Syed Shams-Ul-Huda, J.
1. Thirty four persona were placed on their trial on a charge under Section 401 of the Indian Penal Code. The trial was held by a Magistrate specially authorized under Section 30 of the Code of Criminal Procedure. The trial lasted a long time, in the course of which 314 witnesses were examined. The Magistrate acquitted two of the accused and convicted the rest. Three of them were sentenced to more than four years' rigorous e imprisonment, and they have appealed to this Court under Section 408(b) of the Code.
2. The facts of the case are briefly as follows: Proceedings under Section 110 of the Criminal Procedure Code were taken in the year 1917 against Mason Haji and others including two of the appellants, Munshi and Jaban, Mason Haji made a confession which led to an enquiry, and the Local Government appointed M. Mufizur Rahman to verify the confession made by Mason. M. Mufizur Rahman then recorded the confession of Mason at a greater length than it was taken down before, and went on to verify the statements made to him. The accused ware then sent up for trial. On the 14th June 1918 the charge against Mason was withdrawn by the Public Prosecutor under Section 494 of the Criminal Procedure Code and he was discharged. Mason's confession formed the basis. of the present charge. The learned Magistrate has, in an exhaustive judgment, dealt with the whole evidence in the case, and he has considered separately the case of each individual accused. The evidence against each accused has been separately detailed in the judgment, and it is unnecessary to repeat it.
3. Several points have been argued by the learned Counsel who appeared on behalf of the appellants. The first argument is that the Magistrate in discharging Mason did not give judicial consideration to the case, and, therefore, the order of discharge is illegal and has no legal effect. As to this argument I need only say that, upon the reported decisions, it is enough that the accused person had been discharged before he gave his evidence and was not on his trial when such evidence was given. This, in my opinion, is quite sufficient to make his evidence admissible.
4. The next point argued was that the charge was bad having regard to the provisions of Section 234 of the Criminal Procedure Code. It seams to me that there is no substances in this contention. Section 234 lays down that, when a person is accused of more offences than one of the same kind committed within the space of 12 months, he may be charged with and tried at one trial for any number of them not exceeding three. In this case the amused were not charged for more offenses than one. They are charged with one offence only. An offence under Section 401 is a special one. The gist of the offence is association for the purpose of habitually committing theft or robbery and, as pointed out by the Madras High Court in Be Shriram Venkatasami 6 M.H.C.R. 120 : 1 Weir 452, habit is to be proved by the aggregate of acts, and though the charge is a charge of a single offence, the period over which the association extends is often very long; and the longer the period, the batter it is to establish habit. The question of confining the charges to three in the course of a year, therefore, does not arise in the case, and Section 234 has no application.
5. The next point urged is that the accused having been bound down under Section 110 of the Criminal Procedure Code, they cannot again be punished for being members of a gang associated for the purpose of habitually committing crimes under Section 401 of the Indian Penal Coda, This, it is urged, is punishing a man twice over for the same offence. It is clear that a conviction under Section 110 of the Criminal Procedure Code has nothing to do with the punishment of an offence. The order under Section 110 of the Criminal Procedure Code is merely preventive and only bound down the accused to be of good behaviour. It was not punishment for any offence committed by them.
6. It is also urged that the confession of Mason recorded by Maulvi Mufizuir Rahman, and consequently the evidence of verification by that officer, are not admissible. This may be so, bat after making the confession the approver has repeated his story in Court in his evidence on oath, and, therefore, the question of the admissibility of the confession is of no practical importance, and though I am of opinion that the confession was of no value as a piece of evidence, that does not affect the merits of the case.
7. It has next been urged that the evidence of previous conviction for an offence under the Indian Penal Code, or evidence to show that the accused had been previously bound down under Section 118 of the Criminal Procedure Code, was inadmissible. Reliance has been placed on decisions of this Court in Mankura Past v. Queen-Empress 27 C. 139 : 4 O.W.N. 97 and Kader Sundar v. Emperor 13 Ind. Cas. 279 : 16 C.W.N. 69 : 13 Cr. L.J. 39. I think this contention is sound, and the evidence of previous conviction was wrongly admitted, although there may be some doubt whether, if it can be shown that in a previous case a number of the accused persons were placed on their trial together and convicted, such conviction can be used not for the purpose of proving the conviction or proving bad character but for proving association.
