Women criminals not entitled to special mercy.

Women if exempt from imprisonment?


The prosecution succeeded in proving, beyond reasonable doubt, that respondent in furtherance of common intention with her co-accused had administered 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.

Provisions of law:

Maximum ‘imprisonment’ for committing offence under Section 328 IPC is 10 years as well as fine. Likewise, the punishment stipulated in Section 392 IPC is ‘rigorous imprisonment’ for a term which may extend to 10 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.


In the instant case, hurt is caused. Following aspects are clearly discernible from the reading of these provisions: The offences mentioned under all these Sections are of serious nature. Maximum penalty, under normal circumstances, is 10 years which under certain circumstances can even be life imprisonment (Section 307 IPC) or 14 years (under Section 392 IPC) Whereas imprisonment under Sections 307 IPC and 328 IPC 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 IPC is concerned there is no such discretion and the imprisonment has to be rigorous in nature.

In the instant case, as noticed above, trial court awarded 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 High 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.

Obliterated prison sentence:

As can be seen from the language of Sections 307, 328 and 392 of 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’. This expression came up for consideration in Zunjarrao Bhikaji Nagarkar v. Union of India & Ors.[1] and the Court explained that in such circumstances, it is imperative to impose both the sentences i.e. imprisonment as well as fine. Thus, 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 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.

Power of an appellate court to alter sentence:

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.

Proper sentence:

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 sentencing?

Considerations for sentence:

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 of law 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. If in a particular case the court is of the opinion that the settlement between the parties would lead to more good; 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 particular case.” 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 which have been laid down from time to time, the prime consideration being reason and fair play.
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 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? 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 certain decisions of this Court, 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.

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 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, 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.

[Source: State of H.P. vs. Nirmala Devi (SC on April 10, 2017)]


[Source: State of H.P. v. Nirmala Devi (SCI, April 10, 2017)]


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