JUDGMENT : TUDBALL, J. The thirty-two appellants have been convicted by the Sessions Judge of Jhansi of an offence under section 401, Penal Code, 1860, namely, that they belong to a wandering gang of persons associated for the purpose of habitually committing theft or robbery. The appellants are eight men and boys and twenty-four women and girls. They call themselves Karnataks, but apparently are Kanjars or Berias, a class of persons which has been accustomed from time immemorial to wander about in gangs over the country side living as best as they can, the women dancing and singing in public. To establish the case against the present appellants the prosecution attempted to show (1) that wherever this gang went, the adult males usually kept themselves out of sight, while the women and children remained in camp; (2) that two of the women had been previously convicted of offences against property; (3) that from the beginning of January up to 10th February, 1910, while this gang was wandering about in British territory there were some 13 cases of offences against property committed in the neighbourhood of their encampment; (4) that on the 7th of February, 1910, upon certain information the Sub-Inspector in charge of a certain police station, taking a body of men with him, went into some jungle and came upon a body of some ten or twelve men; that the latter at first attempted to escape and then turned upon their pursuers and resisted their arrest; that three of them, Ajita, Hukum Singh and Jensi Lal, were arrested at the time, and two others, Bulaki and Hindupat, were recognized; that eight bundles were left behind by these men containing various articles, some of which are said to have been identified by those persons whose property had been stolen between 4th January and 7th February; (5) and that the camp was searched on the 10th of February when a ring and one other article were discovered which are also said to be stolen property. The cases of theft and burglary which are alleged to have occurred while the appellants were encamped in British territory, are as follows:—On the night of 4th January, 1910, Amir Shah's house is said to have been robbed. On 6th January, two persons, Saru Ram and Musammat Sukhrani Dhobin were robbed. The cases of theft and burglary which are alleged to have occurred while the appellants were encamped in British territory, are as follows:—On the night of 4th January, 1910, Amir Shah's house is said to have been robbed. On 6th January, two persons, Saru Ram and Musammat Sukhrani Dhobin were robbed. On 7th and 8th January, the house of Ram Chander pointsman is said to have been entered and property taken, and one Mr. Clarke, an employee of the railway is said to have lost 4 fowls. On 10th and 11th January two persons, Raghunath and Saru Lal, are said to have been burgled. On 23rd January two persons, Lalla and Ramoli, are alleged to have lost a goat each and to have come upon a gang of men in the jungle who were consuming the flesh of those animals. On the night of 6th February, Barai Barhai of Belmau, is said to have his house burgled. On the night of 8th February, Nanna of Bamrauli lost his bullock, and on the night between 9th and 10th February three burglaries are said to have been committed in the town of Moth. In addition to these facts evidence has been adduced to show that this gang in 1909 was in the Gwalior State and committed a riot and attacked the police station, and that for three years at least the gang settled down in the Dattia State, and was finally turned out by the Maharaja. It seems to me that even if we accept all these facts as established, it is impossible to hold that the offence contemplated in section 401 has been established. For the purposes of that section it must be clearly established either by direct evidence or by facts from which the inference may be legally drawn that the members of the gang have combined or come together for the purpose of habitually committing theft or robbery. It is quite clear that the class of persons whom we are now considering does not primarily combine or associate for that purpose. Originally these gypsis no doubt combined in gangs for the purpose of self-protection. They have been wanderers for ages. The fact that many of them are dishonest and do commit thefts and other crimes is not in itself sufficient to show that the purpose for which they have combined is to habitually commit theft. Originally these gypsis no doubt combined in gangs for the purpose of self-protection. They have been wanderers for ages. The fact that many of them are dishonest and do commit thefts and other crimes is not in itself sufficient to show that the purpose for which they have combined is to habitually commit theft. The present case is very similar in aspects to the case of Dakharan v. King Emperor, reported in 70 O.C. 163. In that case there was a party of Doms wandering over the country side first as the present appellants were doing. There is this difference that no stolen property is alleged to have been found in their possession. In the judgment of that case there are the following remarks:— They are associated and wander about in their ordinary way of life, and it cannot be said to be proved that the primary purpose of their association was the commission of theft. In a case under the analogous section 400, The Public Prosecutor v. Bomgiri Pottigadu, [1908] I.L.R. 32 Mad. 179, it was remarked:— In a case under section 400, Penal Code, 1860, the prosecution is bound to prove that the accused belong to a gang which was ‘consciously’ associated for the purpose of habitually committing dacoity. 2. In the present case 24 of the appellants (who are women and children) and the two boys, Rup Singh and Kana, and the man Bahalia, were in the camp which was situated exactly opposite the police station. 3. The mere fact that these women and children were living with adult males of the gang is insufficient to enable the Court to hold that they were associated with their husbands and parents for the purpose of habitually committing theft. It is quite clear in their cases that their association primarily was for a very different object and not that of theft. 4. In respect to the other appellants Ajita, Bulaki, Hindupat, Hukam Singh, and Jense Lal, it may argued that they were found in a gang with other men; that stolen property was found in their possession, and that wherever the gang had been, thefts and burglaries had been committed, and that therefore, these facts are sufficient to enable the Court to draw the inference that they at least were associated together for the purpose of habitually committing theft. 5. 5. There is in addition to the above facts the evidence of one man, named Mula (of the same class as the appellants, though not a member of their gang). This witness's evidence is to the effect that he often visited this gang, stayed with them, and has joined and has has joined with various members in the commission of thefts and burglaries and dacoits. It is quite evident from the judgment of the lower court that very little reliance can be placed upon this man's evidence. 6. [His Lordship then discussed the evidence and proceeded.] 7. It seems to me that section 401 was never intended to apply to cases of the present kind, unless it could be clearly established that these people deliberately and intentionally joined together for the common object mentioned in the section. It is difficult to conceive that a child of ten or eleven years of age (and there are such amongst the present appellants), deliberately and consciously associated with its parents and other relatives for such a common object. In my opinion the prosecution of the present appellants under this section in the circumstances of the present case was entirely misplaced and they ought to have been dealt with otherwise. I admit the appeals, set aside the convictions and sentences, and order the release of all the appellants.