1. The facts giving rise to this revision petition are that the appellants, Mahadoo, Shripat, and Mitho, were challaned under Section 380, Penal Code, for stealing two oxen and one she buffalo. Out of these three accused, Shripat and Mithoo were discharged and enquiry was made against Mahadoo only. The Munsiff Magistrate found the charge of stealing proved against Mahadoo, convicted him under Section 330, I. P. C., and sentenced him to undergo eight months rigorous imprisonment and to pay a fine of Rs. 200/-; against which an appeal was preferred by Mahadoo before the District and Sessions Judge, Eir. The Sessions Judge confirmed the finding of the lower court, but modified the sentence to five days imprisonment and enhanced the fine to Rs. 300/-. Aggrieved by this decision the petitioner has filed this revision petition.
2. It is contended on behalf of the petitioner that there is no proof as to the property having been stolen by him and it is the duty of the prosecution to prove the guilt of the accused. The prosecution could not merely rest content by asking the Court to draw a presumption under Section 114(a), Evidence Act. The Advocate relied on 'In re Gangaraju' : AIR1950Mad773 and - 'Hori Lal V. Emperor' AIR 1933 All 893 (B).
3. In - : AIR1950Mad778 , the accused gave an explanation that as he was searching for the box said to have been stolen in order to remove suspicion against him that he was the thief, he found the box in a well near the Trunk Boad. The trial Court did not go into the question as to whether the explanation offered by the accused was true or false. Therefore, the learned Judge of the Madras High Court who decided the case referring to the case of - 'Rex v. Abramovich' (1915) 31 T.L.R. 83 (C), held that where an explanation has been offered by the accused for the possession of the goods that have been stolen the Court could not merely convict the accused on the evidence of the recovery of the stolen property from the accused raising a presumption under Section 114(a), Evidence Act, where there is no actual proof of the goods having been stolen. In the case before us, the accused gave an explanation that the cattle belonged to the complainant but that he had sola them to him. He tried to lead evidence! of the alleged sale but he was not able to establish the sale transaction. The trial court has given a finding clearly to the effect that the sale alleged by the accused is not established. Therefore, the Court has gone into the explanation offered by him and has come to the conclusion that the explanation is not convincing. Therefore, this case cannot help the accused.
The other case relied upon by the Advocate for the accused is the case reported in - AIR 1933 All E93 (B). The Learned Judge in this case held that where the accused has offered an explanation with regard to the possession of the stolen article the burden shifts upon the prosecution to show that it was the accused, who committed the theft. As mentioned by us above in this case the evidence on behalf of the prosecution as well as the evidence on behalf of the accused were both before the Court below and the Court on this evidence has come to the conclusion that the stolen cattle were stolen by the accused. The learned Judge in the Allahabad case held that the lower courts were wrong in holding that it was upon the accused to give a proper explanation as to how he came to be in possession of the stolen property. The finding in the case now before us is not solely based upon the presumption arising under Section 114(a), Evidence Act. We are of the opinion, that none of the two rulings relied upon by the learned Advocate for the accused will help the accused.
4. Further, it was also urged that the lower courts had not given any definite finding in this regard. We find that those contentions are not substantiated by the facts. The trial court was clearly given a finding after examining the evidence & in its judgment has clearly stated that on the evidence of the prosecution, the statements of witness No. 10 and the Police Patel, witness No. 9, it is proved that the cattle was stolen on 16-2-1950. Further, at the end of the judgment, the trial court has given a clear finding that the charge of theft under Section 330 is well established against the accused, Mahadoo. This finding of fact has been confirmed by the appellate court. Under such circumstances, it cannot be said that the lower courts have not given any finding as regards the charge having been proved against Mahadoo. Both the lower courts are concurrent in this respect and we do not wish to interfere with the concurrent finding of the lower courts in revision. From what has been stated above, it would be evident that the lower courts have not based their decision solely on the presumption arising under Section 114(a), Evidence Act, but have also relied upon the evidence in the case. Therefore, the cases relied upon by the petitioner do not help him.
5. The next argument on behalf of the petitioner is that the appellate Court had enhanced the sentence, namely, that instead of the fine of Rs. 2007- imposed by the trial court the appellate court had imposed a fine of Rs. 300/-, which it could not do under Section 423, Sub-section (1)(b), Criminal P. C. The relevant portion of the Section is:
423. (l)'The Appellate Court .... may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may
X X X X
(b) in an appeal from a conviction ....(3) with or without such reduction (of sentence') and with or without altering, the finding alter the nature of the sentence, but,....not so as to enhance the same.
6. In our opinion, the contention that the appellate Court had enhanced the sentence cannot stand. In fact the original sentence was a sentence of eight months rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine to undergo imprisonment for a further period of two months. The appellate court reduced the substantive sentence by holding that the imprisonment already undergone, viz., five days, Was sufficient arid raised the fine from Rs. 200/- to Rs. 300/-. This cannot be regarded as an enhancement of the sentence.
In - 'Mahomed Hussain v. Emperor' AIR 1931 Lah 159 (2) (D), the accused was sentenced by a Magistrate to one year's rigorous imprisonment and to pay a fine of Rs. 50/-, or six months further rigorous imprisonment in default; on appeal the Sessions Judge altered the sentence to one of six months rigorous imprisonment and Rs. 500/- fine or six months further rigorous imprisonment in default; on appeal the Session Judge altered the sentence to one of six months rigorous imprisonment and Rs. 500/- fine or six months further rigorous imprisonment in default. In revision Coldsteam J. held that the alteration was not an enhancement of the sentence because the aggregate period of imprisonment, which the accused had to undergo was less than the period of imprisonment that he had to undergo according to the original sentence; the fact that a fine is imposed by an appellate Court would not in law make it an enhancement of sentence.
In - Bhakthavatsalu Naidu v. Emperor' 30 Mad 103 (PB) (E), a similar view was taken by a Full Bench; and in - 'Queen-Empress v. Chagaii Jagannath' 23 Bom 439 (P), a Division Bench of the Bombay High Court held that where the appellate court had altered the sentence of nine months' rigorous imprisonment to a sentence of six months rigorous imprisonment and a fine of Rs. 1000/- and in default of payment three months rigorous imprisonment, there had been no enhancement of the sentence as the sentence of three months rigorous-imprisonment in default of payment did not make the whole sentence of imprisonment longer than it was before. In the case of - 'Shivdas Singh v. King Emperor' AIR 1949 Nag 140 (G), Hemeon J. following these authorities, has also taken a similar view. We are in agreement with these authorities and we do not find any force in the contention raised before us by the petitioner.
7. A sentence of fine is always regarded as lighter than a sentence of imprisonment. Where the aggregate period of imprisonment that an accused has to undergo, including the period of imprisonment that he has to undergo for default of payment of fine, is less than the period of imprisonment, that he has been originally sentenced to undergo, it cannot be regarded as an enhancement of the sentence although the fine imposed has been increased.
8. It seems to us, however, that the fine imposed is somewhat excessive in view of the fact that the applicant is an agriculturist and can by no means be said to be in affluent circumstances. In view of this a fine of Rs. 200/- would in our opinion, suffice, and meet the ends of justice. We order accordingly. In default of payment he shall undergo imprisonment for a further period of two months.
9. Subject to this modification, the petition in revision is dismissed.