Bombay High Court
Emperor vs Haji Sher Mahomed on 21 December, 1921
Equivalent citations: (1923)25BOMLR214, AIR 1923 BOMBAY 71, AIR 1923 BOMBAY 65
JUDGMENT Fawcett, J.
1. There are twenty-four accused persons before the Court charged with belonging to a gang of persons associated for the purpose of habitually committing dacoity under Section 400, Indian Penal Code. It is sought to prove against one or more of these accused that they have been previously convicted for the offence of theft, or have been ordered to give security for good behaviour on the ground of being habitual thieves, &c., under Chapter VIII of the Criminal Procedure Code. The question is whether evidence of such previous convictions or orders is admissible against them under Section 14 of the Indian Evidence Act. There is no doubt (1) that, in the case of a person accused under Section 400, Indian Penal Code, a previous conviction of dacoity is admissible under Section 14, as held in Empress v. Naba Kumar Patnaik (1897) 1 C.W.N. 146 150 and (2) that a previous conviction of theft, or an order to give security on the ground of being an habitual thief, is admissible against him in a case where he is charged under Section 401, Indian Penal Code, i.e., belonging to a gang of persons associated for the purpose of habitually committing theft or robbery, as held in Bhona v. Emperor (1911) I.L.R. 38 Cal. 408 and Emperor v. Tukaram Malhari . In these two cases such evidence clearly falls under Section 14 of the Indian Evidence Act, as showing a disposition on the part of the accused towards the particular conduct alleged against him in the charge, namely, a habit of committing (1) dacoity and (2) theft But, if in order to establish a habit of committing dacoity you rely on evidence that the accused had previously committed thefts, you no doubt produce evidence which may show a disposition towards conduct of a similar description to that in question, but not of the exact description in issue. Dacoity is equivalent to (a) theft plus (b) more offenders than four plus (c) violence, and elements (b) and (c) are wanting. A person may be a habitual surreptitious night thief, but this goes very little way towards showing that be has a disposition towards dacoity. It is little, if anything, more than evidence of bad character which is excluded by Section 54 of the Indian Evidence Act. This lays down the general rule that ordinarily the fact that the accused person has a bad character is irrelevant, and it is only if the evidence now sought to be put in falls under Section 14 that it escapes this general rule. Explanation 1 to Section 14 lays down that a fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question, and illustrations (o) and (p) to the section illustrate what is meant thereby. If in illustration (p) the word "did" is substituted for the word "said" I think it clearly shows that the evidence in question is irrelevant. It will then run as follows:
A is cried for a crime:
The fact that he did something indicating an intention to commit that particular crime, is relevant.
The fact that he did something indicating a general disposition to commit crimes of that class is irrelevant.
(It may be noted that there is a mistake in repeating this illustration in Ameer Ali's Evidence Act, which has persisted even to the last Edition, namely, the word "relevant" is wrongly given in the last clause instead of the word " irrelevant.")
2. In a case like the present the offence for which the accused are being tried is the particular one of belonging to a gang of dacoits; and simple theft or bad livelihood, in which the order for giving security is based on evidence merely that the accused habitually commits thefts (as opposed to dacoity and possibly robbery) is not, I think, evidence indicating an intention to commit the particular crime of which the accused is charged. It at most merely indicates a disposition to commit crimes of a similar class, though I think it is very doubtful whether dacoity must not be put in a higher class than theft, so that the evidence would not even fall within the description mentioned in the last clause of illustration (p). Therefore, I think that Section 14 does not permit of this evidence being admitted. The authorities also support this view. In The Public Prosecutor v. Bonigiri Pottigadu (1908) I.L.R. 32 Mad. 179 it was held that in a case under Section 400, Indian Penal Code, the evidence of the commission of other offences than dacoity is only evidence of bad character and is inadmissible under Section 54 of the Indian Evidence Act. The remarks in Emperor v. Debendra Prosad (1909) I.L.R. 36 Cal. 573, 584 and in Emperor Panchu Das (1920) I.L.R. 47 Cal. 671, 692-696 support the view I have taken. In the last-named case even the dissenting Judge, Chaudhuri J., at page 709 says:
No doubt, evidence tending to show that the accused have been guilty of criminal acts other than those covered by the indictment is not admissible, unless upon the issue whether the acts charged against the accused were designed or accidental, or unless to rebut a defence otherwise open to them.
3. I hold, therefore, that the proposed evidence is inadmissible except in the case where the accused himself has given evidence that he has a good character, in which case it is admissible under Section 54.
4. During Police inquiries into the present case the accused No. 16, Mahomed Ubhayya, was questioned by an Inspector of Police, Mr. Satham, regarding a bundle of ammunition which he produced. He is said thereupon to have made a statement that it had been given to him by Mahomed Jaffer and Mahomed Karim and it is sought to put in evidence this statement to the Police Inspector. The question is whether it is not excluded as being a confession made to a Police Officer under Section 25 of the Indian Evidence Act. Mahomed Jaffer is accused No. 11, and Mahomed Karim was accused No. 10, but has since been made an approver. Mahomed Karim has given evidence that this particular ammunition belonged to the gang of dacoits, of which he and accused Nos. 11 and 16, with others, were members.
5. Mr. Velinkar, for the Public Prosecutor, argues that this statement does not amount to an admission of an incriminating circumstance so as to constitute a confession within the meaning of Section 25, and he relies upon the case of Emperor v. Mahomed (1909) 5 Bom. L.R. 312 where a statement made by an accused to a Police officer that a box, which he was found carrying away at night, belonged to him, was held to be admissible, inasmuch as it did not amount directly or indirectly to an admission of a criminating circumstance. There is of course no doubt that a statement of a self-exculpatory kind, which, if true, is in favour of the accused, is admissible, in spite of the fact that, if it is shown to be false, it raises an inference of guilt : and a distinction must be made between such statements and statements which, although intended to be made in self-exculpation and not as a confession, nevertheless contain an admission of an incriminating circumstance, on which the prosecution relies. Instances of the latter class of statements are to be found in Imperatrix v. Pandharinath (1881) I.L.R. 1 Bom. 34 and Queen-Empress v. Javecharam (1894) I.L.R. 19 Bom. 363. The leading cases on the subject are collected in the judgment of Carnduff J. in Barindra Kumar Ghose v. Emperor (1909) I.L.R. 37 Cal. 467, 520-523 and I agree with his conclusion that it is for the Court to decide, according to the particular circumstances of each case, whether a statement of an accused amounts to a confession or not. In this particular case the statement of accused No. 16 that Mahomed Jaffer and Mahomed Karim had given him the ammunition is clearly of an incriminating kind, inasmuch as both Mahomed Jaffer and Mahomed Karim are alleged by the prosecution to have been members of the same gang of dacoits as the one to which the accused No. 16 is charged with having belonged. The mere fact that the accused in making this statement may have intended it to be self-exculpatory is insufficient. The real test is what in its effect : and having regard to the circumstances I have mentioned, there can I think, be no doubt that it is a statement which can properly and would presumably be relied upon by the prosecution as a true statement and an admission that he was associated with members of the alleged gang of dacoits.
6. The case is in some respects similar to that of Queen-Empress v. Javecharam (1894) I.L.R. 19 Bom. 363 where a statement of one accused that he had received certain property, which was alleged to have been stolen, from his co-accused was held to be inadmissible as being an admission of a criminating circumstance, on which the prosecution evidently relied.
7. Following this and similar rulings I hold that the statement in question is inadmissible under Section 25 of the Indian Evidence Act.