STATE OF HIMACHAL PRADESH versus NIRMALA DEVI
[2017] 2 S.C.R. 112, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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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 
I i7
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
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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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1.3 The acts committed by the respondent constitute 
heinous offences. Having common inteniion along with co- · 
accused, she administered poison like substance to the 
complainant; robbed him of his money; and even attempted to 
kill him. Award of sentence is imprisonment is a must. [Para 16] 
(125-D-E] 
1.4 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. [Para 18] (127-H; 
128-A-B] 
1.5 The following principles of sentencing can be deduced: 
(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 amoni: them. 
(ii) There are many philosophies behind such sentencing 
justifying these penal consequences. The philosophical/
jurisprudential justification can be retribution, 
incapacitation, specific deterrence, general deterrence, 
rehabilitation, or restoration. Any of the above or a 
combination thereof can be the goal of sentencing. 
(iii) Notwithstanding the above theories of punishment, 
when it comes to sentencing a person for committing a 
heinous crime, the deterrence theory as a rationale for 
punishing the offender becomes more relevant. In such 
cases, the role of mercy, forgiveness and compassion 
becomes secondary. 
(iv) In such cases where the deteri:ence theory has to 
prevail, while determining the quantum "r ;entence,
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
discretion lies with the Court. While exercising such a 
discretion, the Court has to govern itself by reason and 
fair play, and discretion is not to be exercised according 
to whim and caprice. 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 response to the collective conscience. 
(v) While considering as to what would be the appropriate 
quantum of imprisonment, the Court is empowered to 
take into consideration mitigating circumstances, as 
well as aggravating circumstances. (Para 20) (134-E-
H; 135-A-D] 
1.6 When the Penal Code provides discretion to Indian 
Judges while awarding the sentence, the Court will have 
undoubtedly regard to extenuating and mitigating circumstances. 
As regards the question as to whether the respondent being a 
lady and having three minor children will be extenuating reasons, 
it is observed that in many countries of the world, gender is not a 
mitigating factor. Some jurists also stress that 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 the criminal world; they are emulating them in 
all the crimes; and even surpassing men at times. Therefore, 
concept of criminal justice is not necessarily synonymous with 
social justice. Eugene Mc Laughlin shows a middle path. She 
finds 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 iloing 
'real justice' consequence.s 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, in certain decisions of this Court, 
gender is taken as the relevant circumstance while fixing the 
quantum of sentence. 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. [Para 21) (135-E-H; 
136-A) 
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1. 7 In the instant case, two mitigating circumstances which 
are pressed into service by the respondent are that she is a woman 
and is having three minor children. This has to be balanced with 
the nature of crime which the respondent 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 IPC, which were to be 
run concurrently. There was no reason to show any further mercy 
by the High Court. Removing the element of imprisonment 
altogether was, in any case, erroneous in law. The sentencing 
part of the judgment of the High Court is set aside and the 
judgment of the trial court is restored. (Para 22) (136-B-D] 
Zunjarrao Bhikaji Nagarkar v. Union of India & Ors. 
(1999) 7 SCC 409 : [1999] 1 Suppl. SCR 87; Narinder 
Singh & Ors. v. State of Punjab & A11r. (2014) 6 SCC 
466 : [2014] 4 SCR 1012; Satish Kumar Jayanti Lal 
Dabgar v. State of Gujarat (2015) 7 SCC 359 : (2015] 
2 SCR 751; Hazara Singh v. Raj Kumar & Ors. (2013) 
9 SCC 516 : (2013] 5 SCR 979 - referred to. 
Case Law Reference 
[1999] 1 Suppl. SCR 87 
referred to 
Para 14 
[2014] 4 SCR 1012 
referred to 
Para 17 
J2015J 2 SCR 751 
referred to 
Para 18 
__ gQ13J 5 SCR 979 
referred to 
Para 19 
Per Ashok Bhushan. J. (Concurring): 1.1 The Scheme
of 
Section 53 of the 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 Penal 
Code indicates that for different offences different punishments 
have been provided for. Chapter XVI of the Penal Code deals 
with 'all offences affecting the human body'. The punishment for 
an offence of attempt to murder under Section 307 IPC is 
imprisonment and fine. There are several other offences in the 
same chapter where sentence provided is imprisonment or fine 
or both. Section 309 ofIPC provides for punishment for an offence 
to attempt suicide. [Para 15] (142-E-F]
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
1.2 Prior to amendments made in Section 309 by Act 8 of 
1882, tbe punishment provided for Section 309 was 'simple 
imprisonment for a term, which can be extended to one year or, 
and shall also be liable to fine. By the above amendments of 1882 
the words 'and shall also be liable to fine' have been deleted and 
substituted by the words 'or with fine or with both', The legislature 
is thus, well aware of the distinction between the punishment 
which provides imprisonment and with fine and punishment by 
imprisonment or fine or by both. The punishment provided in 
said sections which contains the imprisonment and shall also be 
liable to fine has to be read to mean that offence being proved 
under Section 307, 329 and 392 IPC the punishment of 
imprisonment and fine are imperative.[Paras 16, 28] [142-H; 143-
A; 148-E-F] 
1.3 The 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 the Scheme of Section 309 IPC. The punishment 
provided in Section 307, 328 and 392 IPC are those which have 
been provided for serious offences and it cannot be countenance 
that the offence having been proved the punishment can only be 
a fine. In case, such interpretation is accepted those offenders in 
the society, who are financially well-off can well
get away only 
with punishment of a fine, which shall neither be in the interest of 
society nor in accordance with the scheme of punishment, as 
delineated in Penal Code.[Paras 29, 30] [148-F-H; 149-A] 
1.4 The trial court awarded the sentence of two years 
imprisonment with fine of Rs. 2,000/- for each of the said offences, 
which was in accordance with the Statutory Scheme. Thus, the 
punishment under Section 307, 328 and 392 IPC cannot only be 
a fine, imprisonment is an imperative part of punishment.[Para 
31] [149-B] 
1.5 The power of the appellate court, as contained under 
Section 386 is co-extensive 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 
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to law. Thus, even when the appellate court has been given power 
to reverse an acquittal and hold the
0 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 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 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 te be In 
accordance with the Scheme of punishment as contained in the 
Penal Code. [Paras 32, 33) (149-C-F] 
1.6 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 would be unfair and nnjust.[Para 34) 
[149-F-GJ 
1. 7 In a case of murder, 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 the Scheme of Penal Code. Thus, no 
interpretation can be put to Section 386(b)(iii) except that the 
power of the appellate court to alter the sentence awarded by 
trial court has to be in accordance with law i.e. sentencing 
provisions as contained in the Penal Code. [Para 35) [149-G-H; 
150-A-B] 
1.8 Section 386 Sub clause (b)(i) uses the phrase 'reverse 
the finding and sentence, whereas Sub clause (iii) uses the phrase 
'alter the nature or the extent or the nature and the extent of the 
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sentence'. There is a difference between the word 'reverse' and 
'alter', both have been made, contemplating different 
consequences and circumstances. [Para 36) (150-B-C) 
1.9 Setting aside the sentence of punishment, as done by 
the High Court in the instant case amounts to reversal of the 
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sentence and cannot mean alteration of sentence. There cannot
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
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. [Paras 38, 39] (150-E-G] 
1.10 The High Court 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 to two years imprisonment had 
already taken the said fact into consideration. The order of the 
High Court, modifying the sentence is unsustainable and is set-
aside. The judgment and order of the trial court is restored (Paras 
41, 45] 
[150-H; 151-A, E-F] 
Badrj Prasad v. Emperor (1922) ILR 44 All 538; 
Mis. Rajasthan Pharmaceutical Laboratory, Bangalore 
and Two Others v. State of Karnataka (1981) 1 SCC 
645: (1981] 2 SCR 604; Zunjarrao Bhikaji Nagarkar 
v. Union of India & Ors. (1999) 7 SCC 409 : [1999] 
1 Suppl. SCR 87; State of Andhra Pradesh v. Thadi 
Narayana AIR 1962 SC 240 : [1962] SCR 904 -
referred to. 
