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Emperor Vs. Magan Bhikha - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 395 of 1938
Judge
Reported inAIR1939Bom153; (1939)41BOMLR284
AppellantEmperor
RespondentMagan Bhikha
Excerpt:
.....act, 1911, the special reason need not be something apart from the nature of the offence, such as, youth, age, illness or sex. it can include an offence not being of a very serious nature. the court must in every case consider all the circumstances in determining whether there are special reasons for not inflicting the minimum sentence. one of such circumstances is that the previous conviction took place a long time ago. other circumstances are the nature of the offence of which the accused is convicted and the seriousness of the previous offence, to be judged generally from the sentence imposed.;mayandi thevan, in re (1926) i.l.r. 50 mad. 474, dissented from. - - we fail to see why the discretion of the court should be fettered in the way suggested by the madras high court, and we..........the tobacco leaf was growing; he would have gone to some tobacco factory or to agents dealing in tobacco. i think that he had some reason for going with the accused to their field which he is unwilling to disclose, but which is not difficult to guess. but the fact that he has given a wrong reason for going to the field is no ground for holding that his evidence as to robbery is untrue. his property was found on accused no. 1, and the explanation of accused no. 1 for this is one which it is quite impossible, i think, for any court to accept. all the accused were described with considerable accuracy in the original complaint as the learned sessions judge points out.2. we think, therefore, that the convictions must be upheld. the sentences passed on accused nos. 1, 2 and 4 were rigorous.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal by the four accused against their conviction by the Sessions Judge of Nadiad under Section 392 of the Indian Penal Code. Accused No. 3 was also convicted under Section 392, Indian Penal Code, read with Section 23(1)(a) of the Criminal Tribes Act. The assessors disagreed with the learned Sessions Judge and were in favour of acquittal. It is no doubt true that conviction must depend entirely or almost entirely on the evidence of the complainant. We have been carefully through the record and we think the learned Sessions Judge was right in accepting the evidence of the complainant as to the fact of robbery and the circumstances in which he was robbed, that is to say, that he was robbed in a tobacco field to which he was taken, and that it was the appellants who robbed him. We are not disposed to believe his story as to why he went to the tobacco field, namely, that he was negotiating for the purchase of tobacco for his employer. It is obvious that if he had wanted to consider the purchase of tobacco for his employer, he would not have gone to the cultivators' field where the tobacco leaf was growing; he would have gone to some tobacco factory or to agents dealing in tobacco. I think that he had some reason for going with the accused to their field which he is unwilling to disclose, but which is not difficult to guess. But the fact that he has given a wrong reason for going to the field is no ground for holding that his evidence as to robbery is untrue. His property was found on accused No. 1, and the explanation of accused No. 1 for this is one which it is quite impossible, I think, for any Court to accept. All the accused were described with considerable accuracy in the original complaint as the learned Sessions Judge points out.

2. We think, therefore, that the convictions must be upheld. The sentences passed on accused Nos. 1, 2 and 4 were rigorous imprisonment for eighteen months each, and we see no reason to interfere with their sentences.

3. Accused No. 3 was sentenced to seven years' rigorous imprisonment on the ground that that was the minimum sentence which could be inflicted under Section 23(1)(a) of the Criminal Tribes Act. The section provides:

Whoever, being a member of any criminal tribe, and, having been convicted of any of the offences under the Indian Penal Code..., is hereafter convicted of the same or any other such offence..., shall, in the absence of special reasons to the contrary,...be punished with imprisonment on a second conviction for a term of not less than seven years.

4. Our attention has been drawn to a decision of the Madras High Court in Mayandi Thevan, In re I.L.R. (1926) Mad. 474, in which the Court held that the mere fact that the offence is not of a very serious nature cannot form a 'special reason to the contrary' for reducing the sentence, and that such a special reason must be something apart from the nature of the offence, such as, youth, age, illness or sex. We fail to see why the discretion of the Court should be fettered in the way suggested by the Madras High Court, and we think the Court must in every case consider all the circumstances in determining whether there are special reasons for not inflicting the minimum sentence. One circumstance is that the previous conviction took place a long time ago, as has already been decided by this Court, as well as by the Madras High Court. But we think that other circumstances are the nature of the offence of which the accused is convicted, and the seriousness of the previous offence, to be judged generally from the sentence imposed. Sometimes an offence may be technical robbery or dacoity which is in substance little more than a scuffle. In the present case the offence is not a very serious one of robbery, although it is not by any means an offence which is merely technical. The former conviction was in 1935 for an offence under Section 457 of the Indian Penal Code and the accused was bound over under Section 562 of the Criminal Procedure Code, so that the offence cannot, we think, have been of a very serious character. We think the trial Court ought to have taken, into consideration the circumstance that the previous offence was not of a serious nature, and that the present offence is not of a very grave character. We consider that those are special reasons within Section 23(1)(a) of the Criminal Tribes Act, and we think that the proper sentence for accused No. 3 is three years' rigorous imprisonment. We therefore confirm the convictions but reduce the sentence passed on accused No. 3 from seven years' rigorous imprisonment to three years' rigorous imprisonment.


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