1. The appellant Suresh Kumar, a young lad of 18, was tried upon a charge under Section 379, Penal Code, and upon his conviction was awarded a sentence of five years' rigorous imprisonment because he admitted two previous convictions.
2. The appellant was found guilty of picking the pocket of Mehr Chand at the Railway Station Ambala Cantonment. Mehr Chand stated that he left the train to take his meal and as he was about to re-enter his compartment he felt a pull at his waist-coat pocket. The door of his compartment was crowded and on putting his hand in his pocket he found that his money was stolen. The appellant was near-by & was seen trying to slip away, He was at once caught and a ten-rupee note and a piece of five-rupee note which had been stolen from the complainant's pocket were recovered from him. A razor was also found upon his person.
3. There can be no doubt whatsoever that the appellant stole two currency notes from the pocket of Mehr Chand. The five-rupee note was cut into two pieces while the appellant was trying to cut the complainant's pocket. The appellant's conviction under Section 379', Penal Code, must therefore be upheld.
4. The appellant was awarded a sentence of five years' rigorous imprisonment under the provisions of Section 75, Penal Code. There is, however, no proof whatsoever of the appellant having been convicted in a previous case. A search slip appears to have been received from Phillaur which mentions that one Romesh Chandar son of Nihal Chand was convicted on two previous occasions once under Section 379, Penal Code, on 3-8-1946 when he was awarded a sentence of ten stripes, and once on 24-3-1947 when he was released on being admonished under Section 562, Criminal P. C. This document, as already stated, relates to one Romesh Chandar son of Nihal Chand. The appellant has given his name as Suresh Kumar son of Kanahya Lal. There is no evidence of the Finger Print Expert nor anything whatsoever to connect the (search slip with the appellant, and, in any case, this search slip cannot be said to be judicial evi-dence of the previous convictions. I am astonished that the learned Magistrate, who is exercising enhanced powers under Section 30, Criminal P. C., should have been guilty of such dereliction of duty as to record a conviction without any judicial evidence whatsoever. He did not even take notice of the fact that the search slip from Phillaur bore a different name. Certified copies of judgments in the previous cases were not produced before him. No witnesses whatsoever about the appellant being a previous convict were produced, and while the Magistrate examined the appellant, presumably under Section 342, Criminal P. C., and asked him if he had been convicted previously upon two occasions, the appellant answered in the affirmative, and this was accepted as judicial proof of his previous convictions. This Court has had occasion to point out several times that proof of pre-vious convictions must be given in the proper manner required by the Evidence Act before the provisions of Section 75, Penal Code, can be invoked. The appellant has not been proved to have been a habitual offender, and Section 75 cannot be applied merely on an admission made by the appellant when there is no proof of his previous convictions. | An accused person cannot be asked to explain a fact which has not been proved by proper evidence, and since the prosecution did not produce evidence of any previous convictions, the learned Magistrate was in error in examining the appellant upon this matter.
5. The appellant cannot, therefore, be awardedenhanced sentence under the provisions of Section 75,Penal Code. The appellant has already undergonemore than nine months' rigorous Imprisonment,this is in my view sufficient punishment for thecharge of which he has been convicted in thiscase. I, therefore, allow his appeal to this extentand this extent only that I alter the conviction toone under Section 379, Penal Code, and reduce the sentence to the term of imprisonment already undergone. The order under Section 8, Habitual OffendersAct, restricting the appellant to the limits ofAmbala City is also set aside.