1. The thirty-nine accused were tried by a jury for an. offence tinder Section 400, Indian Penal Code and were found not guilty and acquitted. Against the acquittal the present appeal has been filed by the Government.
2. Before we can interfere with the verdict of the jury we must under Section 423 (2) of the Criminal Procedure Code, be satisfied that the verdict is erroneous owing to the misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him. The latter alternative may be left out of account in this case as there is no contention that the jury misunderstood the law as laid down by the Judge,
3. In a case under Section 400, Indian Penal Code the prosecution is bound to prove that the accused belonged to a gang which was consciously associated for the specific purpose of habitually committing dacoity. The associating and the purpose of association may be proved by the direct evidence that the accused or the accused and others met and determined to join together for the purpose of habitually committing dacoity. Such direct proof will, however, be rarely forthcoming and it is not contended that there is such proof in the present case. In the absence of direct evidence the associating and the purpose of association may be established by proof of facts from which they may be reasonably inferred, and it is such proof that the prosecution claims to have given. Evidence has been adduced to show:
1. That the accused with one exception are more or less closely related.
2. That the accused move about in batches have been arrested in batches and are absent from home in. batches.
3. That the accused commit dacoities in a uniform manner.
4. That the accused in batches commit crimes other than dacoities.
5. That the accused have rescued one another from lawful custody.
6. That the accused have been seen under suspicions circumstances.
7. That the accused have been concerned in a large number of dacoities.
4. With regard to (3) I agree with the Sessions Judge that there is nothing to show that the manner in which the accused are said to have committed dacoities is peculiar to them.
5. With regard to (4) it may at least be doubted whether evidence to show that the accused had committed crimes other than dacoities would be relevant to the charge. Such evidence is really evidence of bad character and is excluded by Section 54 of the Evidence Act for the bad character of the accused is not a fact in issue in the present case.
6. With regard to (6) the prosecution has no ground, as to the manner in which the Sessions Judge placed the matter before the jury. He rightly stated that if members of the gang were found in groups under suspicious circumstances immediately before or after a dacoity evidence to that effect would be relevant.
7. With regard to Nos. (1) (2) and (5) it has to be remarked that the accused are Kora-chas. Korachas are a wandering tribe and even when engaged in lawful avocations they wander about in groups. Being members of such a tribe and being more or less united by ties of blood, it is not to be wondered at that they should rescue each other from custody when occasion arose.
8. The evidence as to Nos. (1) (2) and (5) has thus much less weight than that it might otherwise have and the Sessions Judge was perfectly right in pointing this out to the jury.
9. Then remains No. (7). If there were sufficient reliable evidence that the accused or groups of them had been concerned in a large number of dacoities in a comparatively short space of time, it might not improperly be inferred from that evidence alone that they were members of a gang associated for the purpose of habitually committing dacoity. In a case like the present where there is no direct proof of any associating for the purpose of habitual dacoity, such evidence is absolutely essentials The charge is drawn up as if the gang had been in continuous existence from 1877 to 1907. The Public Prosecutor preferred, however, to endeavour to show the existence of a gang from 1897 from which year dacoities are said to have been more numerous He complained of the manner in which the evidence regarding these dacoities had been presented to the jury, and contended that the Sessions Judge in addition to pointing out the dacoities in which each of the accused was said to have been taken part, should have also stated to the jury, of the accused who were said to have been concerned in each dacoity so as to bring out the feature of association. We, therefore, asked the Public Prosecutor to deal with the dacoities in the latter manner. He did so with the result that our conclusion was that if the evidence had been so placed before the jury they would probably have been unfavourably impressed rather than otherwise. The number of dacoties said to have been committed by some or others of the accused from 1898 to 1906, is 21. In 12 of these the only evidence to implicate any of the accused is the evidence of the approvers and it is admitted that, save in two of these 12 cases it was not even suspected at the time the dacoities took place that Korachas were concerned. In another case the only corroboration of the evidence of the approver is the statement of the Prosecution witness No. 94 that the 9th accused was one of the dacoits. The dacoity was in 1900. It does not appear that the witness saw the 9th accused again before 1907 and little weight can be given to the identification. In another alleged dacoity only the 5th accused was convicted and not for dacoity but for robbery. In another dacoity accused Nos. 1, 2, 4 and 5 wore arrested but discharged while the 35th accused was convicted. A number of other accused wore said by the approver to have been concerned but as to them there is no corroboration. In another dacoity accused Nos. 16, 17, 20, 21, 22, 24, 38 and 8 were arrested but were acquitted. In a dacoity of 1902 accused Nos. 1, 6, 7, 18, 19, 21, 22, 26 and others were said by the approver to have taken part and evidence of identification of the above accused was given by the Prosecution witnesses Nos. 83, 84, 85 and 86. These witnesses do not seem to have seen the accused after the dacoity till 1907, and we should certainly hesitate to accept the identification as reliable. In the remaining 4 dacoities which were between 1903 and 1906 there is some evidence of identification to support the evidence of the approver. In one of these cases 7 of the accused, in another 4, in another 7, and in the remaining 1, two of the accused are said to have taken part. There is also evidence that accused Nos. 1, 2, 4, 9, 15, 20, 23, 27, 31 and 35 have been once convicted for dacoity while accused Nos. 10 and 24 have been convicted twice and accused No. 30, three times.
10. I do not think there is such proof of complicity of the accused in dacoities as to justify the inference that they belong to a gang associated for the purpose of habitually committing dacoity. The jury who were properly directed as to how they should deal with the evidence of the approvers found that the evidence as a whole did not establish the existence of a gang of persons associated for the purpose of committing dacoity habitually and I think that was a proper verdict on the evidence.
11. I would, therefore, dismiss this appeal.
12. I entirely concur in the judgment of my learned brother Mr. Justice Munro and have little to add on my own account.
13. Section 400, Indian Penal Code, appears to postulate the existence of a definite gang operating for a definite period and the object of the section would seem to be to provide for the punishment of those proved to be members of such a gang and against whom evidence is not forthcoming to convict them of specific offences of dacoity.
14. It seems to me that the Sessions Judge detected the real flaw in the prosecution and that under his dictum the jury brought in a correct and proper verdict. The evidence did not establish the existence for over 30 years of any such gang as the section contemplates.
15. Even if the evidence of the three approvers could be entirely relied on, it proves only that Korachas as a class are addicted to crimes against property and periodically more especially in seasons of scarcity, gangs that would probably be punishable under Section 400, Indian Penal Code, were formed which set out on expeditions of longer or shorter duration and then dispersed. As pointed out by the Sessions Judge each such gang must be separately dealt with if it is intended to apply Section 400, Indian Penal Code.
16. The verdict was right and the appeal must be dismissed.