JUDGMENT
Divatia, J.
1. After setting out the facts of the case His Lordship proceeded as follows :
The main point urged by Mr. Jahagirdar on behalf of the appellants is that the learned Judge below seriously misdirected the jury in asking them to accept the part of the confessions of the accused consisting of statements about their having committed several acts of sabotage along with other persons who are not accused in this case, and to accept the Police Sub-Inspector’s evidence who produced a register of crimes in which some of the acts admitted by the accused in their confessions had been noted. Mr. Jahagirdai has contended that this evidence is inadmissible in law and the misdirection consisted in asking the jury to rely upon this part of the evidence by way of corroboration of the .retracted confession of the particular offence with which they were charged in the present case. To give one instance of what the accused stated in their confessions, accused No. 1 began by saying that he and one Kotwal, who is now alleged to have been shot by the police after this offence was committed, became acquainted with each other, and thereafter they, along with other persons, thought of committing acts of sabotage by stopping railway trains, cutting railway lines, pulling out rails and cutting electric posts. Then he refers to the meetings of different persons from time to time at different places for the purpose of committing those acts. The persons who are alleged to have met together on different occasions are some of the accused in the present case, and several others who have no connection with the present offence. After stating the various acts of sabotage committed by them at different places, accused No. 1 narrated the circumstances in which the present crime was committed by them on December 4, 1942. The confessions of the other accused are also to the same effect. They mention different acts done by different persons from time to time. Thus it appears from the confessions that different persons assembled at different times for the purpose of committing acts of sabotage at different places, and it is not the prosecution case that all these acts and the present offence were parts of a conspiracy to which the accused were parties. It is therefore contended on behalf of the accused that there being no charge of conspiracy with common intention to do the previous acts referred to in the confessions, the alleged admission of those acts in the confessions ought to have been ruled out by the learned Judge, and only that much of the confession ought to have been exhibited as related to the particular offences with which th|e accused were charged. In our opinion, this contention is well founded and the alleged admissions of the accused about the previous acts in their confessions are inadmissible in evidence with the result that the case for, accused Nos. 1 and 8 who have been held: guilty by the jury has been seriously prejudiced by the learned Judge’s reference to them in his charge. These statements do not amount to confessions so far as this trial is concerned. The word “confession” has not been defined in the Indian Evidence Act, but in a recent decision of the Privy Council in Narayana Swami v. Emperor . their Lordships have described what a confession really is. They say (head-note) :
A confessdon must either admit in terms the offence; or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which! caused a death with no explanation of any other man’s possession. A confession, under the Indian Evidence Act, does not mean a statement by an accused ‘ suggesting the inference that he committed’ the crime.
2. It is clear from this description of what a confession is, that it must relate to the particular crime with which the accused is charged, and that any admission which is not connected with any of the ingredients of the offence charged would not amount to a confession. It must, therefore, follow that there being no charge of conspiracy in the present case, the alleged admissions of previous acts done by each confessing accused, even assuming that they suggest the inference that he committed the present offence do not amount to confessions.
3. It is true that a statement made, by the accused may be admissible in evidence as an admission even though it does not amount to a confession, and the next point is whether the alleged statements amount to admissions. An admission, under Section 17 of the Indian Evidence Act, is a statement, oral or documentary, which suggests any inference as to any fact in issue! or relevant fact, and which is made by any of the% persons, and under the circumstances, mentioned in the succeeding sections. In absence of a charge for conspiracy these statements are not facts in issue in the present case, because the accused are charged with the commission of this particular crime only and nothing else. The statements, therefore, can amount to admissions only if they suggest any inference as to any relevant fact. Now, the term ” relevant” has been defined in Section 3 as follows :-
One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to’ in the provisions of this Act relating to the relevancy of facts.
4. The statements about the previous acts would, therefore, be relevant if they are connected with the crime, with which the accused are charged, under any of the appropriate sections of the Indian Evidence Act. The only sections which may have reference to such sort of connection are Sections 9, 11, 14 and 15. Under Section 9 :
Facts necessary to explain or introduce a fact in issue or relevant fact,’ or which support of rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact; happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.
