In a significant judgment, the Supreme Court has ruled that gender can be a mitigating factor when it comes to sentencing in criminal cases..A Bench of Justices AK Sikri and Ashok Bhushan delivered separate but concurring judgments in an appeal arising out of a ruling of the Himachal Pradesh High Court..The respondent, Nirmala Devi, was convicted along with her husband under Sections 328 (causing hurt by means of poison), 392 (robbery) and 307 (attempt to murder), read with s. 34 of the Indian Penal Code..The brief facts of the case are that the respondent and her husband poisoned an acquaintance who was in possession of a large sum of cash. Once he was unconscious, the couple strangulated him and left him for dead in a ditch near Dalhousie. However, the victim survived and reported the case to the police..The trial court passed a judgment in February 2003, convicting the couple. The respondent, though, got away with a lighter sentence. She was sentenced to two years’ imprisonment and a fine amounting to a total of Rs. 12,000..The respondent appealed this judgment, and the Himachal Pradesh High Court quite strangely did away with the sentence of imprisonment altogether and imposed a fine of Rs. 30,000. This, the High Court ruled, was because the respondent was,.“…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.”.Which is when the State preferred an SLP in the Supreme Court..The apex court examined two issues, namely, whether the High Court was permitted by law to do away with the sentence of imprisonment, and whether there were mitigating circumstances to soften the sentence..The Court answered the first in the negative, ruling that what the High Court did was impermissible by law. It referred to the Supreme Court’s decision in Zunjarrao Bhikaji Nagarkar v. Union of India & Ors, in which it was held that in such circumstances, it is imperative to impose both the sentences i.e. imprisonment as well as fine..On the second aspect, the Court agreed with the trial court’s decision to impose a lighter sentence on the basis that the respondent was a woman with three children. Noting that courts have a wide discretion to impose any imprisonment, the Court held,.“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.”.In his judgment, Justice Sikri also delved into the jurisprudence of gender justice,.“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…”.Referring to the work of City University of London’s Professor of Criminology, Eugene McLaughlin, he held,.“…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..…‘real justice’ would consider the likelihood that a child might suffer more from a mother’s imprisonment than that of his father’s.”.Therefore, Sikri J set aside the sentencing part of the High Court’s judgement and restored the trial court’s ruling. He also noted in his judgment,.“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.”.Read the judgment:
In a significant judgment, the Supreme Court has ruled that gender can be a mitigating factor when it comes to sentencing in criminal cases..A Bench of Justices AK Sikri and Ashok Bhushan delivered separate but concurring judgments in an appeal arising out of a ruling of the Himachal Pradesh High Court..The respondent, Nirmala Devi, was convicted along with her husband under Sections 328 (causing hurt by means of poison), 392 (robbery) and 307 (attempt to murder), read with s. 34 of the Indian Penal Code..The brief facts of the case are that the respondent and her husband poisoned an acquaintance who was in possession of a large sum of cash. Once he was unconscious, the couple strangulated him and left him for dead in a ditch near Dalhousie. However, the victim survived and reported the case to the police..The trial court passed a judgment in February 2003, convicting the couple. The respondent, though, got away with a lighter sentence. She was sentenced to two years’ imprisonment and a fine amounting to a total of Rs. 12,000..The respondent appealed this judgment, and the Himachal Pradesh High Court quite strangely did away with the sentence of imprisonment altogether and imposed a fine of Rs. 30,000. This, the High Court ruled, was because the respondent was,.“…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.”.Which is when the State preferred an SLP in the Supreme Court..The apex court examined two issues, namely, whether the High Court was permitted by law to do away with the sentence of imprisonment, and whether there were mitigating circumstances to soften the sentence..The Court answered the first in the negative, ruling that what the High Court did was impermissible by law. It referred to the Supreme Court’s decision in Zunjarrao Bhikaji Nagarkar v. Union of India & Ors, in which it was held that in such circumstances, it is imperative to impose both the sentences i.e. imprisonment as well as fine..On the second aspect, the Court agreed with the trial court’s decision to impose a lighter sentence on the basis that the respondent was a woman with three children. Noting that courts have a wide discretion to impose any imprisonment, the Court held,.“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.”.In his judgment, Justice Sikri also delved into the jurisprudence of gender justice,.“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…”.Referring to the work of City University of London’s Professor of Criminology, Eugene McLaughlin, he held,.“…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..…‘real justice’ would consider the likelihood that a child might suffer more from a mother’s imprisonment than that of his father’s.”.Therefore, Sikri J set aside the sentencing part of the High Court’s judgement and restored the trial court’s ruling. He also noted in his judgment,.“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.”.Read the judgment:
