K.D. Sharma, J.
1. S.B. Criminal Jail Revision No. 180 of 1978 61ed by Rajendra Singh and S.B. Criminal Jail Revision No. 161 of 1978, presented by Damar Singh arise out of one and the same judgment of learned Sessions Judge, Udaipur, dated July 3, 1978, by which the convictions of the petitioners under Section 457 read with Section 75 and 380 read with 75, I.P.C. were maintained but the sentences of three years' rigorous imprisonment awarded to each of there on each count were reduced to rigorous imprisonment for 2 12 years' and in addition thereto a fine of Rs. 1000/-, and in default of payment of fine to undergo further rigorous imprisonment for six months was imposed on each count in lieu of the remitted part of the sentence. The sentences awarded to each petitioner were, however, ordered to run concurrently. As common questions of law and facts are involved in these two revision petitions, they are disposed of together by one judgment.
2. The prosecution case against the petitioners was as follows: On July 24, 1977, Shri Shanti Lal goldsmith closed his shop in the evening at 5pm and went away to his house. On the next day in the morning at about 8 he came to his shop and found its lack broken open and lying on one side of the road. He saw goods of the shop scattered here and there. He checked the goods of his shop and found his tin-box missing. The tin-box contained four nose-pins (Lung), one round piece of gold and another gold ingot and some gold pieces. Shanti Lal. however, could not make a first information report of the incident of theft immediately to the police as he fell sick. On August 19, 1977, he lodged a written report with the police at police station, Ghantaghar, Udaipur. The police registered a criminal case under Sections 457 and 380, I P.C. on the basis of the written-report and took-up the usual investigation In the course of investigation, the two petitioners were arrested by the investigating agency on August 20, 1977. After their arrest, the police recovered two pieces of gold from the shop of Rawal Singh at the instance of the petitioners arid in consequence of their information's recorded under Section 27 of the Evidence Act. The police collected other evidence against the two petitioners, and, eventually, submitted a charge sheet against them in the court of the Judicial Magistrate No. 1 Udaipur, under Sections 457 and 380, I.P.C. The learned Judicial Magistrate framed charges against each petitioner under Sections 457 and 380, I.P.C. The charges were read over and explained to each of them to which he pleaded guilty in the following words:
vijk/k Lohdkj gS pksjh dk lksuk cspk
(Crime is admitted. I have committed theft and sold away the gold). The Judicial Magistrate in his discretion convicted each petitioner on his plea of guilty under Sections 457 and 380, I.P.C. After they had been convicted of the aforesaid offences, the Assistant Public Prosecutor brought it to the notice Judicial Magistrate that the petitioners having been previously convicted of similar offences are liable, by reason of such previous conviction, to enhanced punishment The Judicial Magistrate, therefore, framed a charge under Section 75, I.P.C. against each petitioner stating therein the fact date and place of the previous conviction. The charge of previous conviction was read over to each petitioner, to which also he pleaded guilty. Rajendra Singh clearly admitted that he was convicted and sentenced to imprisonment twice for the offence of theft on October 10, 1975 and May 10, 1976. Likewise, Damar Singh petitioner admitted that he was previously convicted and sentenced to undergo imprisonment for one year for the offence of theft on April 20, 1976. The Judicial Magistrate then heard the two petitioners on the question of sentence and passed enhanced sentence of rigorous imprisonment for three years on ench count on each of them.
3. Aggrieved by their convictions and sentences the two petitioners preferred jail appeals in the court of the Sessions Judge Udaipur, who, after perusal of the record and hearing the parties, maintained the convictions of petitioners under Sections 457 read with 75 and 380 read with 75, I.P.G. but reduced the sentences of each petitioner on each count to a term of 22 years' rigorous imprisonment while imposing in addition thereto sentence of fine of Rs. 1000/-, and in default to undergo rigorous imprisonment for six months on each of the two counts. As against this judgment of the learned Sessions Judge, the two petitioners have come up in revision to his Court.
4. Notice of the date, time and place at which the revision petition shall be heard was given to the Public Prosecutor and to each petitioner. The two petitioners have appeared before me in response to the notice given to them. I have carefully gone through the record and heard the petitioners in person and Mr. D.S. Shishodia Public Prosecutor, for the State.
5. Upon persual of the record I am satisfied that the learned Judicial Magistrate convicted each petitioner only after framing the necessary charges and after leading over and explaining the same to him, to which he pleaded guilty The Judicial Magistrate recorded the plea of guilty of each petitioner. The plea of guilty was clear and unambiguous, as indicated above, It contained an admission of the facts on which the charge were framed and also an admission of the guilt in respect of them. There is nothing on the record to show that the petitioners admitted the offences under a mis-apprehension or on account of any pressure being brought to bear on their minds by any outside agency. Consequently, I see absolutely no reason to disturb the findings of the courts below as to the guilt of the petitioners under Section 457 read with 75 and 380 read with 75 I.P.C. because both of them clearly admitted to have committed the theft & sold away the gold belonging to the complainant and further admitted to have been previously convicted in cases of theft. Their convictions in these circumstances must be maintained.
