Decided on December 08,1938

EMPEROR Appellant
MAGAN BHIKHA Respondents


- (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.


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