Case Law Reference 
(1922) ILR 44 All 538 
[1981] 2 SCR 604 
referred to 
referred to 
Para 18 
Para 21 
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(1999] 1 Suppl. SCR 87 
referred to 
Para 26 
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[1962] SCR 904 
referred to 
Para 37 
CRIMIN AL APPELLATE
JURISDICTION :Criminal Appeal No. 
667 of2017. 
From the Judgment and Order dated 03.07.2012 of the High Court 
ofHimachal Pradesh at Shimla in Criminal Appeal No. 79 of2003. 
G 
Ms. Promila, Adv., for the appellant. 
K. K. Mani (A.C.), Adv. for the respondent. 
The following Judgments and Order of the Court were delivered 
A. K. SIKRI, J. 1. Leave granted. 
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2. K.espondent herein faced trial for offence covered by Sections 
328, 392, 397 read with Section 34 of the Indian Penal Code (!PC) 
alongwith co-accused Krishan Lal Sharma. When the trial was underway, 
both the accused persons were released on bai I, 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 
19"' April, 2002. Later on, the respondent was apprehended and brought 
to trial and testimony ofremaining prosecution witnesses were recorded 
in her case. It culminated in the judgment dated 27'" February, 2003 
whereby the Sessions Judge convicted the respondent also for the 
offences punishable under Sections 328, 307, 392 read with Section 34, 
!PC. As a consequence, order of sentence was passed on 5'" 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 !PC 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 againstthejudgment dated 5"' 
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 simplicitorofRs. 30,000/-. 
Concluding paragraph of the impugned judgment giving reasons fortaking 
this course of action is reproduced below: 
"! have given careful consideration to the submission made by 
the learned counsel appearing for the appellant, who sl1bmits 
that the appellant is a lady and looking after her three minor sons 
out of them two are mentally unsound and in these circumstances, 
the Court should take a lenient view. This fact was also urged 
before the learned trial court which has taken a lenient view of
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
fA. K. SlKRl, J.l 
the case. What I find further is that the appellant has also 
absconded during the trial and cannot be considered to be. such 
an innocent person. However, on the conspectus of the material 
on record, it would be in the fitness of things in the case. the 
sentence of imprisonment under each head is set aside and instead 
a fine of Rs. 30,0/- is imposed upon the appellant with a direction 
that the amount be deposited in the Court of leamed Sessions 
Judge, Chamba, Division Chamba within a period of six months 
from today failing which the sentence of imprisonment shall 
revive. On deposit of such fine, it shall be paid to the complainant. 
A direction is issued to the learned Sessions Judge, Chamba to 
comply with this judgment." 
5. Respondent has not challenged the order against that part of 
the judgment whereby her conviction has been upheld by the High Court. 
To that extent, the judgment of the High Court has attained finality. On 
the contrary, it is the State which has filed the Special Leave Petition 
under Article 136 of the Constitution (out of which present appeal arises), 
questioning the validity, propriety and justification of the impugned order 
whereby the sentence of imprisonment is set aside and substituted by 
fine of Rs. 30,000/-. Therefore, the learned counsel for the parties 
confined their submissions on this aspect alone. 
6. Before examining the issue raised, it would be apposite to
take note of the prosecution case against the respondent for which she 
stands convicted. The case originated on the basis of complaint filed by 
the complainant, Ramesh Kumar (PW-13), resulting into registration of 
the FIR (Exh. PL). He stated therein that on 22"' August, 2000, he left 
his house situated at Preet Nagar, Jammu at around 8.40 A.M. in the 
morning to withdraw 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 oftime, 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 
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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 Van where after the 
complainant lost consciousness. He regained his senses/consciousness 
in the Civil Hospital at Dalhousie in the early hours of24'" August, 2000. 
He had lost all the currency. The case is that the money had been looted 
from the complainant; he had been beaten up badly and dumped in a 
Nullah somewhere near Dalhousie. 
5. It is on the aforesaid allegations that the respondent along 
with Krishan Lal were fasten with the charges under Sections 328, 392, 
307 read with Section 34 of the !PC. As pointed above, prosecution 
was able to substantiate the aforesaid allegations resulting into the 
conviction of the respondent. 
8. To put it in nutshell, the prosecution succeeded in proving, 
beyond reasonable doubt, that respondent in furtherance of common 
intention with her co-accused had administ~red stupefying intoxicating 
substance to the complainant with intent to commission
of offence, that 
is, theft of currency notes of the complainant and in the process attempted 
to kill the complainant as well. 
9. At this juncture, I would like to reproduce the provisions under 
which the respondent has been convicted. 
·' · 
"S. 328: Causing hurt by means of poison, etc. with intent 
to commit an offence: 
Whoever administers to or causes to be taken by any person 
any poison or any stupefying, intoxicating or unwholesome drug, 
or other thing with intent to cause hurt to such person, or with 
intent to commit or to facilitate the commission of an offence or 
knowing it to be likely that he will thereby cause hurt, shall be 
punished with imprisonment of either description for a tenn which 
may extend to ten years, and shall also be liable to fine. 
S. 392: Punishment for robbery: 
Whoever commits robbery shall be punished with rigorous
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
[A. K. SJKRI, J.] 
imprisonment for a term which may extend to ten years; and 
shall also be liable to fine; and, ifthe robbery be committed on 
the highway between sunset and sunrise, the imprisonment may 
be extended to fourteen years. 
S. 307 : A'ttempt to murder.-Whoever does any act with 
such intention or knowledge, and under such circumstances that, 
if-he by that act caused death, he would be guilty or murder, shall 
be punished with imprisonment of either description for a term 
which may extend to ten years, and shall also be liable 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.] 
