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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.

2. 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

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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 27 th 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 5 th 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.

3. 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.

 4. The respondent filed an appeal against the judgment dated 5 th 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

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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.”    

5. 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.   

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6. 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

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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 24 th 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.

7. 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.  

8. 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.

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

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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.]

10. 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

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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.   

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

discernible from the reading of these provisions:

(a)The  offences  mentioned  under  all  these  Sections  are  of  serious

nature. (b)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) (c)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

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no such discretion and the imprisonment has to be rigorous in nature.

12. 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.

13. In  this  context  and  factual  background,  two  points  arise  for

consideration, viz.:

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

punishment of imprisonment altogether and substitutes the same

with fine alone? (ii) Whether the circumstances pleaded by the respondent were so

mitigating that punishment of fine alone could be justified?

14. 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

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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.

15. 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,

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  (1999) 7 SCC 409

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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.   

16. 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?  

17. 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: 2

  (2014) 6 SCC 466

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“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

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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.”

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18. 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 Gujarat3 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

3    (2015) 7 SCC 359

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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

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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

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undergo rigorous imprisonment for two years apart from the fine that has been imposed by the learned trial Judge.”

19. 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

4    (2013) 9 SCC 516

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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

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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

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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

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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.”

20. Following principles can be deduced from the reading of the aforesaid

judgment:

(i)  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.

(ii) 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.

(iii) Notwithstanding the above theories of punishment, when it comes

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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.

(iv) 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.

(v) 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.   

21. 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

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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.   

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

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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.

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24

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 respondent­accused  had

been decided, setting­aside the sentence of the imprisonment

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

Page 25

25 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 auto­tempo 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 ­02M­4392.  

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

his neighbour  Smt.  Nirmala  Devi (respondent­accused).  The

Accused No. 1 informed the complainant that since the

Respondent­Accused  also had to  go  to  Pathankot, therefore,

they all would go together. In the house of the

Respondent­Accused, 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

Page 26

26 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 Respondent­Accused had conspired to rob the

complainant of his money.  The Respondent­Accused 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

Respondent­Accused. In  the  investigation,  it  was  found  out

that both Accused No. 1 and Respondent­Accused 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

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27 for offences punishable under Section 328, 392, 397 IPC vide

judgment dated 19.4.2002. During the trial of the

Respondent­accused, she was declared proclaimed offender. Upon

being apprehended, the remaining prosecution witnesses were

recorded.  

4. The learned Sessions Judge convicted the

respondent­accused 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:

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28 "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 setting­aside 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 set­aside the sentence

of imprisonment.

7. Learned counsel for the respondent­accused submitted that

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29 High Court has rightly enhanced the fine by setting­aside the

sentence of imprisonment in view of the facts & circumstances

of the case. The respondent­accused being a lady, who had to

look after three minor sons, out of them two being mentally

unsound, sentence of imprisonment has rightly been set­aside.

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

set­aside 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,

Page 30

30 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 re­tried 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

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31 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

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32 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

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33 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

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34 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.

Page 35

35 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 only­and, 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.......”

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36

“.......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)

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39 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

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43 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 well­off 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

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44 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.

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45

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:

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47 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

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48 that order of the High Court, modifying the sentence is

unsustainable and is hereby set­aside. 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.

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49

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.