High Court has affirmed the finding of the guilt but has erroneously set-aside the sentence of imprisonment by providing for fine of Rs. 30,000/- only. State of Andhra Pradesh versus Thadi Narayana AIR 1962 SC 240 in para 12, while considering the word reverse and alter used in Section 423 akin to Section 386 of the Code, stated as following: “12. The word “alter” must in the context be distinguished from the word “reversed”. Whereas, under S. 423(1)(b)(1)power is conferred on the High Court to reverse the order of conviction the power conferred on the Appellate Court by the expression “alter the finding” is merely the power to alter. Reversal of the order implies its obliteration, whereas alteration would imply no more than modification and not its obliteration.” = The maximum sentence under Section 328 is ten years, under Section 307 is ten years and in case of hurt, it is life imprisonment or such punishment, as mentioned above. In Section 392 IPC, the maximum punishment is for the period of fourteen years.-The convict was heard on the quantum of punishment. She pleased for a lenient view being the first offender and a young lady of about 40 years in age. She also stated that she has three minor sons and out of them two are mentally unsound.” = We are thus of the view that the fact that accused has three minor sons, out of them two are mentally retarded, was taken into consideration by trial court and after considering the aforesaid fact, sentence of imprisonment of only two years was ordered. we are of the view that order of the High Court, modifying the sentence is unsustainable and is hereby set- aside. Judgment and order of the trial court dated 05.03.2003 is restored.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.            OF 2017

[Arising out of SLP (Crl.) No. 8983 of 2012]

|STATE OF HIMACHAL PRADESH                  |…..APPELLANT(S)            |

|                                           |                             |

|VERSUS                                     |                             |

|NIRMALA DEVI                               |…..RESPONDENT(S)           |

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

Respondent herein faced trial for offence covered by Sections 328, 392,  397

read with Section 34 of the Indian Penal  Code  (IPC)  alongwith  co-accused

Krishan Lal Sharma.  When the trial was underway, both the  accused  persons

were released on bail, pending trial.  12 prosecution witnesses  (PWs)  were

examined and some more were yet to be examined.  At that  stage,  respondent

absented from court and was declared  a  proclaimed  offender.   Thereafter,

trial  proceeded  against  Krishan  Lal  Sharma,  who  was   convicted   for

committing offences  under  the  aforesaid  provisions,  for  which  he  was

charged, vide judgment dated 19th April, 2002. Later on, the respondent  was

apprehended and brought to trial  and  testimony  of  remaining  prosecution

witnesses were recorded in her case.  It culminated in  the  judgment  dated

27th February, 2003 whereby the  Sessions  Judge  convicted  the  respondent

also for the offences punishable under Sections  328,  307,  392  read  with

Section 34, IPC.  As a consequence, order of  sentence  was  passed  on  5th

March, 2003.  She was inflicted with the punishments of simple  imprisonment

for a period of two years and fine in the sum of Rs. 2,000/-, in default  of

payment of which to undergo imprisonment  for  a  further  period  of  three

months, for the offence each punishable under Sections 328, 307 and 392  IPC

with direction that all the substantive sentences were to run concurrently.

Fine of Rs. 6,000/- was directed to  be  paid  to  the  complainant,  Ramesh

Kumar as compensation.  A  sum  of  Rs.  12,000/-  was  recovered  from  the

respondent which was also ordered to be released to the complainant.

The respondent filed an appeal against the judgment dated  5th  March,  2003

passed by the Sessions Judge  in  the  High  Court.    The  High  Court  has

affirmed  the  conviction.  However,  insofar  as  award  of   sentence   is

concerned, it is drastically modified by removing imprisonment part  of  the

sentence and substituting the same with fine simplicitor  of  Rs.  30,000/-.

Concluding paragraph of the impugned  judgment  giving  reasons  for  taking

this course of action is reproduced below:

“I have given careful consideration to the submission made  by  the  learned

counsel appearing for the appellant, who submits that  the  appellant  is  a

lady and looking after her three minor sons out of  them  two  are  mentally

unsound and in these circumstances, the Court should take  a  lenient  view.

This fact was also urged before the learned trial court which  has  taken  a

lenient view of the case. What I find further  is  that  the  appellant  has

also absconded during the trial and cannot  be  considered  to  be  such  an

innocent person.  However, on the conspectus of the material on  record,  it

would be in the fitness of things in the case the sentence  of  imprisonment

under each head is set aside and instead a fine of  Rs.  30,0/-  is  imposed

upon the appellant with a direction that the  amount  be  deposited  in  the

Court of learned Sessions Judge, Chamba, Division Chamba within a period  of

six months from today failing  which  the  sentence  of  imprisonment  shall

revive.  On deposit of such fine, it shall be paid to  the  complainant.   A

direction is issued to the learned Sessions Judge,  Chamba  to  comply  with

this judgment.”

Respondent has not challenged the order against that part  of  the  judgment

whereby her conviction has been upheld by the High Court.  To  that  extent,

the judgment of the High Court has attained finality.  On the  contrary,  it

is the State which has filed the Special Leave Petition  under  Article  136

of the Constitution (out of which present appeal  arises),  questioning  the

validity, propriety and justification of  the  impugned  order  whereby  the

sentence of imprisonment is  set  aside  and  substituted  by  fine  of  Rs.

30,000/-.  Therefore, the learned counsel for  the  parties  confined  their

submissions on this aspect alone.

Before examining the issue raised, it would be apposite to take note of  the

prosecution case against the respondent  for  which  she  stands  convicted.

The case originated on the basis of  complaint  filed  by  the  complainant,

Ramesh Kumar (PW-13), resulting into registration of the FIR (Exh. PL).   He

stated therein that on 22nd August, 2000, he  left  his  house  situated  at

Preet Nagar, Jammu at around 8.40 A.M. in the morning to withdraw a  sum  of

Rs. 27,000/- from his Bank account from the Bank Satbari  for  the  purposes

of purchasing  an  auto-tempo  which  he  wanted  to  use  for  transporting

children studying in his school.  On way to the bank,  he  met  Krishan  Lal

accused, who was driving Maruti Van No. JK-02M-4392, an old acquaintance  of

the complainant.  He  asked  the  complainant  as  to  where  he  was  going

whereupon he disclosed that he was going to withdraw a sum of  Rs.  27,000/-

for purchasing an auto-tempo from Pathankot.  At that  point  of  time,  the

complainant had a sum of Rs. 4,000/- in his  pocket.   Accused  Krishan  Lal

told him that he would get him a  discount  from  an  authorized  auto-tempo

dealer at Pathankot and that he was willing to  drive  him  to  that  place.

Both went to the bank where the complainant withdrew a sum of Rs.  27,000/-.

Thereafter, accused Krishan Lal took him to his house where he was  offered

a cup of tea.  Then,  Krishan  Lal  took  him  to  the  house  of  one  lady

(respondent herein).  He informed the complainant that this lady would  also

go to Pathankot and they would go there together.   The  accused  offered  a

glass of water and thereafter a cup of  tea  after  which  the  complainant,

Ramesh Kumar, suspected that he had been made  to  ingest  some  intoxicant.

They boarded the Van where after  the  complainant  lost  consciousness.  He

regained his senses/consciousness in the Civil Hospital at Dalhousie in  the

early hours of 24th August, 2000.  He had lost all the currency.   The  case

is that the money had been looted from the complainant; he had  been  beaten

up badly and dumped in a Nullah somewhere near Dalhousie.

It is on the aforesaid allegations that the respondent  along  with  Krishan

Lal were fasten with the charges under Sections  328,  392,  307  read  with

Section  34  of  the  IPC.   As  pointed  above,  prosecution  was  able  to

substantiate the aforesaid allegations resulting into the conviction of  the

respondent.

To put  it  in  nutshell,  the  prosecution  succeeded  in  proving,  beyond

reasonable doubt, that respondent in furtherance of  common  intention  with

her co-accused had administered stupefying  intoxicating  substance  to  the

complainant with  intent  to  commission  of  offence,  that  is,  theft  of

currency notes of the complainant and in the process attempted to  kill  the

complainant as well.

At this juncture, I would like to reproduce the provisions under  which  the

respondent has been convicted.

“S. 328:   Causing hurt by means of poison, etc. with intent  to  commit  an

offence:

Whoever administers to or causes to be taken by any  person  any  poison  or

any stupefying, intoxicating  or  unwholesome  drug,  or  other  thing  with

intent to cause hurt to  such  person,  or  with  intent  to  commit  or  to

facilitate the commission of an offence or knowing it to be likely  that  he

will thereby cause hurt, shall  be  punished  with  imprisonment  of  either

description for a term which may extend to ten  years,  and  shall  also  be

liable to fine.