I 0. 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 IPC.is I 0 years 
as well as fine. Likewise, the punishment stipulated in Section 392 !PC 
is 'rigorous imprisonment' for a term which may extend to I 0 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 IPC 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 or knowledge that 
it may cause death. 
11. In the instant case, hurt is caused. Following aspects are 
clearly discernible from the reading of these provisions: 
(a) The offences mentioned under ail these Sections are of 
serious nature. 
(b) Maximum penalty, under normal circumstances, is I 0 years 
which under certain circumstances can even be life 
imprisonment (Section 307 IPC) or 14 years (under Section 
392 !PC) 
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(c) Whereas imprisonment under Sections 307 !PC and 328 
!PC can be of either description, namely, 'simple 
imprisonment' or 'rigorous imprisonment' and, therefore, it 
is left to the discretion of the trial court to award any of 
these depending upon the circumstances of a case, insofar 
as punishment under Section 392 !PC is concerned there is 
no such discretion and the imprisonment has to be rigorous 
in nature. 
12. In the instant case, as noticed above, trial court a\varded 
imprisonment of two years, that too, simple imprisonment for all the 
three offences which was to run concurrently. The record shows that it 
was pleaded before the trial court that respondent is a lady and further 
that she had three minor sons. These considerations persuaded the trial 
court to take a lenient view. In the appeal filed by the respondent before 
the I ligh Court, on the question of sentence same very circumstances 
were pleaded, which resulted in mellowing the High Court further by 
setting aside the imprisonment part of sentencing and modifying the 
sentence to that of fine of Rs. 30,000/- alone. 
13. In this context and factual background, two points arise for 
consideration, viz.: 
(i) 
Whether the High Court was permitted, in law, to do away 
with the punishment of imprisonment altogether and 
substitutes the same with fine alone? 
(ii) Whether the circumstances pleaded by the respondent were 
so mitigating
that punishment of fine alone could be justified? 
14. Coming to the first question, as can be seen from the language 
of Sections 307, 328 and 392 of !PC, 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". This expression came up for consideration in Z1111iarrao Bltikaji 
Nagarkar v. Union of l11tlia & Ors.' and the Court explained that in 
such circumstances, it is imperative to impose both the sentences i.e. 
imprisonment as well as fine. Tims, 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 
1 \t999J1sec409
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STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
[A. K. SIKRI, J .] 
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, 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 a power has to be exercised in terms of the provisions of 
Indian Penal Code etc: for which the accused has been convicted. Power 
to alter the sentence would not extend to exercising the powers contrary 
to law. It clearly follows that the High Court committed a legal error in 
doing away with the sentence of imprisonment altogether. 
16. The second question is as to whether the circumstances 
pleaded by the respondent justify taking a lenient view in the matter. 
The acts committed by the respondent constitute heinous offences. 
Having common intention along with co-accused, she administered poison 
like substance to the complainant; robbed him of his money; and even 
attempted to kill him. As
already held, award of sentence is imprisonment 
is a must. The question is, in the wake of the commission of crime of this 
nature, to what extent the mitigating factor viz. the respondent being a 
woman and having three minor children, be taken for the purposes of 
• 
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sentencmg? 
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17. In Zunjarrao B/1ikaji Nagarkar 's case, it was impressed 
upon by this Court that the penalty to be imposed has to commensurate 
with the gravity of the offence. In Narinder Sing fl & Ors. v. State of 
Punjab & Am:'. there is a brief narration of the jurisprudential theories 
of punishment in criminal cases, described as under: 
"14. The law prohibits certain acts and/or conduct and treats 
them as offences. Any person committing those acts is subject 
to penal consequences which may be of various kinds. Mostly, 
punishment provided for committing offences is either 
imprisonment or monetary fine or both. Imprisonment can be 
rigorous or simple in nature. Why are those persons who commit 
1 (2014)6 sec 466 
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offences subjected to such penal consequences? There are many 
philosophies behind such sentencing justifying these penal 
consequences. The philosophical/jurisprudential justification can 
be retribution, incapacitation, specific deterrence, general 
deterrence, rehabilitation, or restoration. Any of the above or a 
combination thereof can be the goal of sentencing. 
15. Whereas in various countries, sentencing guidelines are 
provided, statutorily or otherwise, which may guide Judges for 
awarding specific sentence, in India we do not have any such 
sentencing policy till date. The prevalence of such guidelines 
may not only aim at achieving consistencies in awarding sentences 
in different cases, such guidelines normally prescribe the 
sentenci1lg 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, 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 individual offender should be 
punished in order to deter other effectively as it amounts to 
greatest good of the greatest number of persons in a society. It 
is in this context that we have to understand the scheme/ 
philosophy behind Section 307 of the Code. 
17. We would like to expand this principle in some more detail.
STATE OF HlMACHAL PRADESH v. NlRMALA DEVI 
127 
[A. K. SIKRI, J.] 
We find, in practice and in reality, after recording the conviction 
and while awarding the sentence/punishment the court is 
generally governed by any or all or combination of the aforesaid 
factors. Sometimes, it is the deterrence theory which prevails in 
the minds of the court, particularly in those cases where the 
crimes committed are heinous in nature or depict depravity, or 
lack morality. At times it is to satisfy the element of"emotion" in 
law and retribution/vengeance becomes the guiding factor. In 
any case, it cannot be denied that the purpose of punishment by 
law is deterrence, constrained by considerations of justice. What, 
then, is the role of mercy, forgiveness and compassion in law? 
These are by no means comfortable questions and even the 
answers may not be comforting. There may be certain cases 
which are too obvious, namely, cases involving heinous crime 
with element of criminality against the society and not parties 
inter se. In such cases, the deterrence as purpose of punishment 
becomes paramount and even if the victim or his relatives have 
shown the virtue and gentility, agreeing to forgive the culprit, 
compassion of that private party would not move the court in 
accepting the same as larger and more important public policy 
of showing the iron hand oflaw to the wrongdoers, to reduce the 
commission of such offences, is more important. Cases of murder, 
rape, or other sexual
offences, etc. would clearly fall in this 
category. After all, justice requires long-term vision. On the other 
hand, there may be offences falling in the category where the 
"correctional" objective of criminal law would have to be given 
more weightage in contrast with "deterrence" philosophy. 
Punishment, whatever else may be, must be fair and conducive 
to good rather than further evil. Ifin a particular case the court 
is of the opinion that the settlement between the parties would 
lead to more' "'nd; 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 
pai1icular case." 
18. The offences for which the respondent is convicted prescribe 
maximum imprisonment and there is no provision for minimum 
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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 Sa ti sh Kumar Jaya11ti Lal Dab gar v. State of Gujarat' 
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 (Cri) 184]: (SCC pp. 337-39, paras 33-36) 
"33. It is seemly to state here that though the question of 
sentence is a matter of discretion, yet the said discretion cannot 
be used by a court of law in a fanciful and whimsical manner. 
