Dewaji, Gaotia, Baoji and Dhondia, who admitted their membership, and by the evidence of Shrawan (P.W 11). The case diaries and the village Crime Note-Books should not have been referred to in this connexion to prove membership of the gang as I have above stated. These entries have, however, been used in a negative-fashion in favour of Ghoshia who is not mentioned in the police papers and so has been discharged.

20. Leaving aside this inadmissible evidence, it has to be considered whether the other evidence is compatible with innocent association. The arguments here addressed are that some of the accused are related to each other and some are of the same caste and they live in neighbouring villages so that their meeting and intercourse with each other is but natural: some witnesses speak to their meeting for gambling which may also be a fact compatible with their not belonging to any gang. It is also pointed out that certain of them were acquitted of this charge, and Hanya Kotwar who, according to Sakhya (P.W 10) had a bidi karkhana, may have been in the habit of meeting in his house other persons interested in making bidis: for instance the two brothers of Dadunya, accused 7. The witness, however, does not say that Dadunya himself made bidis.

21. Learned counsel has discussed in detail these witnesses on association and says that their evidence is weak and proves only ordinary intercourse. Reliance is placed on. 27 Cal 139 (1900) 27 Cal 139 , 4 CWN 97 in which it was held that evidence of bad character or reputation of the accused is inadmissible for the purpose of proving the commission of an offence under S. 401, I.P.C With due respect, I must say that the dictum states only a half truth, as will be seen from the later Bench case in 52 Cal 595 AIR 1925 Cal 872 , 87 IC 925 , 26 Cr LJ 1037 , 42 CLJ 501 , 52 Cal 595 in which it was recognized that evidence of previous convictions of dacoity and of orders under Section 110 of the Cr PC, is admissible for the purpose of proving habit and association in a subsequent trial under S. 401, Penal Code. Thus the fact that certain of the appellants were previous convicts and bound over is not without significance in view of the old adage that birds of a feather flock together. For instance, quite a number of witnesses speak to various appellants meeting at the house of Dewaji, the accused, who confessed his guilt and was sentenced to three years' rigorous imprisonment and has not appealed. As stated in AIR 1923 Lah 327, AIR 1923 Lah 327 , 73 IC 815 , 24 Cr LJ 703 in the absence of direct evidence, the purpose of association may be established by proof of acts from which this may be reasonably inferred. The prevalence of thefts in this area and the rise and fall coinciding with action taken against members of the supposed gang are as much relevant circumstances as are the convictions obtained against certain members. Of course, the possibility has to be kept in mind that certain of these crimes may have been committed by independent persons but the number of offences is too great to be so explained.

22. Reference might be made here to another case quoted, AIR 1923 Lah 666, AIR 1923 Lah 666 , 77 IC 984 , 25 Cr LJ 520 for the proposition that it is not necessary to prove that each individual member of the gang has habitually committed theft or any particular act of theft, once the existence of the gang for such purpose is proved. This case is relevant in deciding the ultimate point whether the various accused were members of the gang. The following passage from the Central Provinces Police Manual states succinctly how association in a common gang and the object of the association of that gang, that is, the habitual commission of crime, can be best proved:

784. … The association of the persons prosecuted in a common gang is best proved by (a) evidence of relationship by blood or marriage among the persons prosecuted, (b) evidence of joint conviction in previous cases of members of the gang, (c) evidence that certain members of the gang were jointly proceeded against or bound over under the preventive sections, and (d) in the case of wandering gangs, proof of entries in the gang register or kotwar's books that the persons proceeded against usually moved about together. The object of the association, i.e the habitual commission of crime, is best proved by (1) evidence of the commission of offences in the area in which the members of the gang reside, (2) evidence of specific offences committed jointly by members of the gang, (3) the recovery of property stolen in a single case from several members of the gang, (4) evidence of the simultaneous absence from their homes of members of the gang coincident with the occurrence of offences in the neighbourhood, (5) evidence of the cessation of crime in the affected area after the arrest of the gang, and (6) joint convictions of members of the gang in previous cases.