S. 392: Punishment for robbery:

Whoever commits robbery shall be punished with rigorous imprisonment  for  a

term which may extend to ten years, and shall also be liable to  fine;  and,

if the robbery be committed on the highway between sunset and  sunrise,  the

imprisonment may be extended to fourteen years.

S. 307 : Attempt to murder.—Whoever does any  act  with  such  intention  or

knowledge, and under such circumstances that,  if  he  by  that  act  caused

death, he would be guilty or murder, shall be punished with imprisonment  of

either description for a term which may extend to ten years, and shall  also

be liable to fine; and if hurt is caused to any  person  by  such  act,  the

offender shall be liable either  to [imprisonment  for  life],  or  to  such

punishment as is here in before mentioned.

Attempts by life convicts- [When any person offending under this section  is

under sentence of [imprisonment for life], he may, if  hurt  is  caused,  be

punished with death.]

As is clear from  the  bare  reading  of  the  aforesaid  sections,  offence

mentioned  therein  are  of  serious  nature.   Maximum  ‘imprisonment’  for

committing offence under Section 328 IPC  is  10  years  as  well  as  fine.

Likewise,  the  punishment  stipulated  in  Section  392  IPC  is  ‘rigorous

imprisonment’ for a term which may extend to 10 years, as well as  fine.  In

case of highway robbery between sunset  and  sunrise,  imprisonment  can  be

extended even to 14 years, though that is not the  case  here.   Insofar  as

Section 307 IPC is concerned, which relates  to  commission  of  offence  by

attempting to murder, again  maximum  sentence  of  imprisonment  of  either

description (i.e. simple or rigorous) upto  10  years  can  be  awarded,  in

addition to making the convict liable to pay fine.  This punishment  can  go

upto life imprisonment if hurt is caused to any person by an  act  which  is

done with the intention or knowledge that it may cause death.

In the  instant  case,  hurt  is  caused.   Following  aspects  are  clearly

discernible from the reading of these provisions:

The offences mentioned under all these Sections are of serious nature.

Maximum penalty,  under  normal  circumstances,  is  10  years  which  under

certain circumstances can even be life imprisonment (Section 307 IPC) or  14

years (under Section 392 IPC)

Whereas imprisonment under Sections 307 IPC and 328 IPC  can  be  of  either

description, namely, ‘simple imprisonment’ or ‘rigorous  imprisonment’  and,

therefore, it is left to the discretion of the trial court to award  any  of

these depending upon the circumstances of  a  case,  insofar  as  punishment

under Section 392 IPC is concerned there  is  no  such  discretion  and  the

imprisonment has to be rigorous in nature.

In the instant case, as noticed above, trial court awarded  imprisonment  of

two years, that too, simple imprisonment for all the  three  offences  which

was to run concurrently.  The record shows that it was  pleaded  before  the

trial court that respondent is a lady and further that she had  three  minor

sons.  These considerations persuaded the trial  court  to  take  a  lenient

view.  In the appeal filed by the respondent before the High Court,  on  the

question of sentence same very circumstances were pleaded,   which  resulted

in mellowing the High Court further by setting aside the  imprisonment  part

of sentencing and modifying the sentence to that of  fine  of  Rs.  30,000/-

alone.

In this context and factual background, two points arise for  consideration,

viz.:

Whether the  High  Court  was  permitted,  in  law,  to  do  away  with  the

punishment of imprisonment altogether and substitutes  the  same  with  fine

alone?

Whether the circumstances pleaded by the respondent were so mitigating  that

punishment of fine alone could be justified?

Coming to the first question, as can be seen from the language  of  Sections

307, 328 and 392 of IPC, all these sections provide for  imprisonment  ‘and’

fine.  In fact, after specifying particular term of imprisonment, all  these

sections use the words ‘and shall also be liable to fine’.  This  expression

came up for consideration in Zunjarrao Bhikaji Nagarkar v. Union of India  &

Ors.[1]  and  the  Court  explained  that  in  such  circumstances,  it   is

imperative to impose both the sentences i.e. imprisonment as well  as  fine.

Thus, there has to  be  punishment  of  imprisonment  in  respect  of  these

offences, and  in  addition,  the  convict  is  also  liable  to  pay  fine.

Therefore, awarding the punishment of  imprisonment  is  a  must  and  there

cannot be a situation where no imprisonment is imposed  at  all.   The  High

Court was,  therefore,  clearly  wrong  in  not  inflicting  a  sentence  of

imprisonment, by modifying the sentence  awarded  by  the  trial  court  and

obliterating the  sentence  of  imprisonment  altogether.   Thus,  the  very

approach of the High Court in substituting the sentence  by  fine  alone  is

impermissible in law.

Section 386 of the Code of Criminal Procedure  enlists  the  powers  of  the

appellate court while hearing the appeals  from  the  trial  court.   In  an

appeal from conviction, if  the  conviction  is  maintained,  the  appellate

court has the power to alter the nature or the extent,  or  the  nature  and

extent, of the sentence (though it cannot enhance the same).  However,  such

a power has to be exercised in terms of the provisions of Indian Penal  Code

etc. for which the accused has been convicted.  Power to alter the  sentence

would not extend to exercising the  powers  contrary  to  law.   It  clearly

follows that the High Court committed a legal error in doing away  with  the

sentence of imprisonment altogether.

The second question is as  to  whether  the  circumstances  pleaded  by  the

respondent justify taking a lenient view in the matter.  The acts  committed

by the respondent constitute  heinous  offences.   Having  common  intention

along with  co-accused,  she  administered  poison  like  substance  to  the

complainant; robbed him of his money; and even attempted to  kill  him.   As

already held, award of sentence is imprisonment is  a  must.   The  question

is, in the wake of the commission of crime of this nature,  to  what  extent

the mitigating factor viz. the respondent being a  woman  and  having  three

minor children, be taken for the purposes of sentencing?

In Zunjarrao Bhikaji Nagarkar’s case, it was impressed upon  by  this  Court

that the penalty to be imposed has to commensurate with the gravity  of  the

offence.  In Narinder Singh & Ors. v. State of Punjab & Anr.[2], there is  a

brief narration of the jurisprudential theories of  punishment  in  criminal

cases, described as under:

“14. The law prohibits certain  acts  and/or  conduct  and  treats  them  as

offences. Any person committing those acts is subject to penal  consequences

which may be of various kinds. Mostly, punishment  provided  for  committing

offences is either imprisonment or monetary fine or both.  Imprisonment  can

be rigorous or simple in nature. Why are those persons who  commit  offences

subjected to such penal consequences? There  are  many  philosophies  behind

such    sentencing    justifying    these    penal     consequences.     The

philosophical/jurisprudential    justification    can    be     retribution,

incapacitation, specific deterrence, general deterrence, rehabilitation,  or

restoration. Any of the above or a combination thereof can be  the  goal  of

sentencing.

15. Whereas  in  various  countries,  sentencing  guidelines  are  provided,

statutorily or otherwise, which  may  guide  Judges  for  awarding  specific

sentence, in India we do not have any such sentencing policy till date.  The

prevalence of such guidelines may not only aim  at  achieving  consistencies

in  awarding  sentences  in  different  cases,  such   guidelines   normally

prescribe the sentencing policy as well,  namely,  whether  the  purpose  of

awarding punishment in  a  particular  case  is  more  of  a  deterrence  or

retribution or rehabilitation, etc. In the absence  of  such  guidelines  in

India, the courts go by their own perception  about  the  philosophy  behind

the prescription of certain  specified  penal  consequences  for  particular

nature  of  crime.  For  some  deterrence  and/or  vengeance  becomes   more

important whereas another Judge may be more influenced by rehabilitation  or

restoration as the goal of sentencing. Sometimes, it would be a  combination

of both which would weigh in the mind of the court in awarding a  particular

sentence. However, that may be a question of quantum.

16. What follows from the discussion behind the  purpose  of  sentencing  is

that if a particular crime is to be treated as  crime  against  the  society

and/or heinous  crime,  then  the  deterrence  theory  as  a  rationale  for

punishing the offender becomes more relevant, to be applied in  such  cases.

Therefore, in respect  of  such  offences  which  are  treated  against  the

society, it becomes the duty of the State  to  punish  the  offender.  Thus,

even when there is a settlement between the offender and the  victim,  their

will would not prevail as in such cases the  matter  is  in  public  domain.

Society demands that the individual offender should be punished in order  to

deter other effectively as it amounts  to  greatest  good  of  the  greatest

number of persons in a society. It is  in  this  context  that  we  have  to

understand the scheme/philosophy behind Section 307 of the Code.

17. We would like to expand this principle in some more detail. We find,  in

practice and in reality, after recording the conviction and  while  awarding

the sentence/punishment the court is generally governed by  any  or  all  or

combination of the  aforesaid  factors.  Sometimes,  it  is  the  deterrence

theory which prevails in the minds  of  the  court,  particularly  in  those

cases where the crimes committed are heinous in nature or depict  depravity,

or lack morality. At times it is to satisfy the element of “emotion” in  law

and retribution/vengeance becomes  the  guiding  factor.  In  any  case,  it

cannot be denied that the  purpose  of  punishment  by  law  is  deterrence,

constrained by considerations of justice. What, then, is the role of  mercy,

forgiveness and compassion  in  law?  These  are  by  no  means  comfortable

questions and even the answers may not be comforting. There may  be  certain

cases which are too obvious, namely,  cases  involving  heinous  crime  with

element of criminality against the society and  not  parties  inter  se.  In

such cases, the deterrence as purpose of punishment  becomes  paramount  and

even if the victim or his relatives have shown  the  virtue  and  gentility,

agreeing to forgive the culprit, compassion of that private party would  not

move the court in accepting the same as larger  and  more  important  public

policy of showing the iron hand of law to  the  wrongdoers,  to  reduce  the

commission of such offences, is more important. Cases of  murder,  rape,  or

other sexual offences, etc. would clearly fall in this category. After  all,

justice requires long-term vision. On the other hand, there may be  offences

falling in the category where the “correctional” objective of  criminal  law

would have  to  be  given  more  weightage  in  contrast  with  “deterrence”

philosophy. Punishment, whatever else may be, must be fair and conducive  to

good rather than further evil. If in a particular case the court is  of  the

opinion that the settlement between the parties would  lead  to  more  good;

better relations between them; would  prevent  further  occurrence  of  such

encounters between the parties, it may hold settlement to  be  on  a  better

pedestal. It is a delicate balance between  the  two  conflicting  interests

which is to be achieved by the court after examining  all  these  parameters

and then deciding as  to  which  course  of  action  it  should  take  in  a

particular case.”

The offences  for  which  the  respondent  is  convicted  prescribe  maximum

imprisonment and there is no  provision  for  minimum  imprisonment.   Thus,

there is a wide discretion given to the Court  to  impose  any  imprisonment

which may be from one day (or even till the rising  of  the  court)  to  ten

years/life.  However, at the same time, the judicial  discretion  which  has

been conferred upon the Court, has to be exercised in a fair manner  keeping

in view the well established judicial principles which have been  laid  down

from time to time, the prime  consideration  being  reason  and  fair  play.

Some of the judgments highlighting the manner in which discretion has to  be

exercised were taken note of in Satish Kumar Jayanti Lal Dabgar v. State  of

Gujarat[3] and I may reproduce the same:

“18.  Likewise,  this  Court  made  the  following  observations   regarding

sentencing   in   the   cases   involved   in   sexual   offences   in Sumer

Singh v. Surajbhan Singh [(2014) 7 SCC 323 : (2014) 3 SCC (Cri) 184] :  (SCC

pp. 337-39, paras 33-36)

“33.  It is seemly to state here that though the question of sentence  is  a

matter of discretion, yet the said discretion cannot be used by a  court  of

law  in  a  fanciful  and  whimsical  manner.   Very   strong   reasons   on

consideration of the relevant factors have to form the fulcrum  for  lenient

use of the said discretion. It  is  because  the  ringing  of  poignant  and

inimitable expression, in a way, the warning of Benjamin N.  Cardozo  in The

Nature of the Judicial Process—Yale University Press, 1921 Edn., p. 114:

‘The Judge even when he is free, is still not wholly  free.  He  is  not  to

innovate at pleasure. He is not a knight errant roaming at will  in  pursuit

of his own ideal of beauty or of goodness. He is  to  draw  his  inspiration

from consecrated principles. He is not to yield to spasmodic  sentiment,  to

vague and unregulated benevolence. He is to exercise a  discretion  informed

by  tradition,  methodised  by   analogy,   disciplined   by   system,   and

subordinated to “the primordial necessity of order in social life”.’

34.  In this regard, we may usefully quote  a  passage  from Ramji  Dayawala

and Sons (P) Ltd. v. Invest Import [(1981) 1 SCC 80] : (SCC p. 96, para 20)

“20.  … when it is said that a matter is within the discretion of the  court

it is to be exercised according  to  well-established  judicial  principles,

according to reason and fair play, and not according to  whim  and  caprice.

“Discretion”, said Lord Mansfield  in R. v. Wilkes [(1770)  4  Burr  2527  :

(1558-1774) All ER Rep 570 : 98 ER 327]  ,  “when  applied  to  a  court  of

justice, means sound discretion guided by law. It must be governed by  rule,

not by humour; it must not be arbitrary, vague, and fanciful, but legal  and

regular” (see Craies on Statute Law, 6th Edn., p. 273).’

35.  In Aero Traders (P) Ltd. v. Ravinder Kumar Suri [(2004) 8 SCC 307]  the

Court observed: (SCC p. 311, para 6)

“6. … According to Black’s Law Dictionary “judicial  discretion”  means  the

exercise of judgment by a Judge or court based on what  is  fair  under  the

circumstances and guided by the rules  and  principles  of  law;  a  court’s

power to act or not act when a litigant is not entitled to  demand  the  act

as a matter of right. The word “discretion” connotes necessarily an  act  of

a judicial character, and, as used with reference  to  discretion  exercised

judicially, it implies the absence of a hard-and-fast rule, and it  requires

an actual exercise  of  judgment  and  a  consideration  of  the  facts  and

circumstances  which  are  necessary  to  make  a  sound,  fair   and   just

determination, and a knowledge of the facts upon which  the  discretion  may

properly operate. (See 27 Corpus Juris Secundum, p. 289.) When  it  is  said

that something is to be done within the discretion of the authorities,  that

something is to be done according to the rules of  reason  and  justice  and

not according to private opinion; according to law and not humour.  It  only

gives certain latitude or liberty accorded by statute or rules, to  a  Judge

as  distinguished  from  a  ministerial  or  administrative   official,   in

adjudicating on matters brought before him.’

Thus, the Judges are to constantly remind themselves that the  use  of

discretion has to be guided by law, and what is  fair  under  the  obtaining

circumstances.

36.  Having discussed about the discretion, presently  we  shall  advert  to

the duty of the court in the exercise of power while imposing  sentence  for

an offence. It is the duty of the court to  impose  adequate  sentence,  for

one of the purposes of imposition of requisite  sentence  is  protection  of

the society and a legitimate response  to  the  collective  conscience.  The

paramount principle that should be  the  guiding  laser  beam  is  that  the

punishment should be proportionate. It is the answer of law  to  the  social

conscience. In a way, it is an obligation to the society which  has  reposed

faith in the court of law to curtail the evil. While imposing  the  sentence

it is the court’s accountability to remind itself about  its  role  and  the

reverence for  rule  of  law.  It  must  evince  the  rationalised  judicial

discretion and not an individual perception or a moral propensity.  But,  if

in  the  ultimate  eventuate  the  proper  sentence  is  not  awarded,   the

fundamental grammar of sentencing is guillotined. Law  cannot  tolerate  it;

society does not withstand it; and sanctity of  conscience  abhors  it.  The

old saying ‘the law can hunt one’s past’ cannot be allowed to be  buried  in

an indecent manner and the rainbow  of  mercy,  for  no  fathomable  reason,

should be allowed to rule. True it is, it has its  own  room,  but,  in  all

circumstances, it cannot be allowed to occupy the whole  accommodation.  The

victim, in this case,  still  cries  for  justice.  We  do  not  think  that

increase in fine amount or grant of compensation under the Code would  be  a

justified answer in law. Money cannot be the oasis.  It  cannot  assume  the

centre stage for all redemption. Interference in manifestly  inadequate  and

unduly lenient sentence is the justifiable warrant,  for  the  Court  cannot

close its eyes to the agony and anguish of the victim  and,  eventually,  to

the cry of the society. Therefore, striking the balance we are  disposed  to

think that the cause of justice would be best subserved  if  the  respondent

is sentenced to undergo rigorous imprisonment for two years apart  from  the

fine that has been imposed by the learned trial Judge.”

Likewise, stressing upon the principle of proportionality in  sentencing  in

the case of Hazara Singh v. Raj Kumar & Ors.[4], this  Court  stressed  that

special reasons must be assigned for taking lenient view and undue  sympathy

for accused is not justified.  It was equally  important  to  keep  in  mind

rights of victim as well as society at large and the  corrective  theory  on

the one hand and deterrence principle on the other hand  should  be  adopted

on the  basis  of  factual  matrix.   Following  paragraphs  from  the  said

judgment under the caption ‘sentencing policy’ need to be referred to:

“11. The cardinal principle  of  sentencing  policy  is  that  the  sentence

imposed on an offender should reflect the crime  he  has  committed  and  it

should be proportionate to the  gravity  of  the  offence.  This  Court  has

repeatedly stressed the central role of  proportionality  in  sentencing  of

offenders in numerous cases.

12.   The  factual  matrix  of  this  case  is  similar  to  the  facts  and

circumstances in Shailesh Jasvantbhai  v. State  of  Gujarat [(2006)  2  SCC

359 : (2006) 1 SCC (Cri)  499]  wherein  the  accused  was  convicted  under

Sections 307/114 IPC and for the same the trial court sentenced the  accused

for 10 years. However,  the  High  Court,  in  its  appellate  jurisdiction,

reduced the sentence to the period already undergone.  In  that  case,  this

Court held that the sentence imposed is not  proportionate  to  the  offence

committed, hence not sustainable in the eye of the law. This Court  observed

thus: (SCC pp. 361-62, paras 7-8)

“7. The law regulates social interests, arbitrates  conflicting  claims  and

demands. Security of persons and property of  the  people  is  an  essential

function of the State. It  could  be  achieved  through  instrumentality  of

criminal law. Undoubtedly, there is a cross-cultural conflict  where  living

law must find answer to the new challenges and the courts  are  required  to

mould the sentencing  system  to  meet  the  challenges.  The  contagion  of

lawlessness would undermine social order and lay it in ruins. Protection  of

society and stamping out criminal proclivity  must  be  the  object  of  law

which must be achieved by imposing appropriate sentence. Therefore,  law  as

a  cornerstone  of  the  edifice  of  ‘order’  should  meet  the  challenges

confronting the society. Friedman  in  his Law  in  Changing  Society stated

that: ‘State of criminal law continues to  be—as  it  should  be—a  decisive

reflection of social consciousness of society.’ Therefore, in operating  the

sentencing system, law should adopt the corrective machinery  or  deterrence

based on factual matrix. By deft modulation,  sentencing  process  be  stern

where it should be, and tempered with mercy where it  warrants  to  be.  The

facts and given circumstances in each case, the nature  of  the  crime,  the

manner in which it was planned and committed, the motive for  commission  of

the crime, the conduct of the accused, the nature of weapons  used  and  all

other attending circumstances are relevant facts which would enter into  the

area of consideration.

8.  Therefore, undue sympathy to impose inadequate sentence  would  do  more

harm to the justice  system  to  undermine  the  public  confidence  in  the

efficacy of law and  society  could  not  long  endure  under  such  serious

threats. It is, therefore, the duty of every court to award proper  sentence

having regard to the nature of the offence and the manner in  which  it  was

executed or committed, etc.”

13.  This position was reiterated by  a  three-Judge  Bench  of  this  Court

in Ahmed Hussein Vali Mohammed Saiyed  v. State of Gujarat   [(2009)  7  SCC

254 : (2009) 3 SCC (Cri) 368], wherein it was observed as follows:  (SCC  p.

281, paras 99-100)

“99. … The object of awarding appropriate sentence should be to protect  the

society and to deter the criminal from achieving the avowed object  to  (sic

break the) law by imposing appropriate sentence. It  is  expected  that  the

courts would operate the sentencing system so as  to  impose  such  sentence

which reflects the conscience of the society and the sentencing process  has

to be stern where it should be. Any  liberal  attitude  by  imposing  meagre

sentences or taking too sympathetic view merely on account of lapse of  time

in respect of such offences will  be  resultwise  counterproductive  in  the

long run and against the interest of society which needs  to  be  cared  for

and strengthened by string of deterrence inbuilt in the sentencing system.

100.  Justice demands that courts should  impose  punishment  befitting  the

crime so that the courts reflect public abhorrence of the crime.  The  court

must not only keep in view the rights of the victim of  the  crime  but  the

society  at  large  while  considering   the   imposition   of   appropriate

punishment. The court will be failing in its duty if appropriate  punishment

is not awarded for a crime which has been committed  not  only  against  the

individual victim but also against the society to which  both  the  criminal

and the victim belong.”

In that case, the Court further goes to state that meagre  sentence  imposed

solely on account of lapse of time without considering  the  degree  of  the

offence will be counterproductive in the long run and against  the  interest

of the society.

14.  In Jameel  v. State of U.P. [(2010) 12 SCC 532 :  (2011)  1  SCC  (Cri)

582], this Court reiterated the principle by  stating  that  the  punishment

must  be  appropriate  and  proportional  to  the  gravity  of  the  offence

committed. Speaking about the concept of  sentencing,  this  Court  observed

thus: (SCC p. 535, paras 15-16)

“15.  In operating the sentencing system, law should  adopt  the  corrective

machinery or  deterrence  based  on  factual  matrix.  By  deft  modulation,

sentencing process be stern where it should  be,  and  tempered  with  mercy

where it warrants to be. The facts and given  circumstances  in  each  case,

the nature of the crime, the manner in which it was planned  and  committed,

the motive for commission of the crime, the  conduct  of  the  accused,  the

nature of weapons used and all other attending  circumstances  are  relevant

facts which would enter into the area of consideration.

16.  It is the duty of every court to award proper  sentence  having  regard

to the nature of the offence and the manner in  which  it  was  executed  or

committed. The sentencing courts  are  expected  to  consider  all  relevant

facts and circumstances bearing on the question of sentence and  proceed  to

impose a sentence commensurate with the gravity of the offence.”

15.  In Guru Basavaraj v. State of Karnataka [(2012) 8 SCC 734  :  (2012)  4

SCC (Civ) 594 : (2013) 1 SCC (Cri) 972], while  discussing  the  concept  of

appropriate sentence, this Court expressed that: (SCC pp. 744-45, para 33)

“33. … It is the duty of the court  to  see  that  appropriate  sentence  is

imposed regard being had to the commission of the crime and  its  impact  on

the social order. The cry of  the  collective  for  justice  which  includes

adequate punishment cannot be lightly ignored.”

16.  Recently, this Court in Gopal Singh v. State of  Uttarakhand [(2013)  7

SCC 545 : (2013) 3 SCC (Cri) 608 : JT (2013) 3 SC 444] held as  under:  (SCC

p. 551, para 18)

“18. Just punishment is  the  collective  cry  of  the  society.  While  the

collective cry has to be kept uppermost  in  the  mind,  simultaneously  the

principle of proportionality between the  crime  and  punishment  cannot  be

totally brushed aside. The principle of just punishment is  the  bedrock  of

sentencing in respect of a criminal offence.”

17. We reiterate that in operating the sentencing system, law  should  adopt

the corrective machinery or deterrence based on factual  matrix.  The  facts

and given circumstances in each case, the nature of the  crime,  the  manner

in which it was planned and committed, the  motive  for  commission  of  the

crime, the conduct of the accused, the nature of weapons used and all  other

attending circumstances are relevant facts which would enter into  the  area

of  consideration.  We  also  reiterate  that  undue  sympathy   to   impose

inadequate sentence would do more harm to the justice  system  to  undermine

the public confidence in the efficacy of law. It is the duty of every  court

to award proper sentence having regard to the nature of the offence and  the

manner in which it was executed or committed. The court must not  only  keep

in view the rights of the victim of the crime but also the society at  large

while considering the imposition of appropriate punishment.”

Following principles can be  deduced  from  the  reading  of  the  aforesaid

judgment:

Imprisonment is one of the methods used to handle the convicts  in  such  a

way to protect and prevent them to commit  further  crimes  for  a  specific

period of time and also to prevent others from committing crime on them  out

of vengeance.  The concept of punishing the criminals  by  imprisonment  has

recently been changed to treatment and rehabilitation with a view to  modify

the criminal tendency among them.

There are many philosophies behind such sentencing  justifying  these  penal

consequences.  The  philosophical/jurisprudential   justification   can   be

retribution,  incapacitation,  specific  deterrence,   general   deterrence,

rehabilitation, or restoration. Any of the above or  a  combination  thereof

can be the goal of sentencing.

Notwithstanding  the  above  theories  of  punishment,  when  it  comes   to

sentencing a person for committing a heinous crime,  the  deterrence  theory

as a rationale for punishing the offender becomes more  relevant.   In  such

cases, the role of mercy, forgiveness and compassion becomes secondary.

In such cases where the deterrence theory has to prevail, while  determining

the quantum of sentence, discretion lies with the Court.   While  exercising

such a discretion, the Court has to govern itself by reason and  fair  play,

and discretion is not to be exercised according to whim and caprice.  It  is

the duty of the Court to impose adequate sentence, for one of  the  purposes

of imposition of requisite sentence is  protection  of  the  society  and  a

legitimate response to the collective conscience.