Very strong reasons on consideration of the relevant factors 
have to form the fulcrum for lenient use of the said discretion. 
It is because the ringing of poignant and inimitable expression, 
in a way, the warning of Benjamin N. Cardozo in The Nature 
of the Judicial Process-Yale University Press, 1921 Edn., 
p.114: 
'The Judge even when
he is free, is still not wholly free. He is 
not to innovate at pleasure. He is not a knight errant roaming 
at will in pursuit of his own ideal of beauty or of goodness. He 
is to draw his inspiration from consecrated principles. He is 
not to yield to spasmodic sentiment, to vague and unregulated 
benevolence. He is to exercise a discretion informed by 
tradition, methodised by analogy, disciplined by system, and 
subordinated to "the primordial necessity of order in social life".' 
34. In this regard, we may usefully quote a passage from Ramji 
Daymm/a and Sons (P) ltd. v. Invest Import [( 1981) I SCC 
80] : (SCC p. 96, para 20) 
"20 .... when it is said that a matter is within the discretion of 
the court it is to be exercised according to well-established 
H 
• (2015) 7 sec 359
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
[A. K. SIKRI, J.] 
judicial principles. according to reason and fair play. and not 
according to whim and caprice. "Discretion", said Lord 
Mansfield in R. v. Wilkes [( 1770) 4 Burr 2527 : ( 1558-1 774) 
All ER Rep 570 : 98 ER 327] , "when applied to a court of 
justice, means sound discretion guided by law. It must be 
governed by rule, not by humour; it must not be arbitrary, vague, 
and fanciful, but legal and regular" (see Craies 011 Statute 
Law, 6th Edn., p. 273).' 
35. In Aero Traders (P) Ltd. v. Ravinder Kumar Suri [(2004) 
8 SCC 307] the Court observed: (SCC p. 3 11, para 6) 
"6 .... According to Black's Lall' Dictionary ''judicial 
discretion" means the exercise of judgment by a Judge or court 
based on what is fair under the circumstances and guided by 
the rules and principles of law; a court's power to act or not 
act when a litigant is not entitled to demand the act as a matter 
ofright. 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 Jiiris 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 cornt to 
impose adequate sentence. for one of the purposes of imRosition 
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ofrequisite sentence is protection of the society and a legitimate 
response to the collective conscience. The paramount principle 
that should be the guiding laser beam is that the punishment should 
be proportionate. It is the answer of law to the social conscience. 
Jn a way, it is an obligation to the society which has reposed faith 
in the court of law to curtail the evil. While imposing the sentence 
it is the court's accountability to remind itself about its role and 
the reverence for rule of law. It must evince the rationalised 
judicial discretion and not an individual perception or a moral 
propensity. But, if in the ultimate eventuate the proper sentence 
is not awarded, the fundamental grammar of sentencing is 
guillotined. Law cannot tolerate it; 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 re~pondent is sentenced to undergo 
rigorous imprisonment for two years apart from the fine that has 
been imposed by the learned trial Judge." 
19. Likewise, stressing upon the principle of proportionality in 
sentencing in the case of Hazara Singh v. Raj Kumar & Ors,', 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: 
'!201319 sec 516
\ 
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
f A. K. SIKRI, J.l 
"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 Shai/esh Jasvantbhai 
v. State of 
Gujarat [(2006) 2 SCC 359: (2006) I SCC (Cri) 499] wherein 
the accused was convicted under Sections 307 /114 IPC and for 
the same the trial court sentenced the accused for l 0 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-cultural conflict where living law must find answer to 
the new challenges and the courts are required to mould the 
sentencing system to meet the challenges. The contagion of 
lawlessness would undermine social order and lay it
in ruins. 
Protection of society and stamping out criminal proclivity must 
be the object of law which must be achieved by imposing 
appropriate sentence. Therefore, law as a cornerstone of the 
edifice of 'order' should meet the challenges confronting the 
society. Friedman in his Law in Changing Society stated that: 
'State of criminal law continues to be-as it should be-a 
decisive reflection of social consciousness of society.' 
Therefore, in operating the sentencing system, law should adopt 
the corrective machinery or deterrence based on factual matrix. 
By deft modulation, sentencing process be stern where it should 
be, and tempered with mercy where it warrants to be. 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 
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circumstances are relevant facts which would enter into the 
area of consideration. 
8. Therefore, undue sympathy to impose inadequate sentence 
would do more harm to the justice system to undermine the 
public confidence in the efficacy oflaw and society could not 
long endure under such serious threats. It is, therefore, the 
duty of every cou11 to award proper sentence having regard to 
the nature of the offence and the manner in which it was 
executed or committed, etc." 
13. This position was reiterated by a three-Judge Bench of this 
Court in Ahmed Hussein Vali Mohammed Saiyed v. State of 
Gujarat [(2009) 7 SCC 254: (2009) 3 SCC (Cri) 368], wherein 
it was observed as follows: (SCC p. 281, paras 99-100) 
"99 .... The object of awarding appropriate sentence should 
be to protect the society and to deterthe criminal from achieving 
the avowed object to (sic break the) law by imposing appropriate 
sentence. It is expected that the courts would 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. 
I 00. 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 ofappropriate punishment. The court 
will be failing in its duty ifappropriate 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 Olrnccount of lapse of time without considering
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
fA. K. SIKRI, J.l 
the degree of the offence will be counterproductive in the long 
run and against the interest of the society. 
I 4. In Jameel v. State of U.P. ~(20 l 0) 12 SCC 532 : (2011) l 
SCC (Cri) 582], this Court reiterated the principle by stating that 
the punishment must be appropriate and proportional to the gravity 
of the offence committed. Speaking about the concept of 
sentencing, this Court observed thus: (SCC p. 535, paras 15-16) 
"15. In operating the sentencing system, law should adopt the 
corrective machinery or deterrence based on factual matrix. 
By deft modulation, sentencing process be stern where it should 
be, and tempered with mercy where it warrants to be. 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. 
16. 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 sentencing courts 
are expected to consider all relevant facts and circumstances 
bearing on the question of sentence and proceed to impose a 
sentence commensurate with the gravity of the offence." 
15. In Guru Basavaraj v. State of Karnataka [(2012) 8 SCC 
734:
(2012) 4 SCC (Civ) 594: (2013) I SCC (Cri) 972], while 
discussing the concept of appropriate sentence, this Court 
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expressed th@t: (SCC pp. 744-45, para 33) 
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"33 .... It is the duty of the court to see that appropriate 
sentence is imposed regard being had to the commission of the 
crime and its impact on the social order. The cry of the collective 
for justice which includes adequate punishment cannot be lightly 
ignored." 
