LexSTATE OF HIMACHAL PRADESH versus NIRMALA DEVI
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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 - Respondent-
lady 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
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STATE OF HIMACHAL PRADESH v. NIRMALA DEVI
113
for which the accused has been convicted - Power cannot be
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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
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be laid down.
Principles of sentencing - Stated.
Allowing the appeal, the Conrt
HELD: By the Court: The judgment of the High Court is
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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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SUPREME COURT REPORTS
(2017) 2 S.C.R.
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