While  considering  as  to  what  would  be  the  appropriate   quantum   of

imprisonment, the Court is empowered to take into  consideration  mitigating

circumstances, as well as aggravating circumstances.

When the Indian Penal  Code  provides  discretion  to  Indian  Judges  while

awarding  the  sentence,  the  Court  will  have   undoubtedly   regard   to

extenuating and mitigating circumstances.  In this  backdrop,  the  question

is as to whether  the  respondent  being  a  lady  and  having  three  minor

children will be extenuating reasons?  I may observe that in many  countries

of the world, gender is not a mitigating factor.  Some jurists  also  stress

that in this world of gender equality, women should be treated at  par  with

men even as regards equal offences committed by them.  Women  are  competing

men in the criminal world; they are emulating them in all  the  crimes;  and

even surpassing men at times.  Therefore, concept  of  criminal  justice  is

not necessarily synonymous with social justice.  Eugene Mc Laughlin shows  a

middle path.  She finds that predominant thinking is  that  ‘paper  justice’

would demand giving similar penalty for similar offences.  However, when  it

comes to doing ‘real justice’, element  of  taking  the  consequences  of  a

penalty cannot be ignored.  Here, while doing  ‘real  justice’  consequences

of awarding punishment to a female offender are to be  seen.   According  to

her, ‘real justice’ would consider the likelihood that a child might  suffer

more from a mother’s imprisonment than that of  his  father’s.   Insofar  as

Indian judicial mind is concerned, I find that in certain decisions of  this

Court, gender is  taken  as  the  relevant  circumstance  while  fixing  the

quantum of sentence.  I may add that it would depend upon the facts of  each

case, whether it should be treated as a relevant consideration and  no  hard

and fast rule can be laid down.  For example, where a woman has committed  a

crime being a part of a terrorist group, mercy  or  compassion  may  not  be

shown.

In the present case, two mitigating circumstances  which  are  pressed  into

service by the respondent are that she is a woman and she  is  having  three

minor children.  This has to be balanced with the nature of crime which  the

respondent has committed. As can be seen,  these  circumstances  were  taken

into consideration by the trial court and on that  basis,  the  trial  court

took a lenient view by awarding imprisonment for two  years  in  respect  of

each of the offences under Sections 307, 328 and 392 of the IPC, which  were

to be run concurrently.  There was no reason to show any  further  mercy  by

the  High  Court.   Further,  as  found  above,  removing  the  element   of

imprisonment altogether was, in any case, erroneous in law.  I, thus,  allow

this appeal and set aside the sentencing part of the judgment  of  the  High

Court and restore the judgment of the trial court.

………………………………………J.

(A.K. SIKRI)

NEW DELHI;

APRIL 10, 2017.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO……..2017

(ARISING OUT OF SLP (Crl.)NO. 8983 OF 2012)

STATE OF H. P.                          ….APPELLANT

VERSUS

NIRMALA DEVI                                  ….RESPONDENT

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted. I had advantage of going through the  erudite  judgment

of brother Justice A. K. Sikri and I am in full agreement with  the  opinion

expressed by brother Justice A. K.  Sikri.  Looking  to  the  importance  of

issues involved in this appeal, I have also penned my reasons.

2.    State of Himachal Pradesh  has  filed  this  appeal,  challenging  the

judgment of the High Court dated 03.07.2012 by which, criminal appeal  filed

by the respondent-accused had been decided, setting-aside  the  sentence  of

the imprisonment under Section 328, 392 and 307 IPC and modifying  the  fine

of Rs. 2000/- to a fine of Rs. 30,000/-.

3.    The brief facts necessary to be noted for deciding the  issues  raised

in the appeal are:

a. On 22.08.2000, Rakesh  Kumar  (complainant),  Resident  of  Preet  Nagar,

Jammu, left his house for withdrawing a sum of Rs.  27,000/-  lying  in  his

account in a bank at Satbari for purchasing an auto-tempo from Pathankot  as

the complainant was running a private school upto middle class in Jammu.

b. When the complainant was on his way to Bank and reached near Digyana  Bus

Stand, he met Krishan Lal Sharma (Accused No. 1) in  his Maruti Van  No.  JK

-02M-4392.

c. Then the Accused  No.  1  took  the  complainant  to  the  house  of  his

neighbour  Smt.  Nirmala  Devi  (respondent-accused).   The  Accused  No.  1

informed the complainant that since the Respondent-Accused also  had  to  go

to Pathankot, therefore, they all would go together. In  the  house  of  the

Respondent-Accused, the  complainant  was  offered  a  glass  of  water  and

thereafter a cup of tea after which the complainant suspected  that  he  had

been made to ingest some intoxicant.  Thereafter, all boarded the van  where

the complainant became unconscious and did not remember as to where  he  was

taken.

d. On 24.8.2000, the complainant  made  a  statement  to  the  Inspector/SHO

Kishan Chand, P. S. Dalhousie, District Chamba at Civil Hospital,  Dalhousie

which was recorded under Section 154 Criminal Procedure Code  narrating  the

whole incident mentioned above.

e. On the compliant, FIR No. 80 of 2000 was registered at P.  S.  Dalhousie.

Upon investigation, it was found that the  Accused  No.  1  and  Respondent-

Accused had conspired to rob the complainant of his money.  The  Respondent-

Accused mixed some tablet in the tea offered to the complainant  because  of

which the complainant became unconscious. In the van,  the  complainant  was

strangulated  with  a  green   dupatta   of   Respondent-Accused.   In   the

investigation, it was found out that both  Accused  No.  1  and  Respondent-

Accused after ensuring that the complainant had died,  threw  him  down  the

road in a nullah near village Dhundiara. Thereafter, both went to  Dalhousie

and stayed at Kumar Hotel for night.  The complainant  was  found  lying  in

nullah by one Shri Tej Ram who had gone to his field  to  check  the  crops.

The complainant was brought out from nullah by Tej  Ram  with  the  help  of

another person and then taken to private clinic.  On getting the first  aid,

the  complainant  was  taken  to  Civil  Hospital  in  Dalhousie  where  the

statement was made.

f. On 19.04.2002, Accused No. 1 was convicted  and  sentenced  for  offences

punishable under Section 328, 392, 397 IPC vide  judgment  dated  19.4.2002.

During the trial of the  Respondent-accused,  she  was  declared  proclaimed

offender. Upon being apprehended, the remaining prosecution  witnesses  were

recorded.

4.    The  learned  Sessions  Judge  convicted  the  respondent-accused  for

offences under Section 328, 392 and 397 read  with  Section  34  IPC.  After

recording the conviction,  the  learned  Sessions  Judge  imposed  following

sentence:

“……she is ordered to undergo simple  imprisonment  for  a  period  of  two

years and to pay fine in the sum of Rs. 2,000/- in  default  of  payment  of

which to undergo imprisonment for a further period of three months  for  the

offence punishable under Section 328 IPC, simple imprisonment for  a  period

of two years and also to pay  fine in the sum of Rs. 2,000/- in  default  of

payment of which to undergo simple imprisonment  for  a  further  period  of

three months for the  offence  punishable  under  Section  307  IPC  and  to

undergo simple imprisonment for a period of two years and  to  pay  fine  in

the sum Rs. 2,000/- in  default  of  payment  to  which  to  undergo  simple

imprisonment  for  a  further  period  of  three  months  for  the   offence

punishable under  Section  392  IPC.   All  the  substantive  sentences  are

ordered to run concurrently.”

5.    The respondent filed Criminal Appeal No. 79 of 2003,  which  had  been

heard and decided by High Court vide its  judgment  dated  03.07.2012.  High

Court taking a lenient view on sentence decided the appeal  by  passing  the

following order:

“However, on the conspectus of the material on record, it would  be  in  the

fitness of things in case the sentence of imprisonment under  each  head  is

set aside and instead a fine of Rs. 30, 000/- is imposed upon the  appellant

with a direction that the amount  be  deposited  in  the  Court  of  learned

Sessions Judge, Chamba, Division Chamba within a period of six  months  from

today failing which the sentence of imprisonment shall  revive.  On  deposit

of such fine, it shall be paid to the complainant.  A  direction  is  issued

to the learned Sessions Judge, Chamba to comply with this judgment.”

6.    We have heard learned counsel for the State of Himachal  Pradesh,  Ms.

Promila and Shri K. K. Mani for the accused. Learned counsel  for  appellant

in support of appeal contends that High Court  erred  in  setting-aside  the

sentence of imprisonment by substituting it, by enhancement  of  the  amount

of fine. The reduction of sentence by the High Court was not  in  accordance

with the provisions of Indian Penal Code.  The  order  passed  by  Appellate

Court is not in accordance with the power given under  Section  386  of  the

Code of Criminal Procedure 1973 (hereinafter referred  to  as  “the  Code”).