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16. Recently, this Court in Gopal Singh v. State of 
Uttarakhand [(2013) 7 SCC 545: (2013) 3 SCC (Cri) 608: JT 
(2013) 3 SC 444] held as under: (SCC p. 551, para 18) 
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"18. Just punishment is the collective cry of the society. While 
the collective cry has to be kept uppermost in the mind, 
simultaneously the principle of proportionality between the crime 
and punishment cannot be totally brushed aside. The principle 
of just punishment is the bedrock of sentencing in respect of a 
criminal offence." 
17. We reiterate that in 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." 
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20. Following principles can be deduced from the reading of the 
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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 justification can be retribution, incapacitation, 
specific deterrence, general deterrence, rehabilitation, or 
restoration. Any of the above or a combination thereof can 
be the goal of sentencing.
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
135 
[A. K. SIKRI, J.] 
(iii) Notwithstanding the above theories of punishment, when it 
comes to sentencing a person for committing a heinous crime, 
the deterrence theory as a rationale for punishing the 
offender becomes more relevant. In such cases, the role 
of mercy, forgiveness and compassion becomes seconda1y. 
(iv) In such cases where the deterrence theory has to prevail, 
while detennining the quantum of sentence, discretion lies 
with the Court. While exercising such a discretion, the Court 
has to govern itself by reason and fair play, and discretion 
is not to be exercised according to whim and caprice. 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 response to the 
collective conscience. 
(v) While considering as to what would be the appropriate 
quantum of imprisonment, the Court is empowered to take 
into consideration mitigating circumstances, as well as 
aggravating circumstances. 
21. When the Indian Penal Code provides discretion to Indian 
Judges while awarding the sentence, the Court will have undoubtedly 
regard to extenuating and mitigating circumstances. In this backdrop, 
the question is as to whether the respondent being a lady and having 
three minor children will be extenuating reasons? I may observe that in 
many countries of the world, gender is not a mitigating factor. Some 
jurists
also stress that 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 the criminal world; they are 
emulating them in all the crimes; and even surpassing men at times. 
Therefore, concept of criminal justice is not necessarily synonymous 
with social justice. Eugene Mc Laughlin shows a middle path. She 
finds 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 cert1!in decisions of this Court, 
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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 serv.ice 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 
C ·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 !PC, which were to be run concurrently. There was no 
reason to show any further mercy by the High Court. Further, as found 
above, removing the element of imprisonment altogether was, in any 
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case, errgneous in law. I, thus, allow this appeal and set aside the 
sentencing part of the judgment of the High Court and restore the judgment 
of the trial court. 
ASH OK BHUSHAN, J. I. Leave granted. I had advantage of 
going through the erudite judgment of brother Justice A. K. Sikri and I 
E 
am in full agreement with the opinion expressed by brother
Justice A. K. 
Sikri. Looking to the importance of issues involved in this appeal, I have 
also penned my reasons. 
2. State of Himachal Pradesh has filed this appeal, challenging 
the judgment of the High Court dated 03.07.2012 by which, criminal 
F 
appeal filed by the respondent-accused had been decided, setting-aside 
the sentence of the imprisonment under Section 328, 392 and 307 !PC 
and modifying the fine of Rs. 2000/-to a fine of Rs. 30,000/-. 
3. The brief facts necessary to be noted for deciding the issues 
raised in the appeal are: 
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a. On 22.08.2000, Rakesh Kumar (complainant), Resident of Preet 
Nagar, Jammu, left his house for withdrawing a sum of Rs. 27,000/-
lying in his account in a bank at Satbari for purchasing an auto-tempo 
from Pathankot as the complainant was running a private school upto 
middle class in Jammu. 
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b. When the complainant was on his way to Bank and reached near
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
[ASHOK BI-IUSHAN, J.) 
Digyana Bus Stand, he met Krishan Lal Shanna (Accused No. I) in his 
Maruti Van No. JK -02M-4392. 
c. Then the Accused No. I took the complainant to the house of his 
neighbour Smt. Nirmala Devi (respondent-accused). The Accused No. 
1 informed the complainant that since the Respondent-Accused also 
had to go to Pathankot, therefore, they all would go together. In the 
house of the Respondent-Accused, the complainant was offered a glass 
of water and thereafter a cup of tea after which the complainant 
suspected that he had been made to ingest some intoxicant. Thereafter, 
all boarded the van where the complainant 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 Criminal Procedure 
Code narrating the whole incident mentioned above. 
e. On the compliant, FIR No. 80 of2000 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. I 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. I was convicted and sentenced for 
offences punishable under Section 328, 392, 397 lPC vide judgment 
dated 19.4.2002. During the trial of the Respondent-accused, she was 
declared proclaimed offender. Upon being apprehended, the remaining 
prosecution witnesses were recorded. 
4. The learned Sessions Judge convicted the respondent-accused 
for offences under Section 328, 392 and 397 read with Section 34 IPC. 
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After recording the conviction, the learned Sessions Judge imposed 
following sentence: 
" ...... she is ordered lo undergo simple imprisonment for a 
period of two years and to pay fine in tile sum of Rs. 2,0001 
- in default of payment of which to undergo imprisonment 
for a further period oft/tree months for the offence punishable 
under Section 328 /PC, simple imprisonment for a period of 
two years and also to pay fine in the sum of Rs. 2,0001- in 
default of payment of which to undergo simple imprisonment 
for a further period oft/tree months for the offence punishable 
under Section 307 /PC and to undergo simple imprisonment 
for a period of two years anti to pay fine in the sum Rs. 
2,0001- in default of payment to which lo undergo simple 
imprisonment for a further period of three months for the 
offence punishable under Section 392 /PC. All the 
substantive sentences are ordered to run concurrently.,. 
5. The respondent filed Criminal Appeal No. 79 of2003, which 
had been heard and decided by High Court vide its judgment dated 
03.07.2012. High Court taking a lenient view on sentence decided the 
appeal by passing the following order: 
"However, on the conspectus of the material on record, it . 
would be in the fitness of things in case the sentence of 
imprisonment under each head is set aside and instead a 
fine of Rs. 30, 0001- is imposed upon the appellant with a 
direction that the amount be
deposited in the Court of learned 
Sessions Judge, Cltamba, Division Chamba within a period 
of six months from today failing which tile sentence of 
imprisonment slwll revive. On deposit of such fine, it shall 
be paid to the complainant. A direction is issued to the 
learned Sessions Judge, Cllllmba to comply with this 
iudgment." 
6. 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
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
[ASHOK BHUSHAN, J.] 
the power given under Section 386 of the Code of Criminal Procedure 
1973 (hereinafter referred to as "the Code"). High Cpurt 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. 
7. 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 
beingjust and equitable, this Court need not interfere with the alteration 
of sentence ordered by the High Court. 
8. 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 sentence of imprisonment, as imposed by trial court 
under Section 328, 392 and 307 IPC by enhancing the amount of fine to 
Rs. 30,000/- from the fine Rs. 2,000/- as ordered by trial court. 
