- (1.) THIS appeal u/s. 372 (2) Cr. P. C. is directed against the judgment dt. 30. 5. 1992 passed by learned Addl. Sessions Judge, Bhilwara whereby he has convicted the appellant Rajesh u/s. 411 I. P. C. read with Sec. 75 I. P. C. and sentenced him to 7 years R. I. and convicted appellant Kailya u/s. 398 read with Sec. 75 I. P. C. and sentenced him to 10 years R. I. in sessions case No. 97/90.
(2.) BRIEFLY stated the facts of this case are that one Kailashchand lodged an F. I. R. on 14. 8. 1990 at 1. 45 P. M. at P. S. Mandal alleging that when his mother was going to her field, on the way near Panditji-Ka-Kua somebody caught hold her hand and dragged her to nearby lane and sat over her chest and removed three gold 'baliyas' from her ears and two 'kariyas' from her feet. Thereupon, a case u/s. 392 I. P. C. was registered and site inspection memo and other exhibits were prepared. The accused-appellants were arrested on 15. 8. 1990 vide Ex. P. 9 and 10 respectively. The test identification parade was held on 22. 8. 1990 in respect of the appellant Kailya. On the information and at the instance of the accused-appellant Kailya two gold 'baliyas' and one silver 'kariya' were recovered vide Ex. P. 13 and he also got recovered a 'katar' vide Ex. P. 7. Similarly on the information and at the instance of accused-appellant Rajesh one 'bali' and one silver 'kariya' were recovered vide Ex. P. 3. After due investigation challan was filed against the appellant u/s. 398 IPC before the learned Munsif and Judicial Magistrate, Mandal and the case was thereafter committed to the court of Addl. Sessions Judge, Bhilwara. Charge u/s. 398 IPC was framed against the appellants. They denied the charge and claimed trial. The prosecution in support of its case examined P. W. 1 Kailash Chand, P. W. 2 Chainsukh, P. W. 3 Sohanlal, P. W. 4 Mst. Kanchan, P. W. 5 Prakash, P. W. 6 Narbada, P. W. 7 Jayant Kumar, P. W. 8 Pavanchand and P. W. 9 Ramprakash, and P. W. 10 Maheshchand Mehta. The accused-appellant in their statement u/s. 313 denied the allegation and stated that they have been falsely implicated due to some dispute with the Thanedar and they were shown to the witnesses before identification. However, no defence witness was produced. The learned trial court after conclusion of the trial found both the appellants guilty and convicted and sentenced accused-appellants as aforesaid. Dissatisfied with the judgment of the learned Addl. Sessions Judge, hence this appeal. Mr. Mohanani, learned counsel for the appellants has submitted that the trial court has erred in convicting and sentencing the accused-appellants with the aid of Sec. 75 IPC as it is not attracted because in earlier case the sentences awarded to them was below three years. He has also submitted that the conviction of the accused-appellant Kaliya u/s. 398 is not at all attracted and at the most appellant Kaliya may be convicted U/s. 411 IPC. He has lastly prayed that a lenient view may be taken as regards the sentence awarded to the appellants. He has placed reliance on Jagdish vs. State of Raj. (l), Dulli and Ors. vs. Emperor (2) and Mahendra Singh vs. State (3 ). Learned Public Prosecutor has supported the judgment passed by the trial court and submitted that the learned trial court has rightly enhanced the sentence u/s. 75 IPC as the accused- appellants were convicted earlier and no interference is called for. I have heard learned counsel for the parties and perused the record as well as the case law cited at Bar. So far as the first contention of the appellants regarding applicability of Sec. 75 IPC is concerned, it would be useful to read Sec. 75, which runs as under : - "75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction whoever, having been convicted : - (a) by a Court in India, of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards shall be guilty of any offence punishable under either of those with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years. "
(3.) A bare perusal of Sec. 75 shows that where a person who has been previously convicted of an offence punishable under Chapter XII (which deals with offences relating to coin and Government Stamps) or Chapter XVII (which relates to offences against property) with imprisonment of either description for a term of three years or upwards, is once again found guilty of a similar offence, he shall be liable to enhanced punishment which may extend to imprisonment for life or to imprisonment of either description for a term which may extend to ten years. In my opinion, the section is concerned with a previous conviction for a similar offence but it does not postulate that in respect of the previous conviction, the punishment imposed should have been in respect of an offence punishable with a term of imprisonment for a term of three years or upwards, but it does not lay down that the offender should have been actually punished with such a term of imprisonment on earlier occasion for the offence under Chapter XII & XVII. The key word is "punishable". In other words, the quantum of sentence awarded is not a sine-qua-non, but the permissible upper limit of the sentence of imprisonment for the offence should be three years or upwards. In the instant case, both the appellants were earlier convicted u/s. ' 454 and 380 IPC of Chapter XVII and for both the offences the upper limit of sentence is more than 3 years though each of them was sentenced to 7-1/ months R. I. with a fine of Rs. 50/- and in default of payment of fine to undergo further 15 days R. I. which is evident from the warrant but it does not make Sec. 75 inapplicable as the basis of this section is not the punishment actually awarded but the punishment legally awardable. All that is required, is that the previous offence must have been punishable under Chapter XII or XVII with imprisonment for three years or upwards and the subsequent offence must also be so punishable. Even it is not necessary that, at the previous conviction, the offender should have been sentenced to any term of imprisonment. As stated above the accused-appellants are previously convicted of an offence punishable under Chapter XVII and their previous conviction is still in operation. Further they have been awarded sentence. Therefore, the contention of Mr. Mohanani that Sec. 75 IPC is not attracted because in earlier case the sentences awarded to them was below three years has no legs to stand and he cannot take any benefit out of the decision rendered by the learned Single Judge of this Court in Jagdish vs. State of Rajasthan (supra) as that decision was rendered while relying on Kamya vs. State (4) which was reconsidered by a Division Bench of the Andhra Pradesh High Court in Inre Sugali Nage Naik (5) and it has been observed that the previous offence need only be similar and must be punishable for three years or more and the period has no reference to actual punishment. In view of this the case of Jagdish vs. State (supra) is not applicable to the facts of present case. In Inre Naik (supra) it has been further observed as under : - " (9) The learned Judge's reading of Sec. 75 I. P. C. was obviously due to a slip. However, that be now that we have clarified the position, we hope Magistrate in this State will not allow themselves to be misled by the above quoted observation contained in that judgment. We are saying this because it is represented to us by the learned Public Prosecutor that several Magistrates have been refusing to frame charges under Section 75 I. P. C. relying on the said observation. " The same view has been followed in Ghisulal Gopal Dhimar vs. State of M. P. Therefore, in view of the above, it is not necessary for me to refer the matter before the Division Bench. ;