High Court while exercising the power  under  Section  386(b)  of  the  Code

could have reduced the sentence, but while maintaining the  finding  of  the

guilt could not have set-aside the sentence of imprisonment.

7.    Learned counsel for the respondent-accused submitted that  High  Court

has rightly enhanced the fine by setting-aside the sentence of  imprisonment

in view of the facts & circumstances of  the  case.  The  respondent-accused

being a lady, who had to look after three minor sons, out of them two  being

mentally unsound, sentence of imprisonment has rightly been  set-aside.  The

judgment and order of the High Court being just and  equitable,  this  Court

need not interfere with the alteration  of  sentence  ordered  by  the  High

Court.

8.    We have considered the submissions of  the  learned  counsel  for  the

parties and have perused the record carefully. The only issue, which  arises

in this appeal for determination is,  as  to  whether,  the  High  Court  in

exercise of its appellate jurisdiction under Section 386 of the  Code  could

have set-aside the sentence of  imprisonment,  as  imposed  by  trial  court

under Section 328, 392 and 307 IPC by enhancing the amount of  fine  to  Rs.

30,000/- from the fine Rs. 2,000/- as ordered by trial court.

9.    Section 386 of the Code provides for ‘power of the  Appellate  Court’.

Section 386 of the Code which is relevant for the  present  case  is  quoted

below:

“386.Powers of the Appellate  Court.  –  After  perusing  such  record  and

hearing the appellant  or  his  pleader,  if  he  appears,  and  the  Public

Prosecutor if he appears, and in case of an  appeal  under  section  377  or

section 378, the accused, if he appears, the  Appellate  Court  may,  if  it

considers that there is no sufficient ground for  interfering,  dismiss  the

appeal, or may-

(a) in an appeal from an order or acquittal, reverse such order  and  direct

that further inquiry be made, or that the accused be re- tried or  committed

for trial, as the case may be, or find him guilty and pass sentence  on  him

according to law;

(b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or  discharge  the  accused,

or  order  him  to  be  re-tried  by  a  Court  of  competent   jurisdiction

subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the  extent,

or the nature and extent, of the sentence, but not  so  as  to  enhance  the

Same;

(c) in an appeal for enhancement of sentence-

(i) reverse the finding and sentence and acquit or discharge the accused  or

order him to be re- tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the  extent,

or the nature and extent, of the sentence, so as to enhance  or  reduce  the

same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may  be

just or proper;

Provided that the sentence shall not be enhanced  unless  the  accused

has had an opportunity of showing cause against such enhancement:

Provided further  that  the  Appellate  Court  shall  not  inflict  greater

punishment for the offence which in its opinion the accused  has  committed,

than might have been inflicted for that offence by  the  Court  passing  the

order or sentence under appeal.”

10.   A perusal of the judgment of the High Court indicates  that  the  High

Court had not interfered with the finding of guilt as recorded by the  trial

court. In para 10 of the judgment, High Court stated as follows:

“Further from the fact that the money has been recovered from  the  accused,

there is no doubt in mind that the appellant is guilty for the  offences  as

charged. I cannot accept this submission that the evidence of the  witnesses

does not prove the guilt of the accused.  There is thus  no  merit  in  this

appeal which is accordingly dismissed.”

11.   High Court thus has not reversed the finding of the guilt and  without

altering the finding of the guilt recorded by trial court, has  altered  the

sentence. In altering the sentence High Court has exercised its power  under

Section 386(b)(iii) of  the  Code.  What  is  the  meaning  and  content  of

‘Statutory Scheme’ as delineated by the  words  ‘alter  the  nature  or  the

extent of the sentence, but not so  as  to  enhance  the  same’  has  to  be

considered and answered in this appeal. Whether in  altering  the  sentence,

the High Court is empowered to alter the sentence to an extent  which  could

not have been awarded by the trial court after recording the finding of  the

guilt?

12.   In the present case, accused has been convicted  under  Sections  307,

328 and 392 IPC. It is useful to look into the above provisions to find  out

nature of  sentence  which  could  be  awarded  for  an  offence  under  the

aforesaid sections. Sections 307, 328 & 392 IPC are extracted as below:

“307. Attempt to murder.— Whoever  does  any  act  with  such  intention  or

knowledge, and under such circumstances that,  if  he  by  that  act  caused

death, he would be guilty of murder, shall be punished with imprisonment  of

either description for a term which may extend to ten years, and shall  also

be liable to fine; and if hurt is caused to any  person  by  such  act,  the

offender shall be liable either to 1[imprisonment  for  life],  or  to  such

punishment as is hereinbefore mentioned.

Attempts by life convicts.—2[When any person offending  under  this  section

is under sentence of 1[imprisonment for life], he may, if  hurt  is  caused,

be punished with death.]

328. Causing hurt by means  of  poison,  etc.,  with  intent  to  commit  an

offence.— Whoever administers to or causes to be taken  by  any  person  any

poison or any stupefying, intoxicating or unwholesome drug, or  other  thing

with intent to cause hurt to such person, or with intent  to  commit  or  to

facilitate the commission of an offence or knowing it to be likely  that  he

will thereby cause hurt, shall  be  punished  with  imprisonment  of  either

description for a term which may extend to ten  years,  and  shall  also  be

liable to fine.

392. Punishment for robbery.— Whoever  commits  robbery  shall  be  punished

with rigorous imprisonment for a term which may extend  to  ten  years,  and

shall also be liable to fine; and,  if  the  robbery  be  committed  on  the

highway between sunset and sunrise, the  imprisonment  may  be  extended  to

fourteen years.“

13.   The trial court after holding the accused  guilty  has  sentenced  her

for rigorous imprisonment of two years with fine of  Rs.2,000/-  in  default

of payment, further simple imprisonment for a period  of  three  months  for

each of the above offences.

14.   What is the content and meaning of the word ‘shall  be  punished  with

rigorous imprisonment, which may extend to ten  years,  and  shall  also  be

liable to fine’, whether after finding the accused guilty of  the  aforesaid

offences, the trial court could have imposed sentence only of a fine  or  it

was incumbent on the trial court to impose the sentence of  imprisonment  as

well as fine?

15. The Scheme of Section  53  of  the  Indian  Penal  Code  enumerates  the

punishments. Both  imprisonment  of  either  description  i.e.  rigorous  or

simple and fine are included within  the  punishments.  The  Scheme  of  the

Indian  Penal  Code  indicates  that  for   different   offences   different

punishments have been provided for. Chapter XVI of  the  Indian  Penal  Code

deals with ‘all offences affecting the human body’. The  punishment  for  an

offence of attempt to murder under  Section  307  IPC  as  noted  above,  is

imprisonment and fine. There are several other offences in the same  chapter

where sentence provided is imprisonment or fine or both. Section 309 of  IPC

provides for punishment for an offence to attempt suicide.  Section  309  of

IPC is quoted as below:

“309. Attempt to commit suicide.—Whoever  attempts  to  commit  suicide  and

does any act towards the commission of such offence, shall he punished  with

simple imprisonment for a term which may extend to one year 1[or with  fine,

or with both].”

16.   Prior to amendments made  in  Section  309  by  Act  8  of  1882,  the

punishment provided for Section 309 was ‘simple  imprisonment  for  a  term,

which can be extended to one year or, and shall also be liable to  fine.  By

the above amendments of 1882 the words ‘and shall also be  liable  to  fine’

have been deleted and substituted by the words ‘or with fine or with  both’.

The  legislature  is  thus  well  aware  of  the  distinction  between   the

punishment which provides imprisonment  and  with  fine  and  punishment  by

imprisonment or fine or by  both.  Where  punishment  provided  is  both  by

imprisonment and fine, can Court punish only with fine ?

17.   In the present case, High Court  by  its  judgment  has  punished  the

accused only with fine after affirming the finding of the guilt recorded  by

the trial court.

18. In an early decision  of  Allahabad  High  Court  in  Badri  Prasad  Vs.

Emperor, (1922) ILR 44  All  538,  the  Division  Bench  of  the  Court  had

occasion to consider the punishment in context of Section 392  IPC.  In  the

above case for an offence under Section 392 IPC, the Magistrate inflicted  a

fine of Rs.100/- with an alternative period  of  imprisonment,  and  if  the

fine was not paid with the further sentence of 30 stripes. Appeal was  filed

by Badri Prasad which was admitted upon the question of sentence.  A  notice

was also issued by the High Court why sentence should  not  be  enhanced  or

otherwise altered.

