2017 Supreme(SC) 331

SUPREME COURT OF INDIA
A.K. Sikri, Ashok Bhushan, JJ.
State of Himachal Pradesh – Appellants
Versus
Nirmala Devi – Respondents
Criminal Appeal No. of 2017 (Arising out of SLP (Crl.) No. 8983 of 2012)
Decided On : 10-04-2017

IMPORTANT POINT
Power to alter sentence would not extend to exercising powers contrary to law.

Headnote:(A) Indian Penal Code, 1860 – Sections 328, 307 and 392 – Criminal Procedure Code, 1973 – Section 386 – Administration of poison, robbery and attempt to murder – Prosecution succeeded in proving beyond reasonable doubt that respondent in furtherance of common intention with her co-accused had administered stupefying intoxicating substance to complainant with intent to commission of theft of currency notes of complainant and in the process attempted to kill complainant as well – Offences are serious in nature – It is imperative to impose both sentences i.e. imprisonment as well as fine – There has to be punishment of imprisonment in respect of these offences and in addition, convict is also liable to pay fine – Awarding punishment of imprisonment is a must and there cannot be a situation where no imprisonment is imposed at all – High Court was clearly wrong in not inflicting a sentence of imprisonment by modifying sentence awarded by trial court and obliterating sentence of imprisonment altogether – Very approach of High Court in substituting sentence by fine alone is impermissible in law – Power to alter sentence would not extend to exercising powers contrary to law – High Court committed a legal error in doing away with sentence of imprisonment altogether – Judgment passed by Trial Court restored. (Paras 14, 15 and 22)

       (B) Criminal Law – Just Sentence – There is a wide discretion given to Court to impose any imprisonment which may be from one day (or even till rising of the court) to ten years/life – However, judicial discretion which has been conferred upon Court, has to be exercised in a fair manner keeping in view well established judicial principles which have been laid down from time to time, prime consideration being reason and fair play – Special reasons must be assigned for taking lenient view and undue sympathy for accused is not justified – Imprisonment is one of methods used to handle 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 – Concept of punishing criminals by imprisonment has recently been changed to treatment and rehabilitation with a view to modify criminal tendency among them. (Paras 18, 19 and 20)

       (C) Criminal Law – Sentence – Parity – Gender is not a mitigating factor – 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 criminal world; they are emulating them in all crimes; and even surpassing men at times – Concept of criminal justice is not necessarily synonymous with social justice – Where a woman has committed a crime being a part of a terrorist group, mercy or compassion may not be shown. (Para 21)

       Per Ashok Bhushan, J. (Assenting View)

       (A) Indian Penal Code, 1860 – Sections 328, 307 and 392 – Criminal Procedure Code, 1973 – Section 386 – Administration of poison, robbery and attempt to murder – Sentence – Indian Penal Code contains a well thought and carefully considered a regime of punishment – For graver offences, severe punishments have been provided where it was thought to provide lesser punishment, option of imprisonment or fine has been provided for in Scheme of Section 309 of IPC – Punishment provided in Sections 307, 328 and 392 IPC are those which have been provided for serious offences and it cannot be countenance that offence having been proved punishment can only be a fine – Punishment under Sections 307, 328 and 392 IPC cannot only be a fine, imprisonment is an imperative part of punishment – Appellate Court cannot exercise its power under Section 386(b)(iii) to alter sentence of imprisonment and fine into a sentence of only a fine which shall be contrary to 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, consequences will be unfair and unjust. (Paras 50, 52 and 55)

       (B) Criminal Procedure Code, 1973 – Section 386 – Powers of Appellate Court – There is a difference between word ‘reverse’ and ‘alter’ both have been made contemplating different consequences and circumstances – Setting aside sentence of punishment amounts to reversal of sentence and cannot mean alteration of sentence. (Paras 57 and 59)

       Facts of Case:

       Dacoity and murder. Respondent has not challenged order against that part of judgment whereby her conviction has been upheld by High Court. To that extent, judgment of High Court has attained finality. On the contrary, it is State which has filed the Special Leave Petition under Article 136 of the Constitution out of which present appeal arises, questioning validity, propriety and justification of impugned order whereby sentence of imprisonment is set aside and substituted by fine of Rs. 30,000/-.

       Findings of Court:

       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 Scheme of Indian Penal Code. Thus, no interpretation can be put to Section 386(b)(iii) except that power of Appellate Court to alter sentence awarded by trial court has to be in accordance with law i.e. sentencing provisions as contained in Indian Penal Code.

       Result : Appeal allowed.