AIR 1935 RANGOON 64

Rangoon High Court

Hon'ble Judge(s): Mosely , J

Penal Code (45 of 1860) , S.378— Whipping in addition to imprisonment cannot be awarded (or theft - Appellate Court has power to alter nature of sentence but not to enhance it - Substitution of legal sentence in lieu of whipping is enhancing sentence - Proper course is to set aside illegal portion of sentence and refer case for revision by High Court. Criminal P.C. (5 of 1898) , S.423(1)(b)(3)— Theft is not an offence which is punishable with whipping in addition to imprisonment by S. 4, Whipping Act, (1909), though it may under S. 3 of that Act be punished with whipping in lieu of imprisonment. The appellate Court has power under S. 423 (1) (b) (3), Criminal P. C., to alter the nature of the sentence, but subject to the provision that the sentence be not enhanced. The substitution of a legal sentence for the illegal part of a sentence does amount to an enhancement. The Sessions Judge could only set the sentence of whipping aside, and if he considers enhancement necessary should refer the proceedings to the High Court in revision :(Para 64C2) .....