8. In my opinion, leaving aside the evidence which I have held to be indmissible, the rest of the evidence is ample to establish the guilt of the appellants. The evidence which has been detailed by the learned Magistrate in his judgment shows that the accused often met together at different places before or after the commission of offences, and have been seen on various occasions carrying away stolen articles or seen together under circumstances that suggested their complicity in thefts and robberies and their association for the purpose of habitually committing such offences. This evidence is very strong: especially against the three appellants. Mason Haji speaks of 74 thefts or burg, laries, out of which the accused Kasem Ali is said to have taken part in 11, Jaban in 31 and Munshi in 11. No reason has been shown why the numerous witnesses, who have deposed on behalf of the prosecution and who have been believed by the learned Magistrate, should be disbelieved by us. 1 may also state that in the appeal that was preferred by the other accused persons, who were sentenced to less than four years' rigorous imprisonment, the learned Sessions Judge has upheld the convection and believed the evidence upon which the conviction of the present appellants is largely based.
9. It has been complained before us that the Magistrate was wrong in placing on the record certain statements prepared by the Public Prosecutor and in making them a part of his judgment. No doubt it is generally not desirable to make documents prepared by parties to a case part of the judgment, but in this case, as I have said, the record was voluminous and the statements do not furnish any new materials, but are simply the result of the examination of the evidence by the Public Prosecutor. If the learned Magistrate had taken those statements on trust there might have been some ground for complaint. But in this case the Magistrate has recorded, and he has done so on every page of these statements, that be has checked them himself. Under these circumstances, I do not think that the accused have been in any way prejudiced by the action of the Magistrate. The convictions and sentences are, therefore, upheld and the appeals are dismissed.
10. I agree with the judgment of my learned brother. As to the tabular statements, I would like further to point out that, though the learned Counsel objected to them as being wrongly incorporated in the judgment, it is dear that they were checked by the Magistrate, and the learned Counsel has not been able to show to us that in any single particular these statements, which are really an epitome of the evidence put in a tabular form, are incorrect. The learned Counsel, though he did not enter into details about individual witnesses, made some comments on the oral evidence in general. As to the approver, his position was that as he had been discharged under Section 494 of the Criminal Procedure Code, his evidence should be expunged from the record. My learned brother - has dealt with that matter, and I agree in holding that after his discharge he was a person competent to be a witne Sections Then as to his evidence in Court and his confessions recorded by Mr. P.C. Chatterjee and M. Mufizur Rahman, no doubt the earlier confessions could have been used by the defence for the purpose of contradicting what the approver Mason said in the course of the trial, and indeed it appears that there are certain discrepancies between his evidence during the course of the trial and his confession before Mr. Chatterjee. It is urged that as approver he is an unreliable witness, and of course no one can be convicted on the uncorroborated evidence of an approver. But here we have before us a large mass of corroborative evidences. There is first the evidence of association. This evidence shows that these accused and others were frequently seen together, specially at hats, and there is evidence that shortly after they were seen together, thefts and robberies used to take place; and as to the three men whose oases are before us, we have a mass of direct evidence against Kasem of robberies in houses, bazars and boats, against Jaban of robberies in houses and boats and against Munsbi of robberies and thefts in shops and boats as well as thefts of cattle. We also have the evidence about Kasem and Jaban being engaged in the same thefts. The evidence shows that several of the accused were originally pilots on river steamers: and after their dismissal from the Steamer Company's service, thefts on river steamers and boats plying on the river and at the riverside bazars became frequent, and in addition to these thefts in boats and bazar the gang also engaged in thefts and robberies in houses and in regular systematic theft of cattle. On the evidence adduced I hold that the existence of a gang for committing thefts and burglaries has been amply proved: further, that the three men before us were members and (I should add) leaders of that gang.