It cannot be said that the previous acts of sabotage which some of the accused committed along with other persons come within this section in the absence of a charge for conspiring to do all these acts and the present offence as part of one design. Section 9 has therefore no application. Under Section 11 facts, which are not otherwise relevant, would be relevant-
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
This section has been construed by our Court in Reg. v. Parbhudas (1874) 11 B. H. C. R. 90. West J, observed in his judgment that Section 11 of the Indian Evidence Act was, no doubt, expressed in terms so extensive that any fact which can, by a chain of ratiocination, be brought into connection with another, so as to have a bearing upon a point in issue, may possibly be held to be relevant within its meaning. But in his opinion the Legislature had not intended that the section should be applied in a very extensive manner as was clear from the illustrations to that section, and that the law meant to be laid down was not meant to go beyond the English law of evidence. The learned Judge referred to various English cases on the point, one of which was the case of The King v, Ellis (1826) 6 B. & C. 145. where it was laid down (p. 147):
Generally speaking, it is not competent to a prosecutor to prove a man guilty of one felony by proving him guilty of another unconnected felony ; but where several felonies are connected together, and form part of one entire! transaction, then the one is evidence to show the character of the other.
5. After referring to various other decisions it was held that Section 11 rendered inadmissible the evidence of one crime (not reduced to legal certainty by a conviction) to prove the existence of another unconnected crime, even though it be cognate. In our opinion, these observations can be well applied to the facts of the present case, because the alleged acts of sabotage and dacoity committed by some of the present accused along with others at different places are not parts of one transaction according to the charge laid against the accused.
6. Neither Section 14 nor Section 15 would also apply to the alleged admissions. Under Section 14 facts showing the existence of any state of mind, such as intention, knowledge, etc., are relevant, when the1 existence of any such state of mind or body or bodily feeling is in issue or relevant. This section would not apply to the present case because what is relevant here is whether any of the accused committed the dacoity with which they were charged and not whether they committed the offence with any particular intention or state of mind. Illustration “O” in this section says that where A is tried for the murder of B by intentionally shooting him dead, although the fact that A on other occasions shot at B was relevant as showing his intention to shoot B, the fact that A was in the habit of shooting at people with intent to murder them was irrelevant. Section 15 also would not apply because it deals with the question whether an act was accidental or intentional, or done with a particular knowledge or intention and it is in that case alone that the fact that such set formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. There is no question here as to whether the offences with which the accused are charged were accidental or intentional or whether they were done with a particular knowledge or intention. The only question is whether the accused committed the offence of da-coity at all. In our opinion, therefore, on the relevant sections of the Indian Evidence Act the statements about previous acts would not amount to admissions in law. But there are some authorities also which support this view.
7. The leading authority is the full bench decision of the Calcutta High Court in Emperor v. Panchu Das (1920) I.L.R. 47 Cal. 671, F.B. In that case the question was whether the previous acts which were alleged to have been committed by the accused consisting of paying visits to the houses of three prostitutes followed by theft of their ornaments would be admissible in a case where the accused was charged with the murder and theft of ornaments of another prostitute. It was held that the evidence that the accused had similarly introduced himself as a wealthy person, on previous occasions! to three other prostitutes, that he introduced one person as his durwan, that both visited the women and suddenly disappeared and that their disappearance was followed by discovery, by the women, in each case, of the loss of their money or ornaments, was not admissible) under Section 9, 14 or 15 of the Indian Evidence Act in the subsequent case where he was charged with the offence of murder, robbery, theft, etc. relating to at different woman. As observed by Mookerjee J. (p. 692):
…the gist of the Section 15 is that, unless there is a sufficient and reasonable connection between the fact to be proved and the evidentiary fact, that is, unless there is in substance same common link, they cannot form a series … each of the subsequent occurrences [of which evidence was given] had its own’ special features so that they could not properly be deemed similar occurrences.
8. It was held also that Section 14 was not applicable as the evidence of the alleged similar occurrences did not show the state of the mind of the accused towards the murdered woman. In coming to that conclusion the learned Judges relied upon the decision of our High Court in Reg. v. Parbhudas, which I have referred to above, as well as various cases under the Indian as well as the English law. One of the cases relied upon was the decision in Empress v. M.J. Vypoory Moodeliar (1881) I.L.R. 6 Cal. 655 where Sir Richard Garth C. J. pointed out that Section 14 applied to that class of cases where a particular act was more or less criminal or culpable according to the state of mind or feeling of the person who did it, and that the Court must be very careful not to extend the operation of the section to other cases, where the question of guilt or innocence depended upon actual facts and not upon the state of a man’s mind or feeling. It was further observed that (p. 660):
We have no right to prove that a man committed theft or any other crime on one occasion, by shewing that he committed similar crimes on other occasions.