23. In the present case it will be seen that under the first head evidence has been led on sub-head (a) and under the second head evidence has been led on sub-heads (1), (3) and (5). The two points, namely, the existence of the gang and its object, are being discussed here together because of the plea that the object was an innocent one. I do not think that conclusion is permissible. Daleepsingh (P.W 1) has shown how the case was investigated and how extensive recovery of property followed on information given by certain of the accused who were arrested. It has also to be noted that the alleged gang is composed of indigent persons whose means of livelihood are nominal or doubtful: see the evidence of Narayan Kotwar (P.W 8), while Sheoram (P.W 94), Tukaram (P.W 95), Kushan (P.W 99), Baldarkhan (P.W 127), Sudam (P.W 13) and Tikaram (P.W 33), gave evidence from which it can be inferred that the alleged members of the gang were idlers and wasters. The last witness mentioned says that they used to talk amongst themselves of committing thefts. He says he did not report this to the thana because Hanya Kotwar was their associate, which, according to the prosecution case, he is. The Sub-Inspector (P.W 1) has deposed that certain of the accused had been disposing of ornaments to sonars: see pp. 9 to 11 of the Paper-Book and Exs. P-49 to 51. The appellants thus involved are Jhibal personally and both Jhibal and Andumiyan through their brothers. There is further the fact that property alleged to be stolen was recovered from accused 1, 4, 6, 7, 10, 11, 14, 15, 17 and 19. This will be discussed later on.

24. There is, too, a good deal of evidence that certain of these persons were seen near the scene of house-breakings either before or after the event, which is quite a relevant fact: see 47 Cal 154. AIR 1920 Cal 87 , 55 IC 994 , 21 Cr LJ 386 , 31 CLJ 192 , 47 Cal 154 For instance, in connexion with an offence dated 4th May 1924 at Mundipur, Tukdya kotwar (P.W 82) saw accused 15, 16, 17, 21, 4 and 5 gambling together. They were disturbed by the two kotwars and ran away and some hours afterwards, the theft took place in Gyaniram's house in the abadi. Other suspicious movements are deposed to by Gowtu (P.W 114) and Maroti (P.W 20): see para. 62 of the judgment; Urkudya (P.W 40), Narayan (P.W 8), Ganpat (P.W 41), Maroti (P.W 113)—whose evidence was corroborated by admissions of accused 11 and 18—Hirva (P.W 18), Atmaram (P.W 30)—see para. 50 of the judgment; Tanbasao (P.W 15)—see para. 52 of the judgment; Bhiwa (P.W 17), Eamchandra (P.W 115) corroborated by confessions of accused 18 and 12 Exs. P-134 and P-133). During the period of the depredations of the gang accused 1 was under surveillance and the following had undergone imprisonment: Maroti, Hanya, two of the three Tulsirams, Gaotia, Dasria, Jhibal and Dhondya. From the above I conclude that there was ample evidence for the conclusion that a gang was in operation, whose object was the commission of thefts in or near this police station area.

25. The prosecution has led evidence about 19 registered and two unregistered cases of house-breaking of the Tirora station house of dates between 1921 and 1933 for which this gang is said to be responsible. A table giving particulars and showing articles recovered and connected with each, case has been given in para. 16 of the judgment under appeal while cases have been discussed individually in paras. 17 to 41. It is argued that the commission of some of these offences has not been properly proved as entries from the village Crime Note Book are inadmissible, and in one case the first information report was not proved although it was an exhibit in another case. I have checked the proof given for the existence of these offences, with the following result: in some cases, for instance, serial Nos. 16 to 19, the original first information reports have been produced and proved. In most of the cases, however, these are, through lapse of time, eliminated, and copies of them entered in case diaries or in kotwars' books have been proved: Serial Nos. 1 to 9. Serial No. 10 is proved by an extract from Part 2 of the Village Crime Note Book. This proof has been supplemented by examining the complainants in these various cases. In one or two instances the original complainants were not available through death or sickness, for example Serial Nos. 7 to 9, but relatives acquainted with the facts have been examined instead. Serial Nos. 6 and 21 are of no use to the prosecution as nothing has been proved regarding the property stolen.

26. Now the Village Crime Note Book is one of the registers prescribed for station houses under S. 621 of the Police Manual and according to S. 636 every cognizable crime committed in a village should be entered in it. As held in 28 NLR 127 AIR 1932 Nag 117 , 140 IC 66 , 28 NLR 127 where there is an official duty cast upon any officer to make an entry and in pursuance of such a duty he makes an entry in his register such entries are admissible 1 in evidence under Section 35 of the Evidence Act. Entries in the Village Crime Note Book are therefore admissible to prove that certain crimes were reported and registered, but, of course, they are no proof against persons named as suspects in them. From the above discussion it will be seen that there is good proof of the commission of these crimes. The next point is whether the various articles recovered have been properly identified, and secondly, whether it was legal to draw inferences against the accused because of their possession of these articles. For the appellants it is urged that they are mostly articles of common daily use and the offences with which they are to be connected are none of them more recent than three years: after such a lapse of time the identifications are doubtful and no presumption under Section 114 of the Evidence Act, properly arises, so that the accused should not have been asked to explain possession, and even if it was allowable to ask them, then they have given some sort of explanation which should be accepted. On the other hand, the Crown contends that these articles are of a nature which admits of satisfactory identification, that they have been so identified, and that the suggestion that the complainants have made dishonest claims for them should be discounted. With regard to S. 114, it is argued that S. 114 is not being used by itself to convict the accused of separate offences; their possession of the ornaments is only one factor amongst others tending to show that they were members of this gang and so it has been properly used.

