The Himachal Pradesh High Court dismissed an appeal filed under Section 377 of Cr.P.C. against the order of conviction and sentence dated 31.03.2023 passed by learned Special Judge-II. The Court observed that it is not permissible for the High Court to convert the lesser offense into a serious offense in an appeal for enhancement of sentence.
Brief Facts:
It has been asserted that the accused was found in possession of 2.500 kgs of charas, which is a commercial quantity. He was liable to imprisonment for not less than 10 years and payment of a fine of not less than ₹ 1,00,000/-. However, the accused was sentenced to undergo rigorous imprisonment for six months and payment of a fine of ₹1,000/-. The sentence imposed by the learned Trial Court is inadequate and liable to be enhanced. Hence, the appeal.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that the State is aggrieved by the fact that the learned Trial Court had sentenced the accused for the possession of the small quantity of the charas, whereas he was found in possession of the commercial quantity. The sentence imposed by the learned Trial Court is inadequate and is required to be enhanced.
The Court noted that when a person tried for an offence punishable under Section 302 of IPC is convicted under Section 304 of IPC, the order of the Sessions Judge amounts to an acquittal and the Court has no jurisdiction to alter the conviction from Section 304 to Section 302 of IPC and thereafter enhance the sentence.
The Court observed that when a person is charged with a graver offense but is convicted of the lesser offense, the same amounts to the acquittal of the serious offense and it is not permissible for the High Court to convert the lesser offense into a serious offense in an appeal for enhancement of sentence. The High Court can only enhance the sentence provided for the lesser offense of which the person was found guilty.
The decision of the Court:
The Himachal Pradesh High Court, dismissing the appeal, held that the accused has already undergone imprisonment for a period more than the maximum sentence provided under the Act, therefore, it is not permissible to enhance the sentence more than the maximum.
Case Title: State of H.P. v Shaul Borov
Coram: Hon’ble Justice Rakesh Kainthla
Case no.: Cr. Appeal No.325 of 2023
Advocate for the Appellant: Mr. Jitender Sharma
Advocate for the Respondents: None
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