RAJESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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.