RAJU, J. :-

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Before we deal with the evidence, it would be desirable to state what the prosecution has to prove in a charge under S. 401, I. P. C., which reads as under :

"Whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of Thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."

As the section clearly mentions, the prosecution has to prove that the accused person charged under S. 401 belongs to a gang of persons and that the gang of persons is associated for the purpose of habitually committing theft or robbery. The word belong implies something more than casual association; it involves the notion of continuity and requires the proof of a more or less intimate connection with a body of persons extending over a period of time sufficiently long to warrant the inference that the person affected had identified himself with the gang the common purpose of which was the habitual commission of either theft or robbery. It would therefore not be sufficient for the prosecution merely to rely upon the fact that an accused person had associated himself with the gang in the commission of only one offence. The prosecution must also prove that the members of the gang were associated for the purpose of habitually committing theft or robbery. It is not necessary for the prosecution to prove the actual commission of any offence of theft or robbery. If the prosecution is able to prove that the common purpose, for which the members of the gang were associated, was to habitually commit the offence of theft or robbery, then the prosecution would succeed even though it does not lead evidence to prove the actual commission of an offence of theft or robbery. But the purpose for which the members of the gang were associated is usually not a matter of direct proof by direct evidence and is generally a matter of inference from the facts and circumstances proved and acts done by the accused. Usually if the prosecution proves that the members of the gang were associated in the commission of several offences of thefts or robbery, an inference may well be drawn that the purpose of the gang was to habitually commit offences of theft or robbery. It is also not necessary that the members of the gang should be members right from the beginning. An accused person may join a gang sometime after the gang had been formed. But if it is proved that a person subsequently joined and belonged to a gang of persons associated for the purpose of habitually committing theft or robbery he would be guilty under S. 401, I. P. C., although he may not have been a member of the gang from the beginning. As already observed, the associations of the members must be for the purpose of habitually committing offences of theft or robbery. The evidence of the prosecution that a person was associated with the gang for the purpose of committing other offences, for instance, offence of demanding or taking ransom or of being in possession of stolen property would not be sufficient to justify his conviction under S. 401, I. P. C.

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2. Evidence of general bad repute is a type of evidence of general bad character. It is provided in S. 54 of the Evidence Act that in criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character in which case it becomes relevant. Exception 1 to S. 54 provides that this section does not apply to cases in which the bad character of any person is itself a fact in issue. Exception 2 to S.54 provides that a previous conviction is relevant as evidence of bad character. It is, therefore, clear that evidence of bad character is reagent only when evidence has been given of good character of the accused and in cases where the bad cha