Case No.  Crl. Appeal No. 667/2017
 Petitioner’s Adv  Promila
 Respondent’s Adv  —
 Bench  A.K. Sikri, Ashok Bhushan, JJ.
 Judgment By  A.K. Sikri, J.
 Full Judgment  Click Here

The respondent in this faced trial for an offence punishable under 328, 392, 397 read with 34 of the Indian Penal Code, 1860. In the judgment dated 27th February, 2003 the session judge convicted the respondent and awarded her 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.

The respondent filed an appeal against the judgment passed by the session judge in the High Court. Though the High Court confirmed the conviction, but at the same time, the High Court, taking into account the argument given by the counsel for the respondent, modified the award of the sentence by removing the imprisonment part of the sentence and substituted the same with fine of 30,000 Rs. The High Court in its concluding paragraph said that —

“I have given careful consideration to the submission made by the learned counsel appearing for the appellant, who submits 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 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 of a fine of Rs. 30,000/- is imposed upon the appellant…….”

The State of Himachal Pradesh then filed a Special Leave Petition under article 136 of the constitution of India questioning the validity, propriety, and justification of the High Court’s order. The Supreme Court set aside the order of the High Court to the extent it modifies the sentence and restored the sentence of imprisonment as awarded by the session court. The Supreme Court primarily discussed the question as to what extent the mitigating factor viz. the respondent being a woman and having three minor children, be taken for the purposes of sentencing.

The Apex Court said the following in its judgment–

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.

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.

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.

In such cases where the deterrence theory has to prevail, while determining 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 the protection of the society and a legitimate response to the collective conscience.

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.

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?  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, the 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 to give similar penalty for similar offences. However, when it comes to doing ‘real justice’, the 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, the court found that 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. For example, where a woman has committed a crime being a part of a terrorist group, mercy or compassion may not be shown.

In the present case, two mitigating circumstances which are pressed into service by the respondent are that she is a woman and she is having three minor children. This has to be balanced with the nature of the crime which the respondent has 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 of the IPC, 1860 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 case, erroneous 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.


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