27. It will be seen from the list in para. 16 of the lower Court's judgment that the articles recovered are numerous. In the succeeding paragraphs the learned Magistrate has discussed the question of identification with discrimination and has not hesitated to reject the evidence with regard to some of the articles as inconclusive. I have gone through the evidence myself and do not find any substantial reasons for coming to a different conclusion. For instance, it is said that article E could not be identified after 12 years by Ganpati (P.W 16). It has, however, been elicited in cross-examination that this witness identifies the wajratik from the fact that his little daughter had broken the knob of one mani behind the tikli in the centre of the ornament by biting at it with her teeth. This is just the sort of small incident which might stick in a man's memory and it has been brought out naturally in the witness-box and the witness has identified this necklace out of four similar ones and he made no attempt to claim the other articles lost, namely, mangalsutra, a gold ring and a gold gharsoli although specimens of these articles also were amongst the property recovered. To take another example, it is said that 233 pysas (art. V-1) recovered in Serial No. 13 of Sonoli are unidentifiable. Individual pysas, no doubt, could not be identified, but the significant facts are the large number of pysas recovered while a large number was stolen; also the pysas are Nagpuri ones and Narayan (P.W 141) says that he had such a collection of them as his savings from work as a coolie in Hiwarkhed. The matter has been fully discussed in paras. 31 and 32 of the judgment and the identification of this find with the stolen property is corroborated from the facts that the pysas were buried and were shown by accused 19 Jhibal who said that they were got in this house-breaking. Further corroboration was forthcoming in the confession of accused 20 Dhondya which has been beheved although retracted. In these cases, too, it will be found that identifications of property have been corroborated by the way in which they were recovered and the confession of the accused themselves and of the approver. I do not think it would be profitable to discuss the other evidence of identification in detail. Similar considerations apply to the whole of it, and even if the evidence regarding a stray article were held to be doubtful, the case, as a whole, could not be affected. Certain cases have been quoted with regard to the applicability of the presumption under Section 114 of the Evidence Act, which no doubt, are good law: for instance, 29 All 138 (1906) 29 All 138 , 4 Cr LJ 436 , 3 ALJ 808 , 1906 AWN 314 and AIR 1926 Lah 272, AIR 1926 Lah 272 , 91 IC 544 , 27 Cr LJ 112 but as I have already indicated a prosecution under S. 401 is of a peculiar nature differing from an ordinary case, in respect of the numbers of accused involved, and the extent of time covered by their operations. There can be no definite rule of limitation barring responsibility for stolen property after a certain time. Each case must be judged in view of the circumstances. Important factors are the number of articles recovered and the way in which information led to the recovery. If it were the case of a stray article only, it might no doubt be unjust to call for an explanation from an accused found in its possession say; after a matter of six months, or a year, but in the present case, it does not stand to reason that such an amount of stolen property could have been innocently acquired by these various accused especially when there are so many other signs pointing to their association in crime. The explanations they have given are clearly weak and halting and have been rightly rejected.

