1. The appellant was convicted under Sections 379 and 75, Indian Penal Code, of being an old offender and stealing a purse by putting his hand in the pocket of P.W. 1. He was sentenced to two years' rigorous imprisonment.
2. There is no reason at all to doubt the prosecution evidence that the accused was caught while attempting to take the purse of P.W. 1. P.W. 1. however seized the purse from outside his pocket and also the accused's hand; so that although the accused did move the purse for the purpose of committing theft, he did not commit the offence of theft, because he was unable to move the purse from the possession of P.W.I. The offence was therefore one punishable under Section 511, Indian Penal Code and not under Section 379, Indian Penal Code, as the Special Honorary Magistrate found.
3. Section 75, Indian Penal Code, does not apply to an offence punishable under Section 511, Indian Penal Code. The maximum that could therefore be imposed on 'the accused was 18 months' rigorous imprisonment. In the charge under Section 75, Indian Penal Code, only one previous conviction was referred to. In order to determine the proper sentence, it was necessary for the Magistrate to know all the previous convictions of the accused; and the learned Crown Prosecutor has now given me a list showing that he had no less than six previous convictions, and that he had not been long free after his release from jail for the last conviction before he committed the present offence. Although Section 75 cannot be applied, the fact that he had six previous convictions can be taken into account and a much higher sentence imposed than would be proper if there had been no previous convictions. Although I have no doubt that it is true that the accused was previously convicted six times, it would be unfair to take the prior five convictions into account in view of the fact that they were neither proved nor mentioned in the charge under Section 75, Indian Penal Code.
4. I reduce the sentence from two years' rigorous imprisonment which was a sentence that could not be imposed under Section 511, Indian Penal Code to one year's rigorous imprisonment. The order with regard to the notification of residence of the accused to the Police will have to be set aside, because Section 565 does not permit of such an order where the conviction is only under Section 511, Indian Penal Code.