1. This is an appeal by nine appellants against a conviction for dacoity by the Sessions Judge of Kumaun. Three of the appellants Allauddin, Tondi and Bhikbari have been sentenced to 15 years' transportation. During the hearing of the case it was pointed out to me, before whom originally the case came, that the legality of this sentence was open to question. At my request the learned Chief Justice appointed two Judges to hear and determine the appeal in' order to dispose of the question of the legality of the sentence by an authoritative decision. Since then, however, our attention has been drawn to the case of the Queen v. Naiada 1 A. 43 (F.B.) : 1 Ind. Dec. (n.s.) 29, in which a Full Bench decided that 'when an offence is punishable either with transportation for life or imprisonment for a term of 10 years, if a sentence of transportation for a term less than life is awarded, such term cannot exceed the term of imprisonment, namely, ten years.' That authority which dates from 1875 is binding upon us. And the section which we have to administer, namely, Section 395 of the Indian Penal Code is in precisely identical terms. We have, therefore, no alternative but to reduce the sentence in the case of Allauddin, Tondi and Bhikhari to a term of transportation for tea years. There is no substance in their appeals, their guilt is perfectly plain and speaking for myself I should have convicted Bhikhari on his own statement for rape. There is no doubt that a horrible raps was committed upon the wife of the complainant and it is a feature of the case that the woman has come forward and described what happened to her. I do not understand why the learned Judge acquitted this scoundrel, and he deserves a whipping as well as a severe term of transportation. However, we cannot deal with the matter which has been disposed of by his acquittal.
2. With regard to the other appellants Mr. Osborne, who has argued the case of all of them with his usual clearness, has drawn our attention to everything which can be said on their behalf and which comes to very little, and their appeals must be dismissed so far as their conviction is concerned with the exception of one, namely, appellant No. 9, Mahbub Shah He is last on the record amongst the appellants, and was the last parson to be arrested and possibly on that account but also possibly, as Mr. Osborne suggests, because he was only brought into the case on account of the statement against him by Karim Bakhsh, he was not in fact put up for identification and was not identified by anybody in the case. In fact upon any analysis of the evidence it appears that the statement of Karim Bakhsh, the approver, against him is totally uncorroborated in law. That is not a fatal objection to the conviction, but in our view it is sufficient to cast doubt upon its justice and, moreover, the learned Judge was not satisfied to act upon Karim Bakhsh's statement alone. He evidently thought that some corroboration was required to satisfy his own mind. Turning to the portion of the judgment which deals with this man's case we find that the learned Judge explained his reason for convicting him by the fact that in addition to the statement of the informer his name had been mentioned to the Mukhia by one of the co-accused when the first detailed information of the participants in the dacoity was given to any one. The learned Judge, dealing with the mass of matter which be has done with great thoroughness, overlooks the fact that this really is not evidence of the fact at all and, therefore, cannot be used as corroboration of Karim Bakhsh, We, therefore, give Mahbub Shah the benefit of the doubt and reverse his conviction and direct that he be released. The appeal of all the others will be dismissed so far as the conviction is concerned. As we have already said, the sentences of Alla-ud-din, Tondi and Bhikhari must be reduced to ten years' transportation. The remaining appellants, whose convictions are upheld and who do not really seem to have been dealt with undue severity, have the good fortune, as Mr. Osborne has pointed out, to profit by the compulsory reduction of the sentences of the undoubted ringleaders Inasmuch as Allauddin and Bhikhari certainly deserve severer sentences than the rest, it is only right that the sentences of the remaining five should be reduced. We, therefore, reduce the sentence of ten years' rigorous imprisonment passed on each of the five appellants, Nabbu Khan, Ghasita, Mohammad Husain alias Manna, Nanhe Khan and Abdul Ghani, to one of seven (7) years' rigorous imprisonment each, including three months' solitary confinement.