9. Section 386 of the Code provides for 'power of the Appellate 
Court'.
Section 386 of the Code which is relevant forthe present case is 
quoted below: 
"386.Powers of tfte Appellate Court. - After perusing sucft 
record and /tearing tfte appellant or /tis pleader, if fie 
appears, and tfte Public Prosecutor if fte appears, and in 
case of an appeal under section 377 or section 378, the 
accused, if fte appears, tfte Appellate Court may, if it 
considers tftat tftere is no sufficient ground for interfering, 
dismiss the appeal, or may-
( a) in an appeal from an order or acquittal, reverse such 
order and direct that further inquiry be made, or that tire 
accused be re- tried or committed for trial, 11s the case nu1y 
be, or find him guilty and pass sentence on him according to 
law; 
(b) in an 11ppeal from a conviction-
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(i) reverse tlte finding and sentence and 11cquit or discharge 
tfte accused, or order llim to be re-tried by a Court of 
compete11/ jurisdiction subordinate to sucft Appellate Court 
or committed/or trial, or 
(ii) alter tfte fimlinf?, m11illlaininK tfte sentence, or 
(iii) witft or wit/tout altering the finding, alter tfte nature or 
the extent, or tfte nature and extent, of the sentence, but not 
so 11s to enllance the Same; 
(c) in an 11ppeal for enhancement of sentence-
(i) reverse the fi1uling and sentence and acquit or discharge 
the accused or order llim to be re- tried by a Court competent 
to try the offence, or 
,(ii) 11lter tfte fimlinK m11int11ini11f? the sentence, or 
(iii) with or wit/tout altering the finding, alter tfte nature or 
tile extent, or lite nature and extent, oftlte sentence, so as to 
enhance or reduce the same; 
(d) in 1111 appeal from any other order, alter or reverse such 
order; 
(e) make 1111y 11mendment or any consequential or incidental 
order tftat m11y be just or proper; 
Provided th11t tile sentence sft11ll not be enlumced unless 
tile 11ccused has fwd 11n opportunity of showing cause ag11inst 
such enhancement: 
Provided further that the Appellate Court shall not i11jlict 
greater punishment for the offence which ill its opinion tfte 
accused ftas committed, titan mif?ltt /111ve been inflicted for 
tit at offence by tfte Court p11ssing the order or se1ilence under
appe11l." 
10. A perusal of the judgment of the High Cou11 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 f11ct that the money has been recovered 
from the 11cc11sed, there is 110 doubt in mind tllat tfte appellant 
is guilty for tfte offences as charged. I c11nnot accept tllis
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
[ASHOK BHUSHAN, J.] 
submission tit at tlte evidence of tlte witnesses does not prove 
tlte guilt oftlte accusetl Tltere is tit us no merit in tit is appeal 
w/liclt is accordingly dismissed." 
11. 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 th is 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 the finding 
of the guilt? 
12. In the present case, accused has been convicted under 
Sections 307, 328 and 392 IPC. lt is useful to look into the above provisions 
to find out nature of sentence which could be awarded for an offence 
under the aforesaid sections. Sections 307, 328 & 392 IPC are extracted 
as below: 
"307. Attempt to murder.- Wltoever does any act witlt sucft 
intentio.n or knowledge, am/ under suclt circumstances tltat, 
if lte by tltat act caused deatft, lte would be guilty of murder, 
sllall be punislletl witlt imprisonment of eitlter description 
for a term wlticlt may extend to ten
years, and slta/I also be 
liable to fine; anti if lturt is caused lo any person by suclt 
act, tlte offender situ/I be liable eitlter lo l[impriso11111ent for 
life], or lo such punisltment as is ltereinbefore mentioned. 
Attempts by life convicts.-2/Wlten any person offending 
under tltis section is under sentence of l[imprisonment for 
life], lte may, if lturt is caused, be punislted witlt deatlt.] 
328. Causing fturt by means of poison, etc., witlt intent to 
commit an offence.- Wftoever administers to or causes to 
be taken by any person any poison or any stupefying, 
intoxicating or unwlwlesome drug, or otlter tiling witlt intent 
to cause lturt to suclt person, or witft intent to commit or to 
facilitate tlte commission of an offence or knowing it to be 
likely tftat lte will thereby cause /turf, sit all be punislted witlt 
imprisonment of either description for a term wlticlt may 
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A 
extend to ten years, and shall also be liable lo fine. 
392. Punishment for robbery.- Whoever commits robbery 
shall be punished with rigorous imprisonment for a term 
which may extend to ten years, and shall also be liable to 
fine; and, if lite robbery be committed on lite liigitway between 
B 
sunset and sunrise, the imprisonment may be extended lo 
fourteen years." 
13. 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 
c 
months for each of the above offences. 
14. 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 
D 
a fine or it was incumbent on the trial court to impose the sentence of 
imprisonment as well as fine? 
E 
15. 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 !PC 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. 
F 
Section 309 of !PC provides for punishment for an offence to attempt 
suicide. Section 309 ofIPC is quoted as below: 
G 
H 
"309. Attempt to commit suicide.-Wlwever attempts lo 
commit suicide and does any act towards lite commission of 
sucit offence, sitall ite punisited witit simple imprisonment 
for a term witicit may extend lo one year l[or witit fine, or 
with both]." 
16. Prior to amendments made in Section 309 by Act 8 of 1882, 
the punishment provided for Section 309 was 'simple imprisonment for 
a term, which can be extended to one year or, and shall also be I iable to 
fine. By the above amendments of 1882 the words 'and shall also be
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
[ASHOK BHUSHAN, J.] 
liable to fine' have been deleted and substituted by the words 'or with 
fine or with both'. The legislature is thus well aware of the distinction 
between the punishment which provides imprisonment and with fine and 
punishment by i1nprisonment or fine or by both. Where punishment 
provided is both by imprisonment and fine, can Court punish only with 
fine? 
17. In the present case, High Court by its judgment has punished 
the accused only witli'fine after affirming the finding of the guilt recorded 
by the trial court. 
18. In an early decision of Allahabad High Court in Btufri Prasad 
Vs. Emperor, (1922) /LR 44All 538, the Division Bench of the Court 
had occasion to consider the punishment in context of Section 392 IPC. 
In the above case for an offence under Section 392 IPC, the Magistrate 
inflicted a fine of Rs. I 00/- with an alternative period of imprisonment, 
and if the fine was not paid with the further sentence of 30 stripes. 
Appeal was filed by Badri Prasad which was admitted upon the question 
of sentence. A notice was also issued by the High Court why sentence 
should not be enhanced or otherwise altered. 
19. Chief Justice Edward Grimwood Mears in his separate 
judgment held as follows: 
· 
" ....... In tflese circumstances, tile Magistrate inflicted a fine 
of Rs. I 00 witfl an alternative period of imprisonment, if 
that fine was not paid, and sentenced Badri Prasad also to 
thirty stripes.
