In Re: Dabbala Koricha Nagadu and Another

Burn, J.—These two appellants have been convicted of offences under Sections 457 and 380, Penal Code. They were tried by jury and the verdict of the jury was unanimous. So far as appellant 2 is concerned his appeal was dismissed summarily u/s 421, Criminal P.C. The case of appellant 1 alone comes up for consideration because of the sentence of seven years'' rigorous imprisonment passed upon him.

There is no allegation of misdirection and the charge to the jury shows no signs of misdirection. There is therefore no appeal on the facts. The sentence of seven years'' rigorous imprisonment has been passed by the learned Sessions Judge, because appellant 1 was a member of a criminal tribe who had been previously convicted of one of the offences specified in Schedule 1 appended to the Criminal Tribes Act. It was therefore obligatory upon the learned Sessions Judge u/s 23 (1)(a), Criminal Tribes Act, to pass a sentence of imprisonment for a term of not less than seven years. The learned Judge, however, has apparently overlooked the provision in Section 23 (1) that these minimum sentences are to be imposed "in the absence of special reasons to the contrary which shall be stated in the judgment of the Court." The learned Sessions Judge has not stated that there were no special reasons to the contrary in this case. Now we find that the last conviction of appellant 1 was in C.C. No. 148 of 1933 on the file of the Stationary Sub-Magistrate, Tadpatri, when he was convicted of house breaking and theft and sentenced to rigorous imprisonment for six months. From that it is clear that appellant 1 had been out of jail for at least seven years after his last conviction and that may very well be considered to be a reason to the contrary u/s 23 (1): vide the decision in (Parambathkandi) Olayatt Kunhu Vs. Ussan Kasim Sait and Another, . Taking this view I set aside the sentence of seven years'' rigorous imprisonment passed upon appellant 1 and sentence him instead to rigorous imprisonment for two years. The amount of property stolen was not worth more than Rs. 17 and no serious injury was inflicted by appellant 1 though it is said that he used a stick and therefore he deserves a severer punishment than appellant 2.