# 2 S.C.R. 112 STATE OF HIMACHAL PRADESH v. NJRMALA DEVI

- **Citation:** [2017] 2 S.C.R. 112
- **Court:** Supreme Court of India
- **Decided:** 2017-04-10
- **Case number:** Criminal Appeal No. 667of2017
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-112-state-of-himachal-pradesh-v-njrmala-devi-31803
- **Pages:** 40

## Headnote

Code ofCri111inal Procedure, 1973:
s. 386 - Powers of the appellate court - High Court in exercise
of power uls. 386 altering the extent of sentence - Respondentlady along with co-accused intoxicated the co111plainant, looted
money from hi111, beat him and dumped him in a watercourse - Trial
court convicted the respondent for the offences punishahle ulss.
328, 307, 392134 and awarded imprisonment of two years in respect
of each of the offences which were to run conc11rre111ly - Howeve1;
the High Court set aside the sentence of imprisonment and substituted
by fine of Rs. 30,0001- - Held: In respect of offences u!vs. 307, 328
and 392 there has to be punishment ofi111prisonment, and in addition,
convict is also liable to pay fine - Thus, awarding the punishment
of imprisonment is a must and there cannot be a situation where no
imprisonment is imposed at all -- Acts commilled by re.1pondent
constitute heinous o,ffences, haring common intention along with
co-accused - Tii•o 111itigating circumstances pressed into service by
the respondent that she is a 11·oman and is having three minor children
has to be balanced with the nature of crime irhich the respondent
co111111itted - Trial court took into consi(/eration these circzunstances
and on that basis, took a lenient vie11· - No reason for the High
Court to show any further mercy - Removing the element of
i111prisonment altogether erroneous in law - Thus, the sentencing
part of the judgme/1/ of the High Court is set aside and the judgment
o,f the trial court is restored - Penal Code, I 860
ss. 328, 307,
392134 ·- Sentence/Se11tencing.
s. 386 - Powers of the appellate court while hearing appeals
from the trial court -- Held: If con1•i('tio11 is maintained, appdlate
court has the power to alter the nature or the ntent, or the nature
and extent, of the sentence (though it ca1111ut enhance the sr1111e1
Ho1vever, such 17n11·er is lo be cxerrisell in 1~~11ns <~(th.
···inns
I i7
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
113
for which the accused has been convicted - Power cannot be
A
exercised contrary to law.
Sentence/Sentencing: Award of sentence - Gender of the
offender, if a mitigating factor, while fixing the quantum of sentence -
Held: Depends upon the facts of each case, whether gender should
be treated as a relevant consideration - No hard and fast rule can
B
be laid down.
Principles of sentencing - Stated.
Allowing the appeal, the Conrt
HELD: By the Court: The judgment of the High Court is
C
set aside to the extent it modifies the sentence and the sentence
of imprisonment as awarded by the trial court is restored herewith.
Per Sikri, J.: 1.1 As can be seen from the language of
Sections 307, 328 and 392 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'. There has to be punishment of imprisonment in
respect of these offences, and in addition, the convict is also liable
to pay line. 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. (Para 14) [124-F-H; 125-A-B]
1.2 Section 386 Cr.P.C. enlists the powers of the appellate
court while hearing the appeals from the trial court. In an appeal
from conviction, ifthe 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 power has to be exercised in terms of the
provisions of the Penal Code for which the accused has been
convicted. Power to alter the sentence would not extend to
exercising

## Text

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(2017] 2 S.C.R. 112
STATE OF HIMACHAL PRADESH
v.
NJRMALA DEVI
(Criminal Appeal No. 667of2017)
APRIL 10, 2017
[A. K. SIKRI AND ASHOK BHUSHAN, J.J.]
Code ofCri111inal Procedure, 1973:
s. 386 - Powers of the appellate court - High Court in exercise
of power uls. 386 altering the extent of sentence - Respondentlady along with co-accused intoxicated the co111plainant, looted
money from hi111, beat him and dumped him in a watercourse - Trial
court convicted the respondent for the offences punishahle ulss.
