VIDYA NIWAS Vs. STATE

JUDGEMENT

(1.) The applicant, Vidya Niwas, has been convicted and sentenced to undergo rigorous imprisonment for one year under 8. 379, Penal Code ; and in addition to the punishment awarded to him under the Penal Code he has also been punished with whipping to receive 12 stripes under the Whipping Act. Against his conviction and sentence, he preferred an appeal to the Sessions Judge oi Gorakhpur. The appeal was heard by the Additional Sessions Judge of Gorakhpur, who upheld the conviction as well as the sentences imposed upon the applicant. Now, the applicant has filed this revision. The revision was admitted on the question of sentence only.

(2.) It has been argued on behalf of the applicant that the sentence imposed upon the applicant is not only excessive but it is also illegal. The sentence imposed upon the applicant is said to be illegal, inasmuch as in addition to the sentence of imprisonment under the Penal Code, punishment of whipping has also been imposed, in direct contravention of the provisions of Section 3, Whipping Act which lays down :

(3.) The applicant having been found guilty of an offence of theft, as defined in Section 378, Penal Code, he could not, therefore, have been punished with whipping in addition to the sentence of imprisonment. In view of the provisions contained in Section 3, Whipping Act, the punishment of whipping could have been awarded only in lieu of the punishment to which the applicant was otherwise liable. Section 4 of the Whipping Act makes a provision for the imposition of the punishment of whipping in lieu of or in addition to any other punishment to which any accused may be liable : but that is permissible only when any of the offences mentioned in that section are committed. The offence of theft is not one of the offences mentioned in Section 4 of the Whipping Act.