In Sentence Enhancement Appeals, HC Can't Convert Conviction In Lesser Offence Into Graver Offence: Himachal Pradesh High Court

A bench of Justice Rakesh Kainthal observed,

“..when a person is charged with a graver offence but is convicted of the lesser offences, the same amounts to the acquittal of the serious offence and it is not permissible for the High Court to convert the lesser offence into serious offence in an appeal for enhancement of sentence. The High Court can only enhance the sentence provided for the lesser offence of which the person was found guilty”.

The court made these observations while hearing an appeal under Section 377 of the Criminal Procedure Code (Cr.P.C.) against the order of conviction and sentence passed by Special Judge-II, Kullu, District Kullu, H.P.

The accused, Shaul Borov, was found in possession of 2.500 kgs of charas, categorized as a commercial quantity. The state contended that the sentence imposed by the learned Trial Court, six months of rigorous imprisonment and a fine of ₹1,000, was inadequate.

Mr Jitender Sharma, Additional Advocate General representing the State of H.P., argued that the accused should have been sentenced following the possession of a commercial quantity, which entails imprisonment for not less than 10 years and a fine of not less than ₹1,00,000. The state contended that the sentence imposed by the Trial Court did not align with the gravity of the offence.

Justice Kainthla meticulously examined precedents from the Privy Council, Supreme Court, and Karnataka High Court to establish a clear legal principle that acquittal on a graver charge stands as an acquittal as a conviction for a lesser offence effectively amounts to acquittal of the graver charge.

Observing that an appellate court cannot alter the nature of acquittal in an appeal for sentence enhancement, the bench explained that courts cannot convert a lesser offence into the graver offence for which the accused was acquitted.

To fortify its stand, the bench referenced Eknath Shankarrao Mukkawar v. State of Maharashtra, (1977) wherein the SC observed,

“While the accused in such an appeal under Section 377 CrPC can show that he is innocent of the offence, the prosecution is not entitled to show that he is guilty of a graver offence and on that basis, the sentence should be enhanced. The prosecution will only be able to urge that the sentence is inadequate on the charge as found or even on an altered less grave charge”.

Deliberating on the sentence enhancement power the bench clarified that the appellate court's power is restricted to enhancing the sentence within the limits prescribed for the lesser offense of conviction.

Noting that the accused faced a charge for possessing a small quantity of a controlled substance, carrying a maximum penalty of one year imprisonment or a fine up to ₹10,000 the bench concluded that having already served a sentence beyond the statutory maximum, further enhancement is impermissible and hence dismissed the appeal.

Case Title: State of H.P Vs Shaul Borov

Citation: 2023 LiveLaw (HP) 83

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