9911796707
TMI Blog2017 (4) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... itnesses were recorded in her case. It culminated in the judgment dated 27th February, 2003 whereby the Sessions Judge convicted the Respondent also for the offences punishable Under Sections 328, 307, 392 read with Section 34, Indian Penal Code. As a consequence, order of sentence was passed on 5th March, 2003. She was inflicted with the punishments of simple imprisonment for a period of two years and fine in the sum of Rs. 2,000/-, in default of payment of which to undergo imprisonment for a further period of three months, for the offence each punishable Under Sections 328, 307 and 392 Indian Penal Code 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 5th March, 2003 passed by the Sessions Judge in the High Court. The High Court has affirmed the conviction. However, insofar as award of sentence is concerned, it is drastically modified by removing imprisonment part of the sentence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank Satbari for the purposes of purchasing an auto-tempo which he wanted to use for transporting children studying in his school. On way to the bank, he met Krishan Lal accused, who was driving Maruti Van No. JK-02M-4392, an old acquaintance of the complainant. He asked the complainant as to where he was going whereupon he disclosed that he was going to withdraw a sum of Rs. 27,000/- for purchasing an auto-tempo from Pathankot. At that point of time, the complainant had a sum of Rs. 4,000/- in his pocket. Accused Krishan Lal told him that he would get him a discount from an authorized auto-tempo dealer at Pathankot and that he was willing to drive him to that place. Both went to the bank where the complainant withdrew a sum of Rs. 27,000/-. Thereafter, Accused Krishan Lal took him to his house where he was offered a cup of tea. Then, Krishan Lal took him to the house of one lady (Respondent herein). He informed the complainant that this lady would also go to Pathankot and they would go there together. The Accused offered a glass of water and thereafter a cup of tea after which the complainant, Ramesh Kumar, suspected that he had been made to ingest some intoxicant. They boarded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Indian Penal Code is 10 years as well as fine. Likewise, the punishment stipulated in Section 392 Indian Penal Code is 'rigorous imprisonment' for a term which may extend to 10 years, as well as fine. In case of highway robbery between sunset and sunrise, imprisonment can be extended even to 14 years, though that is not the case here. Insofar as Section 307 Indian Penal Code 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, such a power has to be exercised in terms of the provisions of Indian Penal Code etc. for which the Accused has been convicted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 Gujarat (2015) 7 SCC 359 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 (Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27 Corpus Juris Secundum, p. 289.) When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the Rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him.' Thus, the Judges are to constantly remind themselves that the use of discretion has to be guided by law, and what is fair under the obtaining circumstances. 36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Penal Code and for the same the trial court sentenced the Accused for 10 years. However, the High Court, in its appellate jurisdiction, reduced the sentence to the period already undergone. In that case, this Court held that the sentence imposed is not proportionate to the offence committed, hence not sustainable in the eye of the law. This Court observed thus: (SCC pp. 361-62, paras 7-8) 7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect 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 offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances 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 justificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 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 Indian Penal Code, which were to be run concurrently. There was no reason to show any further mercy by the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as found that the Accused No. 1 and Respondent-Accused had conspired to rob the complainant of his money. The Respondent-Accused mixed some tablet in the tea offered to the complainant because of which the complainant became unconscious. In the van, the complainant was strangulated with a green dupatta of Respondent-Accused. In the investigation, it was found out that both Accused No. 1 and Respondent-Accused after ensuring that the complainant had died, threw him down the road in a nullah near village Dhundiara. Thereafter, both went to Dalhousie and stayed at Kumar Hotel for night. The complainant was found lying in nullah by one Shri Tej Ram who had gone to his field to check the crops. The complainant was brought out from nullah by Tej Ram with the help of another person and then taken to private clinic. On getting the first aid, the complainant was taken to Civil Hospital in Dalhousie where the statement was made. f. On 19.04.2002, Accused No. 1 was convicted and sentenced for offences punishable Under Section 328, 392, 397 Indian Penal Code vide judgment dated 19.4.2002. During the trial of the Respondent-accused, she was declared proclaimed offender. Upon being apprehended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Court is not in accordance with the power given Under Section 386 of the Code of Criminal Procedure 1973 (hereinafter referred to as "the Code"). High Court while exercising the power Under Section 386(b) of the Code could have reduced the sentence, but while maintaining the finding of the guilt could not have set-aside the sentence of imprisonment. 