6. As regards sentence, it may be observed that the Sessions Judge, Udaipur, committed an error in modifying the sentence awarded to each petitioner by the trial court, became the modification introduced by the Sessions Judge amounts to enhancement of sentence and has the effect of rendering the sentence severe and inappropriate. By reason of the altered sentence, each petitioner now shall have to undergo substantive sentence of rigorous imprisonment for 2 years and in addition thereto to further suffer rigorous imprisonment for six months in default of payment of fine of Rs. 1,000/-, on each count. The substantive sentence of rigorous imprisonment for three years to each petitioner was no doubt reduced to a term of 2 years' rigorous imprisonment on each count but a fine of Rs. 1000/-, and in default of payment of fine to further suffer six months' rigorous imprisonment was imposed on him on each count in lieu of the remitted part of the sentence. In this manner each of the petitioners shall now have to undergo rigorous imprisonment for 3 years in case of his inability to pay fine of Rs. 1000/-, on each count. Even if he undergoes rigorous imprisonment for 3 years the fine of Rs. 1000/-, on each count could be realised from his property later on if the court, for special reasons to be recorded in writing considers it necessary to do so. Such an alteration in sentence, in my opinion, does amount to enhancement, because the aggregate period of the substantive sentence and the sentence in lieu of fine has exceeded the original sentence awarded to each petitioner by the trial court. Reference in this connection may be made to a Division Bench Authority of the Assam High Court Rupan Konwar v. The State A.I.R. 1952 Assam 23, wherein the following observations were made by their Lordships of the said High Court in para 6;
As regards the question of sentence, the contention of the learned Counsel that the modification introduced by the learned Sessions in the sentence has the effect of enhancing it must prevail. By reason of the modification the petitioner shall have to undergo R.I. for one month in default of payment of fine. But even if he does undergo R.I., the fine could be realised from his property later. The result would be that in case of his inability to pay the fine he shall undergo R.I. for 6 months & his liability to pay the fine would remain. The modification in these circumstances does bring about enhancement of the sentence. This view of the law finds support from Queen Empress v. Ishri 17 All. 67. It is obvious that the learned Sessions J. had no power to enhance the sentence when hearing the appeal. In enhancing the sentence, he, exceeded his his jurisdiction and his order to this extent cannot be sustained.
Mr. D.S. Shisodia, Public Prosecutor, relied upon an authority of this Court Narayan Singh v. State & contended on its strength that in the present case the alteration made by the Sessions Judge does not amount to enhancement in law, because the substantive sentence of imprisonment and the sentence of imprisonment imposed in default of payment of fine when added did not exceed the original sentence awarded to each petitioner.
7. I have carefully gone through the authority of this Court & found it distinguishable on the facts of this case. In the authority of this Court cited by the Public Prosecutor, the original sentence of six months' rigorous imprisonment was reduced to one month's rigorous imprisonment and in lieu of the remitted part of the sentence, a fine of Rs. 200/-, and in default of payment of fine two months' further rigorous imprisonment was imposed. In this manner, the total period of the sentence was three months' rigorous imprisonment in case of inability of the accused to pay the fine, where as the original sentence was of six months' rigorous imprisonment. The learned Judge of this Court, therefore, held that if the substantive sentence of imprisonment & the sentence imposed in default of payment of fine when added did not exceed the original sentence awarded to the accused, then it cannot be said that the sentence has been enhanced. In the present case as stated earlier, the substantive sentence of imprisonment for 2 years and the sentence of six months' rigorous imprisonment imposed in default of payment of fine on each petitioner on each count when added does exceed the original sentence awarded to him by the trial court and as such a sentence can be safely said to have been enhanced by the Sessions Judge. It is not disputed before me that the Sessions Judge while hearing the appeals of the two petitioners against there conviction and sentence was not empowered under Section 386 Cr.P.C. to alter their sentences so as to enhance them.
8. For the foregoing reason, I partly accept the two revision petitions (Nos. 180/78 and 181/78) and while maintaining the conviction of each petitioner under Sections 457 read with Section 75, IPC and 380 read with Section 75, IPC and the sentences of 21 years' rigorous imprisonment awarded to him on each of the two counts, set aside the sentences of fine of Rs. 1000/-, and in default of payment of fine to further suffer rigorous imprisonment for six months on each count. The substantive sentences of imprisonment on each count shall run concurrently in the case of each petitioner. However, the period of detention, if any, under gone by each petitioner during investigation, inquiry or trial of this case and before the date of such conviction shall be set off Under Section 428, Cr.P.C.