Badri Prasad preferred an appeal to this Court 
and it flas been admitted upoll tfle questioll of sentellce only-
alld, at tfle same time, llotice flas beell served oil flim to show 
cause wfly Ifie se11tellce sflould llOI be e11fla11ced or otherwise 
altered. This was a cflarge Ullder Sectioll 390 alld the pellafty 
is prescribed ullder Sectioll 392. A11 examillatioll of that 
sectioll shows that a jille alone is llOt a permitted pullis/1melll 
for a robbery. Robbery, ullfler tflese circumstallces, may be 
pullisfled by rigorous imprisollme11t and by a fine, alld ill 
certaill cases by w/1ippillg ill additioll. But tfle Magistrate 
erred ill law ill selllellcillg tfle accused to a fille a/Ill a fille 
Ullaccompallied by imprisollmellt ....... " 
" ....... Tflerefore, I defer very gladly to wflitt I have llO doubts 
is ill this case Mr. Justice Ballllerji's better judgme11t Oil tfle 
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matter, I am quite in accord witlt ltim tltat tltere must he a 
substantial period of imprisonment and, therefore, we alter 
tlte nature of the punisltment wlticl1 Badri Prasad must 
undergo, and we sentence flim to twelve montlts' rigorous 
imprisonment witlt effect from tlte date of ft is arrest. We 
maintain tlte fine of imprisonment wit ft tlte alternative period 
of imprisonment if tliat fine he not paid, and we wipe out 
tltat part of tlte sentence wfticlt orders flim to receive a 
whipping." 
20. Justice Pramoda Charan Bannerji, in his separate judgment 
stated the following: 
"I am of opinion tltat tlte Court below was wrong in not 
inflicting on tlte appellant a sentence of imprisonment. A 
sentence of imprisonment is an essential sentence under 
SeCtion 392 of tlte Indian Penal Code. To tftis sentence a 
fine may he addetf and, under Section 4 of tlte Wltipping 
Act, a sentence of wftipping may he imposed wlzere, in tlte 
commission of robbery, lturt is caused. Tlterefore, tlze 
sentence of fine only was an illegal sentence, .and a sentence 
of imprisonment ouglzt to ltave been imposed." 
21. Judgment in Mis. Rajastlwn Pharmaceutical Laboratory, 
Bangalore and Two Otfters versus State of Karnataka, (198I) 1 
SCC 6f5, is also relevant to be referred to. Iq the above case, the Court 
had occasion to examine Section 27a(ii) and Section 34(2) of Drugs & 
Cosmetics Act, 1940. Section 27a(ii) also contains
punishment "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". 
-
22. In para 5 of the judgment, the above provision has been · 
extracted as below: 
"5. Cltapter IV of tfte Act, fteaded "Manufacture, Sale and 
G · 
Distribution of Drugs and Cosmetics" includes Section 16 to 
Section 33A. Section 18 prov!des inter alia : 
H 
..... no person. sltall ltimsel/ or by any otlter person on ft is 
{Jeltalf-
(a) manufactur~ for sale, or sell, or stock or exhibit for 
sale, or distribute-
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
145 
[ASHOK BHUSHAN, J.] 
(i) any drug or cosmetic wlticlt is not of standard quality; 
A 
(b) ....... 
(c) manufacture for sale, or sell, or stock or exltibit for 
sale or distribute any drug or cosmetic, except under, and 
in accordance witlt Ille conditions of, a licence issued .... 
• 
* 
* 
* 
* 
Section 18-A is in tltese terms: 
Disclosure of tire name of the manufacturer, etc.- Every 
person, 1101 being the manufacturer of a drug or cosmetic 
B 
or his agent for the distributio11 tflereof, shall, if so required, 
C 
disclose to the 111spector the name, address and other 
particulars of the person from wltom fie acquired the drug 
or cosmetic. 
Section 27 which enumerates tire penalties for illegal 
manufacture, sale, etc., of drugs reads-
D 
Whoever himself or by any other person 011 his behalf 
manufactures for sale, sells, stocks or exhibits for safe or 
distributes-
(a) any drug-
(i) ......... 
(ii) wit/tout a valid licence as required under clause (c) of 
.Section 18, 
shall be punishable with imprisonment for a term which sit all 
E 
not be less than one year but wlticfl may extend to ten years 
F 
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 
co11trave11tio11 of any of tlte provisions of this Chapter or 
any rule made thereunder
slrnll be pu11isflab/e with 
imprisonment for a term which may extend to three years, 
or witlr fine, or witlr botlr. 
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Section 28 provides for ''pe11alty for non-disclosure of tlte 
name of tlte manufacturer, etc." a11d states: 
Wlloever contrave11es tile provisions of Section 18-A sllall 
be punisltable witlt impriso11ment for a term wlticlt may 
extend to one year, or wit/1 fine wlticlt may extend to five 
hundred rupees, or witlr botlr." 
23. In the above case, High Court has found the accused guilty 
for an offence under Section 1 S(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. 
24. This Court in para 7 had stated as follows: 
"7. Tile Higlt Court imposed a fine of two tltousand rupees 
on eaclr of tlte tltree appellants for tile offence under Section 
18(c). Section 27(a)(ii)_makes a sente11ce of imprisonment 
of not less titan one year compulsory for melt offence in 
addition to fine u11/ess for special reasons a sente11ce of 
imprisonme11t for a lesser period was warranted." 
25. 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. 111 tile result, wlrile maintaining t!.!e co11viction of tlte 
appellants, we remit tlte case to tlte Higlt Court; tire Higlr 
Court will consider again on tire fi11dillgs already recorded 
tire question of sentence-( a) for tlte offence under Section 
18(c)punislrable
under Section 27(a)(ii)_so far as appellants 
2 and 3 are concerned, and (b) for tlte offence punisltable 
u11der Section 28_ofwlticl1 all tlte I/tree appellants /rave been 
found guilty,- and pass appropriate sentences. Tlte appeal 
is allowed to tire extent and in tire manner indicated above." 
26. Another judgment which needs to be noted is Zunjarrao 
Bl1ikaji Nagarkar versus Union of India and Others, (1999) 7 SCC 
409. 
27. In the above case, this Court had considered Section 325 !PC 
and the phrase 'and shall also be liable to fine'. The Court held that 
when the punishment provided is for sentence of imprisonment and also 
~ith fine, the imprisonment and fine both are imperative. In para 37, 38 
& 39 following was stated:
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
[ASHOK BHUSHAN, J.] 
