JUDGMENT : R.N. Misra, J. - The sixteen appellants have been convicted under section 401 of the Indian Penal Code by the learned Additional Sessions Judge, Bhadrak. Appellant No. 1 has been sentenced to rigorous imprisonment for seven years, appellants 2 to 5 have been sentenced to rigorous imprisonment for six years and the remaining appellants have been sentenced to rigorous imprisonment for five years. According to the prosecution case, the appellants along with 12 others belonged to a gang of persons associated for the purpose of habitually committing theft and robbery and Dhani Majhi, appellant no. 1 was their leader. It is stated that between March, 1959 and November, 1962 the accused persons committed several offences of theft and robbery within nine police stations of the district of Balasore and also within Dharmasala area in the district of cuttack. In all there were 28 incidents during the period. P.W.1 Jadei Mejhi, the approver was arrested on 14-11-1962, and was produced before a magistrate on 16-11-1962. He is said to have confessed on 17-11-1962 under Ext. 1. Thereafter a Magistrate (P.W.3) under orders of the District Magistrate of Balasore conducted verification on the basis of the aforesaid confessional statement. During continuance of the verification proceedings, P.W.1 made a further confession on 17-2-1963 in two parts marked Ext. 1/22 and Ext. 1/37. The verification proceeding began on 7-2-1963 and ended on 1-3-1963. After investigation, 28 accused persons including the appellants were charge-sheeted for an offence under section 401 of the Indian Penal Code. After the committal proceedings were over, P.W.1 was granted pardon by order dated 11-11-1965 on the basis of being an approver. The accused persons were charged for offences punishable under section 400/401 of the Indian Penal Code and were committed to the Court of Session for their trial. 2. The defence was one of complete denial of the occurrences and the charge. 3. For the prosecution 305 witnesses in all were examined. The learned trial judge found that complicity of 16 appellants in 12 of the occurrences out of 28 had been established. He accordingly convicted the appellants and acquitted the rest 12 and sentenced the Appellants to varying terms of rigorous imprisonment keeping in view their position in the gang and frequency of participation in the crimes. 4. The appellants are represented in this Court by two sets of counsel. Mr. He accordingly convicted the appellants and acquitted the rest 12 and sentenced the Appellants to varying terms of rigorous imprisonment keeping in view their position in the gang and frequency of participation in the crimes. 4. The appellants are represented in this Court by two sets of counsel. Mr. Patra appears for some of the appellants while others are represented through Mr. C. Pani, an Advocate appearing amicus curia. The State is represented by Mr. N.V. Ramdas, special counsel for the appeal. 5. It is contended on behalf of the appellants that : (1) The approver was a wholly unreliable witness. He had been tutored by the police officers and was persuaded to make three separate confessional statements. He had been shown the places before the commencement of the verification proceedings and even during the verification proceedings he was allowed to stay in police custody. As such there should have been no reliance placed on the verification proceedings as lending assurance to the confessional statement and evidence of the approver. (2) The grant of pardon to P.W.1 was withheld until a belated stage mainly with a view to keeping him under proper control of the prosecution. As such the evidence of P.W.1 is indeed tainted as very interested and should not have been relied upon. (3) The evidence of P.W.1 is false. He has implicated some of the members of the gang in certain incidence in which he also took part. It has been found that he was in jail custody on such dates. This indicates that he was out to depose without the least care for truth. (4) There is a strong party faction between two political groups in the area where the operations are said to have taken place. Taking advantage of the fact that some of accused persons had past convictions or had been bound down by magisterial orders, a false case has been built up. (5) The evidence led by the prosecution is not acceptable and does not establish that the appellants belonged to a gang of habitual thieves or robberers. 6. Before examining the various contentions on-behalf of the appellants, the position in law in regard to the offence punishable under section 401 of the Indian Penal Code may be Stated. (5) The evidence led by the prosecution is not acceptable and does not establish that the appellants belonged to a gang of habitual thieves or robberers. 