19.   Chief Justice Edward Grimwood Mears in his separate judgment  held  as

follows:

“…….In these circumstances, the Magistrate inflicted a fine of  Rs.  100

with an alternative period of imprisonment, if that fine was not  paid,  and

sentenced Badri Prasad also to thirty stripes.  Badri  Prasad  preferred  an

appeal to this Court and it has been admitted upon the question of  sentence

only-and, at the same time, notice has been served on him to show cause  why

the sentence should not be enhanced or otherwise altered. This was a  charge

under Section 390 and the  penalty  is  prescribed  under  Section  392.  An

examination of that section shows that a  fine  alone  is  not  a  permitted

punishment for  a  robbery.  Robbery,  under  these  circumstances,  may  be

punished by rigorous imprisonment and by a fine, and  in  certain  cases  by

whipping in addition.  But the Magistrate erred in  law  in  sentencing  the

accused to a fine and a fine unaccompanied by imprisonment…….”

“…….Therefore, I defer very gladly to what I have no doubts is  in  this

case Mr. Justice Bannerji’s better judgment on the matter,  I  am  quite  in

accord with him that there must be  a  substantial  period  of  imprisonment

and, therefore, we alter the nature of the  punishment  which  Badri  Prasad

must undergo, and we sentence him to twelve  months’  rigorous  imprisonment

with  effect  from  the  date  of  his  arrest.  We  maintain  the  fine  of

imprisonment with the alternative period of imprisonment  if  that  fine  be

not paid, and we wipe out that part of the  sentence  which  orders  him  to

receive a whipping.”

20.   Justice Pramoda Charan Bannerji, in his separate judgment  stated  the

following:

“I am of opinion that the Court below was wrong in  not  inflicting  on  the

appellant a sentence of imprisonment.  A  sentence  of  imprisonment  is  an

essential sentence under Section 392 of  the  Indian  Penal  Code.  To  this

sentence a fine may be added and, under Section 4 of  the  Whipping  Act,  a

sentence of whipping may be imposed where, in  the  commission  of  robbery,

hurt is caused.  Therefore,  the  sentence  of  fine  only  was  an  illegal

sentence, and a sentence of imprisonment ought to have been imposed.”

21. Judgment in M/s. Rajasthan Pharmaceutical Laboratory, Bangalore and  Two

Others versus State of Karnataka, (1981)     1 SCC 645, is also relevant  to

be referred to. In the  above  case,  the  Court  had  occasion  to  examine

Section 27a(ii) and Section 34(2) of Drugs & Cosmetics  Act,  1940.  Section

27a(ii) also contains punishment “shall be punishable with imprisonment  for

a term, which shall not be less than one year but which may  extend  to  ten

years and shall also be liable to fine”.

22.   In para 5 of the judgment, the above provision has been  extracted  as

below:

“5. Chapter IV of the Act, headed “Manufacture,  Sale  and  Distribution  of

Drugs     and     Cosmetics”     includes     Section 16 to     Section 33A.

Section 18 provides inter alia :

…..no person shall himself or by any other person on his behalf-

(a) manufacture for sale,  or  sell,  or  stock  or  exhibit  for  sale,  or

distribute-

(i) any drug or cosmetic which is not of standard quality;

(b) …….

(c) manufacture for  sale,  or  sell,  or  stock  or  exhibit  for  sale  or

distribute any drug or cosmetic, except under, and in  accordance  with  the

conditions of, a licence issued….

*    *     *    *     *

Section 18-A is in these terms:

Disclosure of the name of the manufacturer, etc.-  Every  person,  not

being the  manufacturer  of  a  drug  or  cosmetic  or  his  agent  for  the

distribution thereof, shall, if so required, disclose to the  Inspector  the

name, address and other particulars of the person from whom he acquired  the

drug or cosmetic.

Section 27 which enumerates the penalties  for  illegal  manufacture,  sale,

etc., of drugs reads-

Whoever himself or by any other person on his behalf manufactures for  sale,

sells, stocks or exhibits for sale or distributes-

(a) any drug-

(i) ………

(ii) without a valid licence as required under clause (c) of Section 18,

shall be punishable with imprisonment for a term which  shall  not  be  less

than one year but which may extend to ten years and shall also be liable  to

fine:

Provided that the Court may, for any special reasons  to  be  recorded

in writing, impose a sentence of imprisonment of less than one year;

(b) any drug other than a drug referred to in clause  (a)  in  contravention

of any of the provisions of this Chapter or any rule made  thereunder  shall

be punishable with imprisonment for a term which may extend to three  years,

or with fine, or with both.

Section 28 provides for “penalty for  non-disclosure  of  the  name  of  the

manufacturer, etc.” and states:

Whoever contravenes the provisions of Section 18-A shall be punishable  with

imprisonment for a term which may extend to one year,  or  with  fine  which

may extend to five hundred rupees, or with both.”

23.   In the above case, High Court has found  the  accused  guilty  for  an

offence under Section 18(c) of the Act for which, they were  punished  under

Section 27(a)(ii). High Court sentenced each of the three appellants to  pay

a fine of Rs.2,000/- on each of the count.

24.   This Court in para 7 had stated as follows:

“7. The High Court imposed a fine of two thousand  rupees  on  each  of  the

three appellants for the offence  under  Section  18(c).  Section  27(a)(ii)

makes a sentence of imprisonment of not less than one  year  compulsory  for

such offence in addition to fine unless for special reasons  a  sentence  of

imprisonment for a lesser period was warranted.”

25.    This Court remitted the case  to  consider  again   on  the  findings

already recorded for the question of  sentence.  In  para  8  following  was

stated: –

“8. In the result, while maintaining the conviction of  the  appellants,  we

remit the case to the High Court; the High Court will consider again on  the

findings already recorded the  question  of  sentence-(a)  for  the  offence

under Section 18(c) punishable under Section 27(a)(ii) so far as  appellants

2 and 3 are concerned, and (b) for the offence punishable under  Section  28

of which all  the  three  appellants  have  been  found  guilty,-  and  pass

appropriate sentences. The appeal is  allowed  to  the  extent  and  in  the

manner indicated above.”

26.   Another  judgment  which  needs  to  be  noted  is  Zunjarrao  Bhikaji

Nagarkar versus Union of India and Others, (1999) 7 SCC 409.

27.   In the above case, this Court had considered Section 325 IPC  and  the

phrase ‘and shall also be liable to fine’. The  Court  held  that  when  the

punishment provided is for sentence of imprisonment and also with fine,  the

imprisonment and fine both are imperative. In para 37,  38  &  39  following

was stated:

“37. Penalty to be imposed has to be in commensurate  with  the  gravity  of

the offence and the extent of the evasion.  In  the  present  case,  penalty

could have  been  justified.  Appellant  was,  however,  of  the  view  that

imposition of penalty was not mandatory. He could have formed such  a  view.

Under Section 325 of the Indian Penal Code, a person found guilty “shall  be

punished with imprisonment of  either  description  for  a  term  which  may

extend to seven years, and shall also be  liable  to  fine”.  Section 63 IPC

provides that where no sum is expressed to which  a  fine  may  extend,  the

amount of fine to which the offender is liable is unlimited, but  shall  not

be excessive. A Single Judge of the  Patna  High  Court  in  Tetar  Gope  v.

Ganauri Gope took the view that expression “shall also liable  to  fine”  in

Section 325 IPC does not mean that a sentence of fine  must  be  imposed  in

every case of conviction in that section. He said:

“Such  an  expression  has  been  used  in  the  Penal  Code  only  in

connection with those offences where the legislature  has  provided  that  a

sentence of imprisonment is compulsory. In  regard  to  such  offences,  the

legislature has left a discretion in the Court to impose also a sentence  of

fine in appropriate cases in addition to the imposition  of  a  sentence  of

imprisonment which alone is obligatory.”

38. We do not think that the view expressed  by  the  Patna  High  Court  is

correct as it would appear from the language of the section  that  sentences

of both imprisonment and fine are imperative.  It  is  the  extent  of  fine

which  has  been  left  to  the  discretion  of  the  court.  In   Rajasthan

Pharmaceuticals Laboratory v. State of Karnataka this Court  has  taken  the

view that imprisonment and fine both  are  imperative  when  the  expression

“shall also be liable to fine” was used under Section 34 of  the  Drugs  and

Cosmetics Act, 1940. In that case, this Court was considering  Section 27 of

the Drugs and Cosmetics  Act,  1940,  which  enumerates  the  penalties  for

illegal manufacture, sale, etc., of drugs and is as under –

“27. Whoever himself or  by  any  other  person  on  his  behalf

manufacture for sale, sells, stocks or exhibits for sale or distributes –

(a) any drug –

(i)          *         *          *

(ii) without a valid licence as required under clause(c) of Section 18,

shall be punishable with imprisonment for a term which  shall  not  be  less

than one year but which may extend to ten years and shall also be liable  to

fine:

Provided that the court may, for any  special  reasons  to  be  recorded  in

writing, impose a sentence of imprisonment of less than one year;

*           *          *”

39. This Court said that the High Court  imposed  a  fine  of  two  thousand

rupees  on  each  of  the   three   appellants   for   the   offence   under

Section 18(c) of  the  Act  when  Section 27(a)(ii) makes  a   sentence   of

imprisonment of not less than  one  year  compulsory  for  such  offence  in

addition to fine unless for special reasons a sentence of  imprisonment  for

a lesser period was warranted. It would thus appear that this Court  was  of

the  opinion  that  in  such  a  case  imprisonment  and  fine,   both   are

imperative.”

