Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 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 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. c
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 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 c 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: "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, whereas alteration would imply no more t/ian modification and not its obliteratiOn."
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 the High Court modifying the sentence. The Hi~ Court has modified STATE OF HIMACHAL PRADESH v. NIRMALA DEVI [ASHOK BHUSHAN, J.] the sentence taking into consideration that appellant lady has to take care of her three minor sons, out of them two are mentally retarded. The trial court, while sentencing the accused had already taken the aforesaid fact into consideration. In para 27 of the judgment trial court has noticed following: "27. Tiie convict was heard on tlle quantum of punis/1ment. 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 c the extent it modifies the sentence and the sentence of imprisonment as awarded by the trial court is restored herewith. The respondent shall be taken into custody to serve the sentence. No costs. Nidhi Jain Appeal allowed.