TaxTMI 
TaxTMI 
2017 (4) TMI 1524
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....ial and testimony of remaining prosecution witnesses 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....
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....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 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....
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....le 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 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 c....
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....lso be liable to fine'. This expression came up for consideration in Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. (1999) 7 SCC 409 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 enhanc....
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.... 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....
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....ld 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. 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: ....
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....itled 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 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....
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....d 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 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) ....
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.... 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 th....
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....n 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 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 pr....
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....nds 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 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 crim....
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....inant became unconscious and did not remember as to where he was taken. d. On 24.8.2000, the complainant made a statement to the Inspector/SHO Kishan Chand, P.S. Dalhousie, District Chamba at Civil Hospital, Dalhousie which was recorded Under Section 154 Code of Criminal Procedure 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 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 wi....
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.... Chamba to comply with this judgment. 28. 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 setting-aside 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 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-a....
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.... 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 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. 32. 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. 33. High Court thus has not reversed the finding of the guilt and with....
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....nt may be extended to fourteen years. 35. 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. 36. 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? 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 ....
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....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....... ....... 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. 42. Justice Pramoda Charan Bannerji, in his s....
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....id 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; (b) any drug other than a drug referred to in Clause (a) in contravention of any of the provisions of this Chapter or any Rule made thereunder shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. Section 28 provides for "penalty for non-disclosure of the name of the manufacturer, etc." and states: Whoever contravenes the provisions of Section 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 ....
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....ode does not mean that a sentence of fine must be imposed in every case of conviction in that section. He said: Such an expression has been used in the Penal Code only in connection with those offences where the legislature has provided that a sentence of imprisonment is compulsory. In regard to such offences, the legislature has left a discretion in the Court to impose also a sentence of fine in appropriate cases in addition to the imposition of a sentence of imprisonment which alone is obligatory. 38. We do not think that the view expressed by the Patna High Court is correct as it would appear from the language of the Section that sentences of both imprisonment and fine are imperative. It is the extent of fine which has been left to the discretion of the court. In Rajasthan Pharmaceuticals Laboratory 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, et....
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....which was in accordance with the Statutory Scheme. We are thus of the clear opinion that punishment Under Section 307, 328 and 392 Indian Penal Code cannot only be a fine, imprisonment is an imperative part of punishment. 54. 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 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. 55. 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....
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.... than modification and not its obliteration. 60. Setting aside the sentence of punishment, as done by the High Court in the present case amounts to reversal of the sentence and cannot mean alteration of sentence. 61. There cannot 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. 62. In the present case, the High Court has affirmed the finding of the guilt but has erroneously set-aside the sentence of imprisonment by providing for fine of Rs. 30,000/- only. 63. The State in this appeal has challenged the order passed by the High Court modifying the sentence. The High Court has 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 had already taken the aforesaid fact into consideration. In para 27 of the judgment trial court has noticed followin....