Prinsep and Hill, JJ.
1. The appellants on these two sets of appeals have all been convicted at the same trial under Section 401 of the Penal Code of belonging to a gang of persons associated for the purpose of habitually committing thefts. The evidence shows that they alt came from the same neighbourhood in Oudh, and that they are in many respects associated together. The question, however, raised is whether the evidence proves the particular offence that their association was for the purpose of habitually committing thefts. The circumstances which have led to this case are remarkable.
2. There was a big religious gathering or mela at Gaya early in September last, and the Police were on the look-out to protect the public against thefts committed when crowds were assembled. Lachman Pasi was caught in the act of picking a pocket, and his companion was pursued towards a certain house. That house was surrounded by the police and searched, and in it the appellants were found, including Thakur Basi, who has been identified as the man who was pursued. While the house was surrounded a man was seen trying, to escape by walking on the cornice towards the roof of the adjoining house. The cornice gave way, he fell and was killed instantaneously by the fall. He was the man who had taken in the appellants as lodgers. Some money and various articles were found with the appellants, but none of these articles have been shown to be stolen property. The conviction of the appellants really depends, upon the suspicious circumstances under which they were arrested.
3. There is some evidence of bad character; there are the convictions of some of them for theft, and orders requiring some of them to furnish security for goods behaviour, and there is the fact that they are possessed of little means of subsistence. The reported cases of convictions of this offence are few. In Shriram Venkatasami v. Queen (1871) 6 Mad. H.C. 120, it was laid down that in order to prove an offence under Section 401 of the Penal Code there must be (1) proof of association, (2) proof that such association was for the purpose of habitual'. theft, and it was added that habit is to be proved by an aggregate of acts. In that case the report seems to show there was some evidence, which was accepted' by the jury, that a number of thefts occurred at the same time, and in the same neighbourhood, where the accused were found, from which it was found that the association of the accused was for the purpose described by Section 401 of' the Penal Code; and it was apparently on this ground that, although the learned Judges held that the charge to the jury was defective, they refused to interfere, because it was not shown that the accused had been prejudiced by this defect. In the present case there is no such evidence. We have only the evidence of this one instance of picking a pocket for which Lachman Pasi was arrested.
4. There are two cases, Queen v. Kamal Fukeer (1872) 17 W.R. Cr.,. 50, and Queen v. Moohtaram Sirdar (1875) 23 W.R. Cr., 18, on Section 400 of the Penal Code, a cognate offence, which do not throw much light on the matter now under consideration, except that it was held that there must be evidence that the accused ware members of a gang associated for the purpose of habitually committing dacoity.
5. We have also been referred to the case of Empress v. Naba Kumar Patnaik (1897) 1 C W.N., 146, in which it was considered whether evidence of the previous convictions of Home of the accused of dacoity was admissible for the purpose of proving association for that purpose and bad character. It is unnecessary to repeat the grounds upon which the learned Judges held, on consideration of Section 54 of the Evidence Act, as amended by Act III of 1891,. Section 6, and Section 14 of the Evidence Act, as well as upon the terms of Section 310 of the Code of Criminal Procedure, that such evidence, was inadmissible as evidence of bad character, because we concur with the judgment delivered. It is sufficient to add, in reference to the case now before us, that the character of the accused was not in issue, and that in consequence evidence of such character or reputation is not admissible. Such evidence, we observe, has, in the case before us, formed the main if not the only ground on which the appellants have been convicted, and when that evidence is examined, it will be found to consist of convictions of theft against only a few of the appellants. It would be very unsafe to rely upon the convictions, so as to connect all the appellants with the unlawful association within Section 401, even if such evidence were admissible. And in addition to such evidence we find on the record some orders in which some of the appellants have been required to give security for good behaviour. But even here it is not shown by those orders that the grounds on which they were passed were that these persons were habitually addicted to theft, so as to form a link in the evidence in this case, supposing for the sake of argument, and on such grounds, only, that such orders were admissible as evidence.
6. The case against the appellants, therefore, rests on their being found together at some distance from their houses, that they are all intimately connected with one another, that they are in the habit of visiting melas together, that one of them was arrested in the act of picking a pocket, and that, when they were arrested, many of these gave false names and false addresses. However suspicious the circumstances in this case may be, we think the evidence falls short of what is necessary for conviction under Section 401 of the Penal Code, for, in our opinion, there is no proof that the appellant belonged to a gang of persons associated for the purpose of habitually committing theft.
7. The conviction and sentences are, therefore, set aside, and the appellant must be released.