6. Before examining the various contentions on-behalf of the appellants, the position in law in regard to the offence punishable under section 401 of the Indian Penal Code may be Stated. Section 401 provides : "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 decoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine." Section 400 of the Indian Penal Code provides for the punishment of persons, who belong to a gang of decoits and section 401 provides for the punishment of persons who belong to a gang of thieves or robberers. The essential ingredients of the offence under the latter section are: (i) that there should he in existence a gang of persons ; (ii) that such a gang should be associated for the purpose of habitually committing theft or robbery. (iii) that the accused should belong to that gang. Essentially the ingredients of the offence under this section are the same as for the offence under section 400 except that in one case the purpose of association is habitual commission of dacoity while in the other it is habitual commission of theft or robbery. As such the principles indicated in relation to section 400 of the Indian Penal Code have full application here. On two occasions two division benches of this Court have discussed at length the meaning of the phrase 'belong to a gang'. See Bhima Shaw and others v. The State AIR 1956 Orissa 177, and Dama alias Damodar Jena and others v. State I.L.R. 1969 Cuttack 265. In both these cases it has been held that the expression 'belong' implies something more than casual association for the purpose of committing one or two decoities by a person who is ordinarily living by honest means. It refers to those persons who habitually associate with a gang of decoits and actively assist them in their operations. In both these cases it has been held that the expression 'belong' implies something more than casual association for the purpose of committing one or two decoities by a person who is ordinarily living by honest means. It refers to those persons who habitually associate with a gang of decoits and actively assist them in their operations. The expression involves a notion of continuity and indicates more or less intimate connection with a body of persons extending a period of time sufficiently long to warrant the inference that the person affected has identified himself with a gang the common purpose of which is the habitual commission of the offence of decoity or robbery as the case may be. Although the mere participation in the commission of one or two decoities by a person who was otherwise leading an honest existence and suddenly fell into temptation may not suffice to show that he belongs to a gang of decoits, still the evidence showing the actual participation by an accused in any given dacoity is evidence both of association with the gang and of his object in such association. This is, however, just a piece of evidence and may not be sufficient to establish that he belongs to a gang. The person convicted may not have taken part even in a single decoity, because what is punishable under this section is not the participation of an accused in any particular offence of decoity robbery but because he belongs to a gang of decoits or robberers. Therefore, the offence though not believable for the purpose of conviction under section 392 or 395 of the Indian Penal Code may yet be relied upon for the purpose of conviction under either section 400 or 401 of the Indian Penal Code. It was further indicated that association of an accused with a gang of decoits can be proved by direct evidence and also circumstantial evidence. Direct evidence will ordinarily be available from the evidence of the approver. It can also be given by other independent witnesses in relation to specific instances or the evidence may be about the general association of the accused with the gang. Direct evidence will ordinarily be available from the evidence of the approver. It can also be given by other independent witnesses in relation to specific instances or the evidence may be about the general association of the accused with the gang. It may some times be given also by persons who might have participated along with the gang in an incident of theft, robbery or decoity without himself being a member of the gang and without knowing the object of the gang. 7. For proving a charge under section 401, Indian Penal Code, it must be established:- (i) That there was a gang associated for the purpose of habitually committing theft or burglary, and (ii) that the accused belongs to that gang, that is to say, that the association of the accused with the gang was not casual but was intended to be habitual. Hence, habit is a fact in issue to be proved for the purpose of establishing both the aforesaid ingredients of the offence. As habit is equivalent to character, it may be reasonably said that character of an accused is itself a fact in issue for proving a charge under section 401 of the Indian Penal Code. 8. The approver in a case of this type has a large role to play for the prosecution case. It is now well settled that the approver's evidence must satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all, witnesses. Once that test is satisfied, the second test which must yet be applied is that the approver's evidence receives sufficient corroboration. Courts have often indicated that it would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view was to be adopted it would render the evidence of the approver wholly superfluous. 