"37. Penalty to be imposed llas to be in commensurate witll 
tile gravity of tile offence anti tile exte11t of tile evasio11. 111 
tile present case, pe11a/ty coultl llave been justified Appel/a11t 
was, llowever, of tile view tllat imposition of pe11alty was not 
mantlatory. He could II ave formed sucll a 1'iew. Under Section 
325 of tile Indian Penal Code, a person found guilty "sllal/ 
be punislled witll imprisonment of eitllu tlescriplio11 for a 
term wilicll may extend to seven years, and silall also be 
liable to fine". Section 63 /PC provides rhat wllere no sum 
is expressed to wlliclt a fine may extent/, the t1mount of fine 
to wllicll tile offender is liable is unlimited, but sllall not be 
excessive. A Single Judge of tlte Pot11t1 Higll Court in Tett1r 
Gope v. Gm1t1uri Gope took lite view that expression "sllall 
also liable to fine" in Section 325 IPC tloes not mean that a 
sentence of fine must be imposed in every case of conviction 
in tllat section. He said: 
"Suell <m expression llas been 11sed 'in tlte Penni Code 
only in connectio11 witll those offences where the legislature 
has provitled that a sentence of imprisonment is compulsory. 
In regard to such offences, tile legislature has left a 
discretion ill the Court to impose also a 'sentence of fine in 
appropriate cases in atldition to tile imposition of a sentence 
of imprisonment which alone is obligatory." 
38. We do not think that tile
view expressed by tile Patna 
High Court is correct as it would appear from tlte language 
of tire section tlrat sentences of botlr imprisonment and fine 
are imperative. It is tile extent of fine wiliclr lras been left to 
tire discretion of tire court. In Rajastlran Pltarmaceutica/s 
Laboratory v. State of Karnataka tlris Court lras taken Ille 
view tlrat imprisonment anti fine botlr are imperative wlren 
t/1e expression "shall also be liable to fine" was used under 
Section 34 of t/1e Drugs anti Cosmetics Act, 1940. In I/rat 
case, tllis Court was considering Section 27 oft/re Drugs and 
Cosmetics Act, 1940, w/1iclr enumerates tlle penalties for 
illegal manufacture, sale, etc., of drugs and is as under -
"27. Wlroever lrimself or by any other person on llis belralf 
manufacture for sale, sells, stocks or exilibits for sale or 
distributes -
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(a) any drug -
(i) 
* 
* 
* 
(ii) without a valid licence as required under clause(c) of 
Section 18, 
shall be punishable willt imprisonment for a term which shall 
not be less titan one year but wlticlt may extend to /en years 
and shall also be liable to fine: 
Provided I/rat 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 t/ra/ the High Court imposed a fine of 
two thousand rupees on eaclr of tire three appellants for tile 
offence 
under 
Section l 8(c) of the Act 
wlten 
Section 27(a)(ii) m"kes " sentence of imprisonment of not 
less lll"n one ye(lr compulsory for such offence in "ddition 
lo fine unless for special reasons "sentence of imprisonment 
for" lesser period was warr"nted. 11 would tit us "ppear tll"t 
tltis Court was of tile opinion th"t in suclt " case 
imprisonment ""d fine, botlt are imperative." 
* 
* 
* 
* 
28. Thus, the punishment provided in aforesaid sections which 
contains the imprisonment and shall also be liable to fine has to be read 
to mean that offence being proved under Section 307, 329 and 392 IPC 
the punishment of imprisonment and fine are imperative. 
29. As noted above, the 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 h~s-been provided for 
as noted, in the Scheme of Section 309 of!PC. The punishment provided 
G 
in Section 307, 328 and 392 !PC are those which have been provided for 
serious offences and it cannot be countenance that the offence having 
.been proved the punishment can only be a fine. 
30. In case, such interpretation is accepted those offenders in the 
society, who are financially well-off can well get away only with 
H 
punishment ofa fine, which shall neither be in the interest of society nor
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
[ASHOK BHUSHAN, J.] 
in accordance with the scheme of punishment, as delineated in Indian 
Penal Code. 
31. The trial court has awarded the sentence of two years 
imprisonment with fine of Rs. 2,000/- for each of the aforesaid offences, 
which was in accordance with the Statutory Scheme. We are thus of 
the clear opinion that punishment under Section 307, 328 and 392 !PC 
cannot only be a fine, imprisonment is an imperative part of punishment. 
32. 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 und,er 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 ace.used guilty and pass such 
sentence on him according to law. 
33. 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 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. 
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34. Appellate Court ~annot exercise its power under 386(b )(iii) to 
alter the sentence of the imprison01ent 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 
G 
will be unfair and unjust. 
' 
35. In a case of murder, it is relevant to note that under Section 
302 !PC 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 
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impermissible and not in accordance with the Scheme of Indian Penal 
Code. Thus, no interpretation can be put to Section 386(b)(iii) except 
that the power of the Appellate Court to alter the sentence awarded by 
trial court has to be in accordance with Jaw Le. sentencing provisions as 
contained in the Indian Penal Code. 
36. There is one more aspect of the matter which needs to be 
noted. Section 386 Sub clause (b)(i) uses the phrase 'reverse the finding 
and sentence, whereas Sub clause (iii) uses the phrase 'alter the nature 
or the extent or the nature and the extent of the sentence'. There is a 
difference between the word 'reverse' and 'alter', both have been made, 
contemplating different consequences and circumstances. 
37. This Court, in State of An<l/1ra Prt1desli versus Tliadi 
Narayana AIR 1962 SC 240 in para 12, while considering the word 
reverse and alter used in Section 423 akin to Section 386 of the Code,, 
stated as following: 
~ 
D 
"12. Tlie word "alter" must in, Ifie context be distinguislied 
from the word "reversed". 
Wliereas, under S. 
423(1)(b)(l)power is conferred on the Higli Court to reverse 
the order of conviction the power conferred on the Appellate 
Court by the expression "alter the finding" is merely the 
power to alter. Reversal of the order implies its obliteration, 
E 
whereas alteration would imply no more t/ian modification 
and not its obliteratiOn." 
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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. 
39. 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. 
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. 30,0001- only. 
41. The State in this appeal has challenged the order passed by 
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the High Court modifying the sentence. The Hi~ Court has modified
STATE OF HIMACHAL PRADESH v. NIRMALA DEVI 
151 
[ASHOK BHUSHAN, J.] 
the sentence taking into consideration that appellant lady has to take 
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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. Tiie convict was heard on tlle quantum of punis/1ment. 
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Siie pleased for a lenient view being the first offender anti a 
young lady of about 40 years in age. Siie also stated that slle 
llas three minor sons and out of them two are mentally 
unsound." 
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. 
43. 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 IPC, the maximum 
punishment is for the period of fourteen years. 
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. 
ORDER OF THE COURT 
The appeal is allowed. Judgment of the High Court is set aside to 
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the extent it modifies the sentence and the sentence of imprisonment as 
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awarded by the trial court is restored herewith. The respondent shall be 
taken into custody to serve the sentence. 
No costs. 
Nidhi Jain 
Appeal allowed. 
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