1. The appellant Ajudhia was committed to the Court of the Sessions Judge of Ghazipur charged with the offence of house-breaking by night in order to the committing of theft punishable under Section 457 of the Indian Penal Code. He had four previous convictions.
2. It has been proved by clear and unimpeachable evidence that Ajudhia was caught in the act of digging a hole through the wall of the house of Ram Lakhan, Sonar. There can be no doubt that his intention was to commit theft. As he did not enter the house he was guilty of an attempt to commit the offence punishable under the last clause of Section 457 of the Indian Penal Code, and was properly convicted by the then Officiating Sessions Judge.
3. On the question of sentence the learned Sessions Judge was of opinion that as Ajudhia had previous convictions for offences punishable with rigorous imprisonment for three years and upwards under Chapter XVII of the Indian Penal Code, Section 75 of that Code applied to his case. He was further of opinion that the terms of Section 75 precluded him from passing a sentence of transportation which should be of less duration than for life. He also thought that--'whereas Section 457 prescribed a maximum term of fourteen years' imprisonment even for the first offence, Section 75 of the Indian Penal Code, which refers to second convictions, limits the maximun to ten years' rigorous imprisonment.' And he held that, although under Section 511 he could have sentenced the accused to seven years' rigorous imprisonment, if he had no previous convictions, he was limited by the provisions of Section 75 to the power of sentencing the accused to five years' rigorous imprisonment only by reason of the accused having been repeatedly convicted on previous occasions. The learned Sessions Judge has accordingly sentenced Ajudhia to five years' rigorous imprisonment, that being, according to the learned Judge, 'the utmost penalty permitted by the law.'
4. On all the above points the views of the learned Sessions Judge are clearly erroneous. Section 75 empowers a Court to award in the case of certain offences mentioned in the section a more severe sentence on a second conviction than that which the offender would otherwise have been liable to. As was held in Sheo Saran Talo v. The Empress I.L.R. 9 Cal. 877, the object of the section is to provide for an additional sentence, not for a less severe sentence, on a second conviction,' and 'recourse should not be had to that section if the punishment for the offence committed is itself sufficient.' It could never be the intention of the Legislature that the punishment for an offence on a second conviction should be less than what it would have been on a first conviction. If, therefore, Section 75 applied to the case, the learned. Judge was not precluded by its provisions from passing a more severe sentence than that which was admissible under it, if the higher punishment could be awarded for the offence on a first conviction.
5. The learned Judge evidently overlooked the provisions of Section 59 of the Indian Penal Code in coming to the conclusion that he was precluded by the provisions of Section 75 from passing a sentence of transportation which should be of less duration than for life. Under Section 75, when it applies, an offender is liable to an alternative sentence of ten years' rigorous imprisonment. By Section 59, where the offender is punishable with imprisonment for seven years or upwards, the Court is competent to award the sentence of transportation instead of imprisonment, such transportation not being for a shorter period than seven years, and not exceeding the term of imprisonment which could be awarded for the offence.
6. In this case the learned Sessions Judge has erred in applying Section 75 of the Indian Penal Code. That section applies, in the case of a second conviction, to offences punishable under Chapter XII or Chapter XVII of the Code. An attempt to commit an offence is itself an offence within the definition of an offence as given in Section 40, and where no express provision is made in any other part of the Code for the punishment of such offence, it is punishable under Section 511. An attempt to commit house-breaking by night is punishable under Section 511 only. That section appears in Chapter XXIII of the Code. Although, therefore, the offence of house-breaking by night is punishable under Section 457, which appears in Chapter XVII, the offence of attempting to commit house-breaking by night is not punishable under that Chapter, but is punishable under Chapter XXIII only. As Section 75 does not apply to offences other than those punishable under Chapter XII or Chapter XVII, the learned Sessions Judge was wrong in applying it to the present case. I am fortified in this opinion by the rulings of this Court in Empress of India v. Ram Dayal I.L.R. 3 All. 773, of the Bombay High Court in Empress v. Nana Rahim I.L.R. 5 Bom. 140, and of the Calcutta High Court in Queen-Empress v. Sricharan Bauri I.L.R. 14 Cal. 357.
7. The appellant, Ajudhia, has been properly convicted of an attempt at house-breaking by night with intent to commit theft. For this offence he was liable, under Section 511, to be sentenced to seven years' rigorous imprisonment, that being one-half of the largest term of imprisonment provided by the last portion of Section 457 for the offence of house-breaking by night with intent to commit theft. The sentence of five years' rigorous imprisonment passed on Ajudhia was therefore a legal sentence, and it was in my opinion a proper one. The appeal is dismissed.