29. Learned Counsel for the Respondent-accused submitted that High Court has rightly enhanced the fine by setting-aside the sentence of imprisonment in view of the facts & circumstances of the case. The Respondent-accused being a lady, who had to look after three minor sons, out of them two being mentally unsound, sentence of imprisonment has rightly been set-aside. The judgment and order of the High Court being just and equitable, this Court need not interfere with the alteration of sentence ordered by the High Court. 30. We have considered the submissions of the learned Counsel for the parties and have perused the record carefully. The only issue, which arises in this appeal for determination is, as to whether, the High Court in exercise of its appellate jurisdiction Under Section 386 of the Code could have set-aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusal 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. 33. High Court thus has not reversed the finding of the guilt and without altering the finding of the guilt recorded by trial court, has altered the sentence. In altering the sentence High Court has exercised its power Under Section 386(b)(iii) of the Code. What is the meaning and content of 'Statutory Scheme' as delineated by the words 'alter the nature or the extent of the sentence, but not so as to enhance the same' has to be considered and answered in this appeal. Whether in altering the sentence, the High Court is empowered to alter the sentence to an extent which could not have been awarded by the trial court after recording t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial court to impose the sentence of imprisonment as well as fine? 37. The Scheme of Section 53 of the Indian Penal Code enumerates the punishments. Both imprisonment of either description i.e. rigorous or simple and fine are included within the punishments. The Scheme of the Indian Penal Code indicates that for different offences different punishments have been provided for. Chapter XVI of the Indian Penal Code deals with 'all offences affecting the human body'. The punishment for an offence of attempt to murder Under Section 307 Indian Penal Code 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 Indian Penal Code provides for punishment for an offence to attempt suicide. Section 309 of Indian Penal Code 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 be punished with simple imprisonment for a term which may extend to one year [or with fine, or with both]. 38. Prior to amendments made in Section 309 by Act 8 of 1882, the punishment provided for Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i'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. 42. 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. 43. Judgment in M/s. Rajasthan Pharmaceutical Laboratory, Bangalore and Two Others v. State of Karnataka (198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 18-A shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to five hundred rupees, or with both. 45. 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. 46. 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. 47. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Karnataka this Court has taken the view that imprisonment and fine both are imperative when the expression "shall also be liable to fine" was used Under Section 34 of the Drugs and Cosmetics Act, 1940. In that case, this Court was considering Section 27 of the Drugs and Cosmetics Act, 1940, which enumerates the penalties for illegal manufacture, sale, etc., of drugs and is as under- 27. Whoever himself or by any other person on his behalf manufacture for sale, sells, stocks or exhibits for sale or distributes - (a) any drug - (i) * * * (ii) without a valid licence as required under clause(c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years and shall also be liable to fine: Provided that the court may, for any special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year; * * * 39. This Court said that the High Court imposed a fine of two thousand rupees on each of the three Appellants for the offence Under Section 18(c) of the Act when Section 27(a)(ii) makes a sentence of imprisonment of not less than one year compulsory for such off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 56. 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. 57. In a case of murder, it is relevant to note that Under Section 302 Indian Penal Code also, punishment is with death, or imprisonment for life, and shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration that Appellant lady has to take care of her three minor sons, out of them two are mentally retarded. The trial court, while sentencing the Accused had already taken the aforesaid fact into consideration. In para 27 of the judgment trial court has noticed following: 27. The convict was heard on the quantum of punishment. She pleased for a lenient view being the first offender and a young lady of about 40 years in age. She also stated that she has three minor sons and out of them two are mentally unsound. 64. Trial court, while sentencing the Appellant has thus taken above circumstances into consideration and for offences Under Section 328, 307 and 392 Indian Penal Code has awarded imprisonment of two years only with a fine of Rs. 2,000/- each. 65. 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 Indian Penal Code, the maximum punishment is for the period of fourteen years. 66. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