28. I have already pointed out to what extent entries in police diaries and the note books are admissible. The Magistrate has certainly used these entries to an extent which is not permissible, but it seems to me that he does not really base his conclusions on such opinions of police officers about individual accused. In any case it is open to this Court to come to its own conclusion after discarding such inadmissible passages. It remains to consider the bearing on the case of the confessions of various accused and the evidence of the approver. That the evidence of Shrawan and Dewaji has to be viewed with caution has already been noted in para. 3 of this judgment. Learned counsel has referred me to certain cases in which it has been held that the evidence of one approver is no corroboration of the evidence of another. On this point there is a conflict of authority but the latest view of this Court in 31 NLR (Sup) 215 AIR 1936 Nag 103 , 1936 Cr C 605 , 162 IC 430 , 37 Cr LJ 607 , 31 NLR (Sup) 215 is that there ought to be no hard and fixed rule on the point and it depends on the facts of each case. However, I do not think the point is of much importance in the present case as corroboration of the approver Shrawan's evidence has been found in evidence independent of that of Dewaji. As for the confessions of the co-accused Tulsia, Gaotia, Baoji and Dhondya, even though retracted, they can be used against themselves and also under Section 30 of the Evidence Act they can be taken into account against their co-accused. In particular, the confession in Court made by Raoji on 11th December 1933 was not retracted until 18th September 1934 while that made by Tulsia Mahar was not retracted until 14th September 1934 and there is good reason for the Magistrate's opinion in para. 48 of his judgment that these retractions were due to pressure of the other co-accused. I, therefore, think that they can properly be taken into account against the co-accused and that there is no need to use them as corroboration for Shrawan or Dewaji. If the cases of the appellants are now dealt with separately, it will be seen that the appeals of Tulsiram Mahar, Gaotia, Raoji and Dhondya have no chance of succeeding in the light of their own confessions plus the other evidence against them. The subjoined table summarises the witnesses who speak against the various appellants and shows the various articles of stolen property recovered from them.

Name of accused Witnesses who speak against them Articles recovered Amdu Miyan, accused 1 P.W.s 13, 15, 79, 95, 10, 50, 64, 76, 91, 34, 36 E, H, X-1, W Maroti accused 2 P.W.s 64, 76, 84, 62 Nil Hanya accused 4 P.W.s 8, 79, 10, 50, 91 B-1 Budhya accused 6 P.W.s 13, 15, 20, 29, 30, 79, 96, 129, 82, 84 G, A-2, K, 11, P-1 Mansia accused 8 P.W.s 8, 15, 17, 18, 19, 20, 29, 30, 68, 79, 95, 96, 127, 129, 4, 6 Nil Tulsiram accused 10 P.W.s 6, 36 J, D-2, Z-1 Tulsiram Mahar accused 11 P.W.s 8, 13, 15, 17, 18, 19, 20, 29, 30, 68, 79, 94, 95, 96, 127, 129 C-2, H-1 Gaotia accused 14 P.W.s Nil H-2 Dasria accused 17 P.W.s 15, 10, 82, 36 A-1 Raoji accused 18 P.W.s 13, 15, 17, 18, 19, 20, 30, 68, 77, 79, 94, 95, 96, 127, 129, 10 Nil Jhibal accused 19 P.W.s 64, 65 V-1 Dhondya accused 20 P.W.s 10, 64, 76, 91, 36 Nil Tulsiram accused 15 P.W.s 10, 82 E-2, F-2, G-2 Dadunya accused 7 P.W.s 13, 15, 17, 18, 19, 20, 30, 68, 77, 79, 94, 95, 127, 129, 10, 34 I, M-2, G, J-1, Y-1, D-1, E-1, y, Q-1, R-1.

29. Out of the non-confessing appellants it will be seen that there is ample evidence of recovery of articles from Amdumiyan, Hanya, Budhya, Tulsiram Burad (accused 10), Dasria, Jhibal, Tulsiram Lodhi (accused 15) and Dadunya Mahar. Their appeals require no further consideration. No property has been recovered from Maroti (accused 2) but he is a previous convict and was bound over under Section 110 of the Cr PC, in 1929. There is against him the evidence of Sitaram (P.W 64), Banchhoddass (P.W 76), Shamsundar (P.W 84), Bendo (P.W 62) and other proof that he took part in house-breakings at Sarandi, Umri and Dhorwada. He has therefore been rightly convicted. Mansia is another appellant from whom no articles were recovered but no fewer than 16 witnesses speak against him. He has five previous convictions and has been implicated by the co-accused. There seems to be no doubt that he was a prominent member of the gang. The result then of my examination of this complicated case in connection with which I have to acknowledge the valuable assistance given by learned counsel on both sides, is that I find that, apart from the wrongful admission of some evidence, it has been carefully and laboriously tried and that due consideration has been given to the case of each accused. I have been unable to find any substantial reason for holding that the conviction of any one of the present appellants is wrong. It is a matter for congratulation that such a gang should have been brought to justice. The sentences stand in no need of reduction. All the appeals are therefore dismissed. The three appellants Amdu Miyan, Dadunya and Budhia Mahar must now surrender to their bail and serve out their sentences.

P.R/D.S

30. Appeals dismissed.