328, 307, 392134 and awarded imprisonment of two years in respect
of each of the offences which were to run conc11rre111ly - Howeve1;
the High Court set aside the sentence of imprisonment and substituted
by fine of Rs. 30,0001- - Held: In respect of offences u!vs. 307, 328
and 392 there has to be punishment ofi111prisonment, and in addition,
convict is also liable to pay fine - Thus, awarding the punishment
of imprisonment is a must and there cannot be a situation where no
imprisonment is imposed at all -- Acts commilled by re.1pondent
constitute heinous o,ffences, haring common intention along with
co-accused - Tii•o 111itigating circumstances pressed into service by
the respondent that she is a 11·oman and is having three minor children
has to be balanced with the nature of crime irhich the respondent
co111111itted - Trial court took into consi(/eration these circzunstances
and on that basis, took a lenient vie11· - No reason for the High
Court to show any further mercy - Removing the element of
i111prisonment altogether erroneous in law - Thus, the sentencing
part of the judgme/1/ of the High Court is set aside and the judgment
o,f the trial court is restored - Penal Code, I 860
ss. 328, 307,
392134 ·- Sentence/Se11tencing.
s. 386 - Powers of the appellate court while hearing appeals
from the trial court -- Held: If con1•i('tio11 is maintained, appdlate
court has the power to alter the nature or the ntent, or the nature
and extent, of the sentence (though it ca1111ut enhance the sr1111e1
Ho1vever, such 17n11·er is lo be cxerrisell in 1~~11ns <~(th.
···inns
I i7
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
113
for which the accused has been convicted - Power cannot be
A
exercised contrary to law.
Sentence/Sentencing: Award of sentence - Gender of the
offender, if a mitigating factor, while fixing the quantum of sentence -
Held: Depends upon the facts of each case, whether gender should
be treated as a relevant consideration - No hard and fast rule can
B
be laid down.
Principles of sentencing - Stated.
Allowing the appeal, the Conrt
HELD: By the Court: The judgment of the High Court is
C
set aside to the extent it modifies the sentence and the sentence
of imprisonment as awarded by the trial court is restored herewith.
Per Sikri, J.: 1.1 As can be seen from the language of
Sections 307, 328 and 392 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'. There has to be punishment of imprisonment in
respect of these offences, and in addition, the convict is also liable
to pay line. 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. (Para 14) [124-F-H; 125-A-B]
1.2 Section 386 Cr.P.C. enlists the powers of the appellate
court while hearing the appeals from the trial court. In an appeal
from conviction, ifthe 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 power has to be exercised in terms of the
provisions of the Penal Code for which the accused has been
convicted. Power to alter the sentence would not extend to
exercising the powers contrary to law. The High Court committed
a legal error in doing away with the sentence of imprisonment
altogether. [Para 15) [125-B-C)
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1.3 The acts committed by the respondent constitute
heinous offences. Having common inteniion along with co- ·
accused, she administered poison like substance to the
complainant; robbed him of his money; and even attempted to
kill him. Award of sentence is imprisonment is a must. [Para 16]
(125-D-E]
1.4 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. [Para 18] (127-H;
128-A-B]
1.5 The following principles of sentencing can be deduced:
(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 amoni: 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 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 deteri:ence theory has to
prevail, while determining the quantum "r ;entence,
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
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. (Para 20) (134-EH; 135-A-D]
1.6 When the Penal Code provides discretion to Indian
Judges while awarding the sentence, the Court will have
undoubtedly regard to extenuating and mitigating circumstances.
As regards the question as to whether the respondent being a
lady and having three minor children will be extenuating reasons,
it is observed 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 iloing
'real justice' consequence.s 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, in certain decisions of this Court,
gender is taken as the relevant circumstance while fixing the
quantum of sentence. 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. [Para 21) (135-E-H;
136-A)
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1. 7 In the instant case, two mitigating circumstances which
are pressed into service by the respondent are that she is a woman
and is having three minor children. This has to be balanced with
the nature of crime which the respondent 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 IPC, which were to be
run concurrently. There was no reason to show any further mercy
by the High Court. Removing the element of imprisonment
altogether was, in any case, erroneous in law. The sentencing
part of the judgment of the High Court is set aside and the
judgment of the trial court is restored. (Para 22) (136-B-D]
Zunjarrao Bhikaji Nagarkar v. Union of India & Ors.
