LALTHLAMUANA Vs. UNION TERRITORY OF MIZORAM AND ORS.

JUDGEMENT

(1.) THE Appellant was charged under Section 380 Indian penal Code. He was found guilty under that Section and was sentenced to undergo rigorous imprisonment for two years with a one of Rs. 500/ - or in default one month's simple imprisonment. The order was passed on 2nd March 1983. He was arrested on 6th May, 1982. He made his confession before the Second Class Magistrate, Aizawl on 11th September, 1982. His statement was also recorded by the Magistrate on 2nd March, 1983. Both in his confessional statement as well as his statement dated 2nd March, 1983 the Appellant admitted his guilt though he stated that he himself did not steal the tape recorder but was party to its sale and he shared the sale price with the other co -accused. The learned Magistrate hence convicted him under Section 380 I.P.C. This appeal is directed only against the sentence passed by the learned Magistrate.

(2.) FOR the Appellant it was submitted that the punishment awarded is too severe. I am not inclined to accept the contention. The Appellant had himself confessed his guilt and when he came to know of the fact that the tape recorder in question was a stolen property, he helped the co -accused in disposing it of. Not only that, the sale price Rs. 800/ - was equally shared by him. He was thus rightly convicted and sentenced to rigorous imprisonment for 2 years. The learned Magistrate also observed in his judgment that the Appellant had confessed that it was his third offence. The learned Counsel for the Appellant submitted that in view of the provisions of Section 211(7) of the Code of Criminal Procedure the Magistrate should have framed a charge also on the question that it was a third offence of the Appellant. Sub -section (7) of Section 211 Code of Criminal Procedure provides that - -if the accused having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think at to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge: and if such statement has been omitted, the Court may add it any time before sentence is passed. In my view the provision of Sub -section (7) of Section 211 are not attracted to the facts of the instant else inasmuch as the Court did not intend to prove the previous conviction of the accused for the purpose of affecting the punishment. The accused had himself confessed that it was his third offence.

(3.) IN the result, the appeal fails and is dismissed.