1. This is a jail appeal in a gang case under Section 401, 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. Empress and Dwarka Bunia v. The Empress 27 C. 139 : 4 C.W.N. 97 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 on 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 very doubtful one inasmuch as the case of Empress v. Naba Kumar Patnaik 1 C.W.N. 146 where it was held that previous convictions for dacoity are relevant on a charge under Section 400, Indian Penal Code, provided they are prior to the inception of the charge of belonging to a gang, is cited with approval.
2. Farther 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 habits and it would seem that of such evidence, convictions for bad livelihood would be more cogent than those for isolated thefts.
4. Such evidence must, of course, be weighed. A single instance of theft, for instance, would count for little or nothing. There must be at least two or more cases against the same individual to show habit, but that the evidence of such convictions is inadmissible is clearly against the weight of authority in this Court. We have already cited the case of Empress v. Naba Kumar Patnaik 1 C.W.N. 146. We may proceed to cite four unreported cases that have been laid before us affirming the admissibility of such evidence. The first is a judgment of the same two learned Judges Prinsep and Hill, JJ., in Appeal No. 742 of 1900, decided on the 20th March 1901. There the Judges say: 'It is also shown that several of the prisoners have been convicted of dacoity or other offences against property and that some have been required to give security for good behaviour. These convictions and orders are, of course, evidence only against the particular persons concerned.' Clearly then the decision in Mankura Pasi v. Empress 27 C. 139 : 4 C.W.N. 97 cannot have been intended by the learned Judges to exclude such evidence in gang cases but only in the case then before them, where they appear to have been under the impression that there was no other evidence. Then we have the case of Madhu Dher and others Appeal No. 582 of 1905 under Section 401 decided by Rampini and Mookerji, JJ., where it is said: 'The accused are clearly all habitual thieves. They have been repeatedly convicted of theft or have been called on to give security for their good behaviour and many of them have been tried jointly in these cases'.
5. In two appeals from the same district Nos. 78 of 1909 and 958 of 1910, the learned Sessions Judge in charging the jury cited these two cases at length and told the jury that on this authority the previous convictions were admissible.
6. One of us was a party to each of the orders passed on these appeals, which were summarily dismissed after consideration of the point of law raised, the first by Holmwood and Ryves, JJ., the second by Holmwood and Fletcher, JJ.
7. We do not, therefore, think it necessary to admit these appeals on the point of law referred to us, as the admissibility of these convictions seems to be well-established and the rules as to their weight and value have been clearly laid down. On the merits the findings of the jury appear to be based on overwhelming evidence apart from the previous convictions.
8. The appeals are, therefore, summarily dismissed.