Observing this, the top court set aside the Himachal Pradesh High Court verdict imposing only a fine on a woman, who was convicted of drugging and taking part in robbing a man, and said leniency cannot be shown beyond what has been allowed in the statutory scheme.
A bench, comprising Justices A K Sikri and Ashok Bhushan, who wrote separate but concurring verdicts, said the convict was already shown leniency by the trial court on the ground that she has three minor kids. The trial court awarded her a two-year jail term and a fine of Rs 6,000.
The High Court raised this fine to Rs 30,000 and allowed the woman to walk free.
Justice Sikri said "In the present case, two mitigating circumstances which are pressed into service by the respondent (accused) 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," the judge said.
Justice Bhushan was harsher in his observations and said, "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 will be unfair and unjust."
Justice Sikri, however, said though gender is not a mitigating circumstances in awarding sentence, in Indian context, a woman can be shown leniency in some cases as the impact of jail term on her kids cannot be lost sight of.
"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," he said.
The verdict came on an appeal against the High Court order which modified the trial court order and imposed the fine only on her.
It was alleged that the woman had helped a man rob another of Rs 27,000 by administering drinks laced with sedatives in August 2000 in Himachal Pradesh.
A Chamba trial court had convicted her and awarded two- year jail term, besides fine. Thereafter, she approached the High Court of Himachal Pradesh against the trial court order.