State Of H.P vs Nirmala Devi

Respondent herein faced trial for offence covered by Sections 328, 392, 397 read with Section 34 of the Indian Penal Code (IPC) alongwith co-accused Krishan Lal Sharma. When the trial was underway, both the accused persons were released on bail, 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 19th April, 2002. Later on, the respondent was apprehended and brought to trial 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, IPC. 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 IPC with direction that all the substantive sentences were to run concurrently.

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.

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 substituting the same with fine simplicitor of Rs. 30,000/-. Concluding paragraph of the impugned judgment giving reasons for taking this course of action is reproduced below:

society does not withstand it; and sanctity of conscience abhors it. The old saying ‘the law can hunt one's past’ cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the respondent is sentenced to undergo rigorous imprisonment for two years apart from the fine that has been imposed by the learned trial Judge.” Likewise, stressing upon the principle of proportionality in sentencing in the case of Hazara Singh v. Raj Kumar & Ors.[4], this Court stressed that special reasons must be assigned for taking lenient view and undue sympathy for accused is not justified. It was equally important to keep in mind rights of victim as well as society at large and 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:

Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes-

34. 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.

38. 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.

40. 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.

42. Trial court, while sentencing the appellant has thus taken above circumstances into consideration and for offences under Section 328, 307 and 392 IPC has awarded imprisonment of two years only with a fine of Rs. 2,000/- each.

44. 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 court and after considering the aforesaid fact, sentence of imprisonment of only two years was ordered.

45. In view of the foregoing discussion, we are of the view that order of the High Court, modifying the sentence is unsustainable and is hereby set- aside. Judgment and order of the trial court dated 05.03.2003 is restored.

46. The appeal is allowed. The accused shall be taken into custody for serving the sentence.

……………………………………………J [ASHOK BHUSHAN] New Delhi April 10, 2017.

The appeal is allowed. Judgment of the High Court is set aside to the extent it modifies the sentence and the sentence of imprisonment as awarded by the trial court is restored herewith. The respondent shall be taken into custody to serve the sentence.

No costs.

APRIL 10, 2017.