(1999) 7 SCC 409 : [1999] 1 Suppl. SCR 87; Narinder
Singh & Ors. v. State of Punjab & A11r. (2014) 6 SCC
466 : [2014] 4 SCR 1012; Satish Kumar Jayanti Lal
Dabgar v. State of Gujarat (2015) 7 SCC 359 : (2015]
2 SCR 751; Hazara Singh v. Raj Kumar & Ors. (2013)
9 SCC 516 : (2013] 5 SCR 979 - referred to.
Case Law Reference
[1999] 1 Suppl. SCR 87
referred to
Para 14
[2014] 4 SCR 1012
referred to
Para 17
J2015J 2 SCR 751
referred to
Para 18
__ gQ13J 5 SCR 979
referred to
Para 19
Per Ashok Bhushan. J. (Concurring): 1.1 The Scheme of
Section 53 of the 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 Penal
Code indicates that for different offences different punishments
have been provided for. Chapter XVI of the Penal Code deals
with 'all offences affecting the human body'. The punishment for
an offence of attempt to murder under Section 307 IPC is
imprisonment and fine. There are several other offences in the
same chapter where sentence provided is imprisonment or fine
or both. Section 309 ofIPC provides for punishment for an offence
to attempt suicide. [Para 15] (142-E-F]
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
1.2 Prior to amendments made in Section 309 by Act 8 of
1882, tbe 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. The punishment provided in
said 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.[Paras 16, 28] [142-H; 143A; 148-E-F]
1.3 The 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, in the Scheme of Section 309 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. 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 Penal Code.[Paras 29, 30] [148-F-H; 149-A]
1.4 The trial court awarded the sentence of two years
imprisonment with fine of Rs. 2,000/- for each of the said offences,
which was in accordance with the Statutory Scheme. Thus, the
punishment under Section 307, 328 and 392 IPC cannot only be
a fine, imprisonment is an imperative part of punishment.[Para
31] [149-B]
1.5 The power of the appellate court, as contained under
Section 386 is co-extensive 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
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to law. Thus, even when the appellate court has been given power
to reverse an acquittal and hold the
0 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 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 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 te be In
accordance with the Scheme of punishment as contained in the
Penal Code. [Paras 32, 33) (149-C-F]
1.6 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 would be unfair and nnjust.[Para 34)
[149-F-GJ
1. 7 In a case of murder, 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 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 Penal Code. [Para 35) [149-G-H;
150-A-B]
1.8 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
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sentence'. There is a difference between the word 'reverse' and
'alter', both have been made, contemplating different
consequences and circumstances. [Para 36) (150-B-C)
1.9 Setting aside the sentence of punishment, as done by
the High Court in the instant case amounts to reversal of the
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sentence and cannot mean alteration of sentence. There cannot
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
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. [Paras 38, 39] (150-E-G]
1.10 The High Court 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 to two years imprisonment had
already taken the said fact into consideration. The order of the
High Court, modifying the sentence is unsustainable and is setaside. The judgment and order of the trial court is restored (Paras
41, 45]
[150-H; 151-A, E-F]
Badrj Prasad v. Emperor (1922) ILR 44 All 538;
Mis. Rajasthan Pharmaceutical Laboratory, Bangalore
and Two Others v. State of Karnataka (1981) 1 SCC
645: (1981] 2 SCR 604; Zunjarrao Bhikaji Nagarkar
v. Union of India & Ors. (1999) 7 SCC 409 : [1999]
1 Suppl. SCR 87; State of Andhra Pradesh v. Thadi
Narayana AIR 1962 SC 240 : [1962] SCR 904 -
referred to.