9. In the present case also there is no question about the state of the accused’s mind at the time when they committed the alleged offence, but the only question is whether they committed the offence with which they were charged. Evidence of a collateral offence cannot be received as substantive evidence of the offence on trial, though under Section 14 evidence may be given of intention and like matters where the factum of such intention or like matters was relevant. The Lahore High Court has also held in Pritchard v. Emperor [1928] A.I.R. Lah. 382. following the full bench decision of the Calcutta High Court, that neither under Section 14 nor Section 15 can the evidence of facts similar to but not part of the same transaction as the main fact be received for the purpose of proving the occurrence of the main fact, which must be established by evidence directly bearing on it.
10. It is further held that Section 14 is wholly inapplicable to a case where the state of mind or feeling of the accused is not a fact in issue or a relevant fact, and the guilt or innocence depends on proof of actual facts. The English law as laid down in the leading case of Makin v. Attorney-General for New South Wales [1894] A.C. 57 is also the same. It is held in that case that evidence tending to show that the accused has 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 him. In the present case, as I said before, there is no question of design or accident, because it is not the prosecution case that these twelve accused had any design in committing a particular kind of offences along with others.
11. It was urged on behalf of the prosecution that the evidence of previous acts is admissible in the present case to prove the common intention of the; accused, and that Sections 14 and 15 as well as the authorities referred to “above render the evidence of intention admissible with regard to similar offences. But the charge against the accused has no, reference to their intention to commit a series of crimes in furtherance of a common object. The charge only mentions a common intention of these particular accused to cut pylon No. 330, and that the offence of dacoity was committed in furtherance of that common intention. It is therefore clear that these twelve accused are charged with the common intention of committing this particular crime only and the charge has, therefore, no reference to any offence which might have been committed by some of the present accused along with other persons. In our opinion, therefore, evidence of the alleged previous acts amounting to offences committed by some of the accused along with others is not admissible in the present case which refers to the commission of a particular crime alone. The reference to the alleged previous acts is in the confessions of the various accused, and that evidence is really prosecution evidence as the prosecution seeks to rely on the alleged admissions. The principles laid down in the cases which I have referred to above would, therefore, apply to these statements in the accused’s confessions.
12. There is no doubt, in our opinion, that the reference made by the learned Judge in his charge to the jury to these previous acts has seriously prejudiced the accused’s case and amounts to a misdirection. This misdirection is by itself sufficient to set aside the convictions of accused Nos. 1 and 8 which are based on the verdict of the jury. The learned Judge has also referred in his charge to an alleged act of sabotage done by one of the accused along with other persons on December 21, 1942, i.e. after the commission of the present crime, and the prosecution has examined two witnesses, exhibits 30 and 37, to establish that subsequent act. These witnesses have been relied upon by the prosecution to corroborate the confessions of accused Nos. 4, 6, 7 and 9 with regard to the subsequent incident for the purpose of proving the offence with which they are charged. The same principle which would apply to the evidence of unconnected previous incidents would also apply to an unconnected subsequent incident, and that is also what is held in Dargahi v. Emperor (1924) I.L.R. 52 Cal. 499, 507. In our opinion that evidence also should be regarded as inadmissible and the reference to that evidence in his charge amounts to a misdirection. These misdirections are sufficient to set aside the convictions of accused Nos. 1 and 8 and direct their retrial. As regards the other accused, as I observed above, the learned Judge disagreed with the jury but he was not inclined to make a reference to this Court as he thought that he could punish them for the offence under Section 332 read with Section 34 after disagreeing with the jurors as assessors. He convicted most of them relying, along with other evidence, on the alleged admissions of previous acts. Their convictions must also be set aside. Mr. Jahagirdar urged that in the case of some of these accused there is no reliable evidence at all if the alleged admissions are excluded and that they should be acquitted here and the case of the remaining accused only may be sent back for retrial. We have therefore heard Mr. Jahagirdar on that point.
13. After dealing with this aspect of the case His Lordship concluded :]
14. The result, therefore, is that the convictions as well as the sentences against accused Nos. 4, 6, 7 and 9 are set aside and they are acquitted of the offence of which they have been convicted and it is directed that they should be discharged. Accused Nos. 1, 5, 8 and 12 should be retried for the offences with which they wee charged in the lower Court or for such offences with which they may be charged if it is found necessary to alter the charge.
