GANESH GOGOI Vs. STATE

JUDGEMENT

(1.) THE two appellants, Ganesh Gogoi and Jurman Gogoi were tried in the court of the Sessions Judge, Upper Assam Districts. The trial was with the aid of a Jury which returned a unanimous verdict of guilty Under Section 396, IPC against both. They were convicted and sentenced each to rigorous imprisonment for two years. They have appealed. At the hearing, in view of the apparent disproportion between the gravity of the offence and the sentence awarded, a notice of enhancement was issued to the accused by this Court on its own motion.

(2.) AT the outset, it may be stated that the position of the appellants so far as their challenge to the verdict of the Jury is concerned is not improved by the notice of enhancement. Sub -section (8) of S. 439, Cr. P. C. does confer on the accused served with a notice to show cause why the sentence be not enhanced the privilege to show cause against his conviction also but the privilege is no greater than what he would have had in an appeal from his conviction. The provision was necessary inasmuch as a person convicted may not appeal where the sentence is lenient. Such a sentence may be sought to be enhanced. Liberty had to be reserved to him to show that the conviction is not sustainable on grounds available to him Under Section 423, Cr.PC or S. 418. It is reasonable that he should have the opportunity of showing that his conviction is not sound. Rut all that ha can show is that the conviction itself is not maintainable though in the same manner and to the same extent as he would have done if he had appealed.

(3.) THE scope of the appeal before us is therefore not enlarged by the notice of enhancement. The appellants can succeed in having the conviction quashed if they can bring their case either under the provisions of Section 418 or under Sub -section (2) of Section 423, Cr.PC