Not permissible for High Court to convert lesser offence to serious offence in sentence enhancement appeal: Himachal Pradesh High Court

himachal pradesh high court

Himachal Pradesh High Court: In an appeal filed under Section 377 of the Criminal Procedure Code, 1973 (‘CrPC’) against the order of conviction and sentence dated 31-03-2023 passed by the Special Judge-II, District Kullu, Himachal Pradesh (‘the Trial Court’), Rakesh Kainthla, J.*, opined that in an appeal for enhancement of sentence, it was not permissible for the High Court to convert the lesser offence into serious offence and the High Court could only enhance the sentence provided for the lesser offence of which the person was found guilty. The Court opined that in the present case, the respondent had already undergone imprisonment for a period more than the maximum sentence prescribed, therefore, it was not permissible to further enhance the sentence and accordingly, dismissed the appeal.

Background

In an instant case, the respondent was found in possession of 2.500 kgs of commercial quality charas. The appellant submitted that the respondent was liable to imprisonment for not less than ten years and payment of fine which was not less than Rs. 1,00,000. However, the respondent was sentenced to undergo rigorous imprisonment for six months and payment of fine of Rs. 1,000.

Thus, the appellant filed the present appeal and submitted that the Trial Court had sentenced the respondent for the possession of small quality charas, however, it was of commercial quality. Therefore, the sentence imposed by the Trial Court was inadequate and it was required to be enhanced.

Analysis, Law, and Decision

The Court relied on Kishan Singh v. Emperor, 1928 SCC OnLine PC 62; Eknath Shankaroo Mukkawar v. State of Maharashtra, (1977) 3 SCC 25; Deepak Kumar v. State of Karnataka, 2003 SCC OnLine Kar 197 and opined that when a person was charged with graver offences, but that person was convicted of lesser offences, it amounted to the acquittal of serious offence. The Court opined that in an appeal for enhancement of sentence, it was not permissible for the High Court to convert the lesser offence into serious offence and the High Court could only enhance the sentence provided for the lesser offence of which the person was guilty.

The Court opined that in the present case, the offence of possession of a small quantity was punishable with rigorous imprisonment extendable up to one year or with a fine which might extend to Rs, 10,000. The Court opined that the respondent had already undergone imprisonment for a period more than the maximum sentence prescribed, therefore, it was not permissible to further enhance the sentence and accordingly, dismissed the present appeal.

[State of Himachal Pradesh v. Shaul Borov, 2023 SCC OnLine HP 1714, decided on 20-12-2023]

*Judgment authored by- Justice Rakesh Kainthla


Advocates who appeared in this case :

For the Appellant: Jitender Sharma, Additional Advocate General

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