The admissibility of the accused's statement leading to the discovery of the complainant and the consideration of previous convictions in determining the sentence under Section 379 of the Indian Penal Code.

Horwill, J.

1. The appellant was convicted by the Sessions Judge of Kistna of an offence punishable under Section 379, Indian Penal Code and sentenced to three years rigorous imprisonment.

2. The appellant was tried by jury. It was doubted at the time of admission whether the pointing out of the complainant by the accused was admissible in evidence against him; but in view of the Full Bench decision of this Court in Emperor v. Ramanuja Iyengar(1934) 68 M.L.J. (Supp.) 73 : I.L.R. Mad. 642 there can be no doubt that if a complainant is discovered as a result of a statement made by the accused, that statement is admissible; for the material fact discovered as a result of that statement is the theft from the complainant.

3. The appellant was sentenced to three years rigorous imprisonment because of a previous conviction. The accused admitted the previous conviction, but stated that it had been set aside in appeal. The learned Sessions Judge seems to have disregarded that statement altogether without any inquiry. If his statement had been true, then there would have been no proved previous convictions, and Section 75, Indian Penal Code, should not have been applied, and the sentence of three years rigorous imprisonment would have been excessive. I understand that the practice is that when a sentence has been reversed in appeal, an indorsement is made on the calendar itself. The absence of an indorsement in this case therefore indicated that there had been no reversal in appeal. I further understand, moreover, that there was no reversal in appeal and that the reason why the appellant was able to commit the crime he did when he should have been in jail was that he escaped from legal custody just before the offence was committed.

4. The learned Sessions Judge makes no reference at all to any of the convictions prior to the previous conviction to which I have referred in the above paragraph. Clearly, the number of the previous convictions is a circumstance to be taken into consideration in determining the sentence. Moreover, the Criminal Rules of Practice require that Magistrates and Judges should append to their judgments a list of previous convictions; but the learned Sessions Judge has made no attempt to do this. He has referred only to one previous conviction, whereas it appears clear from the fact that the previous conviction was under Section 75, Indian Penal Code, that there were other previous convictions. In all probability, these previous convictions were referred to in the calendar that was filed in the Sessions Court. The learned Sessions Judge should have included those previous convictions in his charge under Section 75, Indian Penal Code and got the accused to plead to them, and should then have set them out in a tabular form at the end of his judgment.

5. In the circumstances the sentence is not excessive. The appeal is dismissed.