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Criminal Appeal No 8983 of 2017J.A.K.SikriState of Himachal Pradesh vs Nirmala DeviIPC 302

Women criminals can be shown leniency

35. In a case of murder, it is relevant to note that 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 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 law i.e. 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.

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.

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 set­aside. 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.