*     *    *     *

28.   Thus, the punishment provided in  aforesaid  sections  which  contains

the imprisonment and shall also be liable to fine has to  be  read  to  mean

that offence being proved under Section 307, 329 and 392 IPC the  punishment

of imprisonment and fine are imperative.

29.   As noted above, the Indian Penal Code  contains  a  well  thought  and

carefully considered a regime of punishment.  For  graver  offences,  severe

punishments have been provided, where  it  was  thought  to  provide  lesser

punishment, option of imprisonment or fine has been provided for  as  noted,

in the Scheme of Section 309 of IPC.  The  punishment  provided  in  Section

307, 328 and 392  IPC  are  those  which  have  been  provided  for  serious

offences and it cannot be countenance that the offence  having  been  proved

the punishment can only be a fine.

30.   In case, such  interpretation  is  accepted  those  offenders  in  the

society,  who  are  financially  well-off  can  well  get  away  only   with

punishment of a fine, which shall neither be in the interest of society  nor

in accordance with the scheme of punishment, as delineated in  Indian  Penal

Code.

31.   The trial court has awarded the sentence  of  two  years  imprisonment

with fine of Rs. 2,000/- for each of the aforesaid offences,  which  was  in

accordance with the Statutory Scheme. We are thus of the clear opinion  that

punishment under Section 307, 328  and  392  IPC  cannot  only  be  a  fine,

imprisonment is an imperative part of punishment.

32.   Now, let us examine, as to whether  under  Section  386  of  the  Code

which empowers the Appellate Court to alter the  nature  or  the  extent  or

nature and extent of sentence empowers the  Appellate  Court  to  alter  the

sentence of imprisonment and fine into a sentence of fine  only.  The  power

of the Appellate Court, as contained under Section 386 is  coextensive  with

the power of trial court. In a case, where  trial  court  had  acquitted  an

accused under Section 386(a), the Appellate Court can reverse  an  order  of

acquittal and hold  the  accused  guilty  and  pass  such  sentence  on  him

according to law.

33.   Thus, even when the Appellate Court has been given  power  to  reverse

an acquittal and hold the accused guilty, the power to pass sentence  is  to

be exercised “according  to”  law.  The  word  ‘according  to  law’  clearly

indicates the sentence as provided under the Indian Penal Code.  Thus  power

of Appellate Court to sentence an accused after holding him  guilty  has  to

be in accordance with the punishment as provided under  Indian  Penal  Code.

Thus, while exercising power under Section 386(b) when the  Appellate  Court

has been given power to alter the nature or the extent or nature and  extent

both of the sentence, altering of the sentence has also to be in  accordance

with the Scheme of punishment as contained in the Indian Penal Code.

34.   Appellate Court cannot exercise its power under 386(b)(iii)  to  alter

the sentence of the imprisonment and fine into a sentence of  only  a  fine,

which shall be contrary to the Statutory Scheme. In  event,  such  power  is

conceded to Appellate Authority to alter  a  sentence  of  imprisonment  and

fine with sentence only of a fine,  the  consequences  will  be  unfair  and

unjust.

35.   In a case of murder, it is relevant to note  that  under  Section  302

IPC also, punishment is with death, or  imprisonment  for  life,  and  shall

also be liable to fine. Imprisonment for life, on the above  interpretation,

can also be converted only into fine, which  is  clearly  impermissible  and

not  in  accordance  with  the  Scheme  of  Indian  Penal  Code.  Thus,   no

interpretation can be put to Section 386(b)(iii) except that  the  power  of

the Appellate Court to alter the sentence awarded by trial court has  to  be

in accordance with law  i.e.  sentencing  provisions  as  contained  in  the

Indian Penal Code.

36.   There is one more aspect of  the  matter  which  needs  to  be  noted.

Section 386 Sub clause (b)(i) uses  the  phrase  ‘reverse  the  finding  and

sentence, whereas Sub clause (iii) uses the phrase ‘alter the nature or  the

extent or the nature and the extent of the sentence’. There is a  difference

between the word ‘reverse’ and ‘alter’, both have been  made,  contemplating

different consequences and circumstances.

37.   This Court, in State of Andhra Pradesh versus Thadi Narayana AIR  1962

SC 240 in para 12, while considering the word  reverse  and  alter  used  in

Section 423 akin to Section 386 of the Code, stated as following:

“12.  The word “alter” must in the context be distinguished  from  the  word

“reversed”. Whereas, under S. 423(1)(b)(1)power is  conferred  on  the  High

Court to reverse  the  order  of  conviction  the  power  conferred  on  the

Appellate Court by the expression “alter the finding” is  merely  the  power

to  alter.  Reversal  of  the  order  implies  its   obliteration,   whereas

alteration would imply no more than modification and not its obliteration.”

38.   Setting aside the sentence of punishment, as done by  the  High  Court

in the present case amounts to reversal of  the  sentence  and  cannot  mean

alteration of sentence.

39.   There cannot be any dispute as to the power of the Appellate Court  to

alter the nature and extent of the sentence without  altering  the  finding.

Thus, even in a case when High Court  affirms  the  finding  of  guilt,  the

nature and extent of sentence can very well be altered. The Appellate  Court

taking into consideration the case can alter/reduce the sentence.

40.   In the present case, the High Court has affirmed the  finding  of  the

guilt  but  has  erroneously  set-aside  the  sentence  of  imprisonment  by

providing for fine of Rs. 30,000/- only.

41.   The State in this appeal has challenged the order passed by  the  High

Court modifying the sentence. The  High  Court  has  modified  the  sentence

taking into consideration that appellant lady has to take care of her  three

minor sons, out of them two are mentally retarded. The  trial  court,  while

sentencing  the  accused  had  already  taken  the   aforesaid   fact   into

consideration.   In  para  27  of  the  judgment  trial  court  has  noticed

following:

“27.The convict was heard on the quantum of punishment. She  pleased  for  a

lenient view being the first offender and a young lady of about 40 years  in

age. She also stated that she has three minor sons and out of them  two  are

mentally unsound.”

42.   Trial court, while sentencing  the  appellant  has  thus  taken  above

circumstances into consideration and for offences  under  Section  328,  307

and 392 IPC has awarded imprisonment of two years only with a  fine  of  Rs.

2,000/- each.

43.   The maximum sentence under Section 328 is  ten  years,  under  Section

307 is ten years and in case of  hurt,  it  is  life  imprisonment  or  such

punishment, as mentioned above. In Section 392 IPC, the  maximum  punishment

is for the period of fourteen years.

44.   We are thus of the view that the fact that  accused  has  three  minor

sons, out of them two are mentally retarded, was  taken  into  consideration

by trial court  and  after  considering  the  aforesaid  fact,  sentence  of

imprisonment of only two years was ordered.

45.   In view of the foregoing discussion, we are of the view that order  of

the High Court, modifying the sentence is unsustainable and is  hereby  set-

aside. Judgment and order of the trial court dated 05.03.2003 is restored.

46.   The appeal is allowed. The accused shall be  taken  into  custody  for

serving the sentence.

……………………………………………J

[ASHOK BHUSHAN]

New Delhi

April 10, 2017.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  667   OF 2017

[Arising out of SLP (Crl.) No. 8983 of 2012]

|STATE OF HIMACHAL PRADESH                  |…..APPELLANT(S)            |

|                                           |                             |

|VERSUS                                     |                             |

|NIRMALA DEVI                               |…..RESPONDENT(S)           |

ORDER OF THE COURT

The appeal is allowed.  Judgment of the High Court is set  aside

to the extent it modifies the sentence and the sentence of  imprisonment  as

awarded by the trial court is restored herewith.  The  respondent  shall  be

taken into custody to serve the sentence.

No costs.

………………………………………J.

(A.K. SIKRI)

………………………………………J.

(ASHOK BHUSHAN)

NEW DELHI;

APRIL 10, 2017.

———————–

[1]

[2]   (1999) 7 SCC 409

[3]

[4]   (2014) 6 SCC 466

[5]

[6]   (2015) 7 SCC 359

[7]

[8]   (2013) 9 SCC 516

Advertisements
This entry was posted in Uncategorized. Bookmark the permalink.