9. Courts have often indicated that it would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view was to be adopted it would render the evidence of the approver wholly superfluous. 9. A Bench of the Gujarat High Court in the case of Bai Chaturi, W/o Andharibhai and others v. State AIR 1960 Gujarat 5, dealing with an appeal against conviction under section 401 of the Indian Penal Code has said:- "As the section clearly mentions, the prosecution has to prove that the accused person charged under section 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. 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..........." 10. It has already been stated that there were 28 separate incidents, 16 out of them have not been accepted by the learned trial judge. I would now refer to the 12 incidents which have been found to have been established. They are:- SI.No. Place of occurrence Date Number of the case Nature of offence Witnesses 1. Sathi Bankuda 8-3-1959 G.R. 152/59 Burglary P.Ws. 31, 120, 121, 122 & 123. 2. Motto 15-1-1961 G.R. 41/61 Burglary P.Ws. 76, 91, 136, 146, 261, & 235. 3. Ostia 30-6-1962 G.R. 376/62 Burglary P.Ws. 128, & 129. 4. Ogalpur 23-9-1962 G.R. 557/&2 (F.I.R. Ext.12) Burglary P.W. 34. 5. Koligadia 29-9-1962 G.R. 565/62 (F.I.R.Ext.47) Decoity P.Ws. 153 and 156. 6. Nuagarh 22-10-1962 G.R. 565/62 (F.I.R. Ext. 57) Burglary P.Ws. 220 and 224. 7. Panobpada 27-10-1962 G.R. 609/62 (F.I.R. Ext.13) Burglary P.Ws. 13, 19, 20, 35 36, 41, 42 & 43. 8. Kuansar 29-10-1962 G.R. 116/63 (F.I.R. Ext. 41) Burglary P.Ws. 154 and 237. 9. Kakbarudiha 29-10-1962 G.R. 128/63 (F.I.R. Ext.44) Burglary P.Ws. 151 and 152. 10. Ugratara 29-10-1962 G.R. 622/62 (F.I.R. Ext. 43) Burglary P.Ws. 147 and 249. 11. Nuagarada 29-10-1962 G.R. 128/63 (F.I.R. Ext.48) Burglary P.Ws. 163 and 164. 12. Maitapur Bazar 31-10-1962 G.R. 946/62 (F.I.R. Ext. 71) Burglary P.ws 212, 213, 249 and 281 11. The learned Additional Sessions Judge has not attached much of importance to the verification proceedings. Though P.W.1 has not admitted that he was being kept in police custody during the verification proceedings or that he had been shown the places before the verification proceedings started, there is evidence on record to justify such a conclusion. The learned Additional Sessions Judge has not attached much of importance to the verification proceedings. Though P.W.1 has not admitted that he was being kept in police custody during the verification proceedings or that he had been shown the places before the verification proceedings started, there is evidence on record to justify such a conclusion. There is lot of force in the contention of counsel for the appellants that what was done in this case was contrary to the requirements of fairness and even the rules inchoated in the police Manual. The approver being in police custody during the material period is likely to have been influenced by the prosecution and most of his performances before the verifying Magistrate P.W.3 possibly were on the basis of guidance given by the police authorities. I would accordingly attach no importance at all to the verification proceedings. The prosecution is thus deprived of the assurance that could have been gathered as a result of the verification made by a Magistrate with reference to the evidence given by the approver. The verification proceeding conducted on the basis of the confession of the approver which normally lends support to the confessional statement and the approver's evidence, is thus not available in this case. 12. The learned trial judge dealt with the evidence relating to information of the gang and the association of the accused persons at the different places for the purposes of committing the offences in paragraph 33 of bis judgment, In 1957 there was drought in the area. P.W.1 the approver was working as a day labourer in the construction of a house of Dhani Majhi, the leader of the gang. He was contacted by Babaji, Kasinath, Gobardhan and others who were by then visiting Dhani Majhi's house regularly. In 1958 P.W.1 came to be used as a mediator for disposal of gold and silver ornaments at Bhadrak. P.W.1 came in contact with Dhani. Ultimately he was given oath in the name of Sanatan Goswami not to disclose about the secret gang. The learned Sessions Judge has given a detailed account of how the gang came to be formed and continued its operation. The evidence of P.Ws. 73, 78, 91, 92, 99 and 215 supports the prosecution case regarding the formation of the gang and its activities from stage to stage. The learned Sessions Judge has given a detailed account of how the gang came to be formed and continued its operation. The evidence of P.Ws. 73, 78, 91, 92, 99 and 215 supports the prosecution case regarding the formation of the gang and its activities from stage to stage. The learned Additional Sessions Judge has tested the evidence of the approver with reference to the evidence coming from other witnesses in regard to the formation of the association as also the membership of the gang. In fact the learned Additional Sessions Judge discussed the evidence with regard to the formation of the association and the gang by referring to the various places like village Narendrapur, the hotels, the house of accused Gani Jena, Motto Bazar, and Ghanteswar. He has also dealt with existence of two political parties and their role in the matter. I do not see any justification to discard the prosecution case so far as the existence of a gang is concerned though as to who can he said conclusively to be a member of the gang is a matter yet to be decided. 