Case Law Reference
(1922) ILR 44 All 538
[1981] 2 SCR 604
referred to
referred to
Para 18
Para 21
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(1999] 1 Suppl. SCR 87
referred to
Para 26
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[1962] SCR 904
referred to
Para 37
CRIMIN AL APPELLATE JURISDICTION :Criminal Appeal No.
667 of2017.
From the Judgment and Order dated 03.07.2012 of the High Court
ofHimachal Pradesh at Shimla in Criminal Appeal No. 79 of2003.
G
Ms. Promila, Adv., for the appellant.
K. K. Mani (A.C.), Adv. for the respondent.
The following Judgments and Order of the Court were delivered
A. K. SIKRI, J. 1. Leave granted.
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2. K.espondent herein faced trial for offence covered by Sections
328, 392, 397 read with Section 34 of the Indian Penal Code (!PC)
alongwith co-accused Krishan Lal Sharma. When the trial was underway,
both the accused persons were released on bai I, 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
19"' April, 2002. Later on, the respondent was apprehended and brought
to trial and testimony ofremaining prosecution witnesses were recorded
in her case. It culminated in the judgment dated 27'" February, 2003
whereby the Sessions Judge convicted the respondent also for the
offences punishable under Sections 328, 307, 392 read with Section 34,
!PC. As a consequence, order of sentence was passed on 5'" 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 !PC 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 againstthejudgment dated 5"'
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 simplicitorofRs. 30,000/-.
Concluding paragraph of the impugned judgment giving reasons fortaking
this course of action is reproduced below:
"! have given careful consideration to the submission made by
the learned counsel appearing for the appellant, who sl1bmits
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
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
fA. K. SlKRl, J.l
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 leamed 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.
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 22"' 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 oftime, 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
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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 of24'" 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.
5. 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 !PC. 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 administ~red 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 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 tenn 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
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
[A. K. SJKRI, J.]
imprisonment for a term which may extend to ten years; and
shall also be liable to fine; and, ifthe robbery be committed on
the highway between sunset and sunrise, the imprisonment may
be extended to fourteen years.
S. 307 : A'ttempt 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.]
I 0. 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 I 0 years
as well as fine. Likewise, the punishment stipulated in Section 392 !PC
is 'rigorous imprisonment' for a term which may extend to I 0 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 ail these Sections are of
serious nature.
(b) Maximum penalty, under normal circumstances, is I 0 years
which under certain circumstances can even be life
imprisonment (Section 307 IPC) or 14 years (under Section
392 !PC)
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(c) Whereas imprisonment under Sections 307 !PC and 328
!PC 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 !PC is concerned there is
no such discretion and the imprisonment has to be rigorous
in nature.
12. In the instant case, as noticed above, trial court a\varded
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 I ligh 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 !PC, 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 Z1111iarrao Bltikaji
Nagarkar v. Union of l11tlia & Ors.' and the Court explained that in
such circumstances, it is imperative to impose both the sentences i.e.
imprisonment as well as fine. Tims, 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
1 \t999J1sec409
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STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
[A. K. SIKRI, J .]
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, ifthe 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.
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
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17. In Zunjarrao B/1ikaji 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 Sing fl & Ors. v. State of
Punjab & Am:'. 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
1 (2014)6 sec 466
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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
sentenci1lg 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.
STATE OF HlMACHAL PRADESH v. NlRMALA DEVI
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[A. K. SIKRI, J.]
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 oflaw 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. Ifin a particular case the court
is of the opinion that the settlement between the parties would
lead to more' "'nd; 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
pai1icular case."
18. The offences for which the respondent is convicted prescribe
maximum imprisonment and there is no provision for minimum
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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 Sa ti sh Kumar Jaya11ti Lal Dab gar v. State of Gujarat'
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
Daymm/a and Sons (P) ltd. v. Invest Import [( 1981) I 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
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STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
[A. K. SIKRI, J.]
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 : ( 1558-1 774)
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 011 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. 3 11, para 6)
"6 .... According to Black's Lall' 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
ofright.