13. P.W.1 the approver made three confessional statements as per Ext. 1, 1/22 and 1/37. It is contended that the recording of the confessional statements is not in accordance with law. Time of at least 24 hours for cool reflection has not been granted to P.W.1. Due caution has not been administered. P.W.1 was really not in judicial custody during the material time and it is also stated that the Magistrate recording the confession had not satisfied himself by putting questions and obtaining answers to show that the confession was voluntary. The learned Magistrate who recorded the confessional statements is P.W.2. He has dearly indicated that he had duly cautioned P.W.1 as required under the law. The evidence also shows that P.W.1 had been transferred to Judicial custody long before be-made the statements. It is difficult in this case to hold that enough time had not been given for cool reflection to P.W.1. The evidence of P.W.2 shows that he had taken steps to satisfy himself about the voluntary character of the confessional statements. I am not, therefore, prepared to accept the contention by learned counsel for the appellants that the confession as such is liable to be discarded. The first confessional statement implicated appellants Dhani, Balaram, Natabar, Giridhari, Arjuna and Jula. The evidence of P.W.2 shows that he had taken steps to satisfy himself about the voluntary character of the confessional statements. I am not, therefore, prepared to accept the contention by learned counsel for the appellants that the confession as such is liable to be discarded. The first confessional statement implicated appellants Dhani, Balaram, Natabar, Giridhari, Arjuna and Jula. Nirakar was added at the second stage. In the committing Court 5 more were named for the first time and at the trial Upa and Gobardhan were implicated. It is contended on behalf of the appellants that keeping in view the time gap between the first and the second confessional statements, the possibility of P.W.1 implicating others at the instance of the Prosecutor particularly because he is not a truthful and honest witness, and the unsatisfactory character of the prosecution evidence in general, it would not be proper to accept the complicity of others who had not really been named in the first confessional statement. In point of time was the nearest to the events and there is no justification as to why P.W.1 would have omitted to disclose the names of all who were the members of the gang along with him. Nor is there any explanation available as to why for the first time he added new names at the subsequent stages as already indicated. This contention does not seem to be without force. 14. It is true, there is some evidence of actual participation in various occurrences as are alleged to have been committed by others excepting these six. But as I have already said, the present prosecution is not for the actual offences committed but for being members of a gang within the meaning of section 401 of the Indian Penal Code. Therefore, on the basis of the evidence of an actual incident, conviction for the present offence cannot be sustained, but such evidence may only be there to corroborate other evidence. Non-implication by P.W.1 who really offered the direct evidence for the prosecution case of others than the six named by him casts reasonable doubt in my mind that those persons were really not members of a gang and were introduced by the prosecutor on the allegations of independent offences which keeping in view the time, the area and other matters in the background could be made into the case in question. I would accordingly hold that as far as the other ten accused persons excepting Dhani, Balaram, Natabar, Giridhari, Arjuna and Jula are concerned, there is scope to have doubts as regards their complicity in the matter. I would accordingly hold that the prosecution has failed to establish its case beyond reasonable doubt in respect of appellants Kinai Jena, Hadibandhu Puhan, Nirakar Raut, Gani Jena, Upa Mahanta, Gobardhan Raul, Babaji Nath, Santha Das, Sanatan Bharati and Laxmidhar Misra. They are entitled to benefit of doubt. I would, therefore, sustain the conviction of the six others namely Dhani Majhi, Balaram Padhi, Natabar Mohanty, Giridhari Biswal, Arjuna Panda and Jula Behera and dismiss their appeal. So far as the other ten persons as named above are concerned, they shall be given benefit of doubt and their appeal shall stand allowed. 15. It is unfortunate that this appeal remained pending in this Court for almost five years and during this period the sentence in respect of some of the appellants ran out. The Criminal appeal is thus allowed in part. Those of the appellants who are acquitted and are still in jail custody serving the sentence in this case, are directed to be set at liberty forthwith. Final Result : Allowed