Patna High Court: The Division Bench of Ashwani Kumar Singh snd Arvind Srivastava, JJ., reiterated that a victim has no right to maintain an appeal under the proviso to Section 372 of the CrPC on the ground of inadequate sentence.
Background
The instant appeal was filed by the appellant on being aggrieved and dissatisfied with the sentence passed by the Special Judge, POCSO Court-cum-Additional Sessions Judge-VI. Noticeably, on the basis information provided by the appellant an FIR was registered under Sections 363, 364, 366A of the Indian Penal Code (IPC) and 8 of the Protection of Children from Sexual Offences Act (POCSO Act). Later on, Sections 302, 376, 307 and 201 of the IPC and 4 of the POCSO Act were added to the FIR during investigation after the dead body of the missing daughter of the appellant was recovered. The appellant, who was the father of the deceased girl, had filed the instant appeal challenging the order of sentence passed by the Trial Court seeking enhancement of sentence to death penalty.
Sentence Awarded by the Trial Court
Since the defence did not produce any evidence, the Trial Court heard the arguments advanced on behalf of the parties and, vide judgment dated 19-10-2020 convicted the respondent 2 for the offences punishable under Sections 363, 364, 366, 307, 376, 302, 201 of the IPC and 4(2) of the POCSO Act. Pursuant to which following sentence was awarded to the respondent 2:
“1. 363 IPC Rigorous imprisonment for a term of seven years and a fine of Rs.5000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.
- 364 IPC Rigorous imprisonment for a term of ten years and a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for six months.
- 366 IPC Rigorous imprisonment for a term of ten years and a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for six months.
- 307 IPC Rigorous imprisonment for a term of ten years and a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for six months.
- 302 IPC Imprisonment for life and a fine of Rs.10000/- and in default of payment of fine to further undergo imprisonment for six months.
- 201 IPC Rigorous imprisonment for a term of seven years and a fine of Rs.2000/- and in default of payment of fine to further undergo imprisonment for six months.
- 4(2) of the POCSO Act Imprisonment for life which shall mean imprisonment for the remainder of natural life of the accused and a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for six months.”
Contentions Raised by the Appellant
After awarding the sentence for the proved charges under various provisions of the IPC and the POCSO Act in the manner indicated hereinabove, the Trial Court directed that all the sentences shall run concurrently and the period of detention already undergone by the convict shall be set off against the period of imprisonment.
The appellant submitted that his daughter, a minor girl, aged 8 years, was raped in car and when she started crying; she was strangulated to death by respondent 2. He contended that after ravishing a minor girl and killing her, respondent 2 dumped her body behind the residence of the District Magistrate, hence, the offence committed by respondent 2 was heinous and brutal.
The appellant argued that aggravating circumstances outweighed the mitigating circumstances as a calculated and diabolical cruelty had been inflicted on an innocent girl. Therefore, the Trial Court ought to have awarded death sentence to respondent 2 for the offence punishable under Section 302 of the IPC as the punishment awarded to respondent 2 was not commensurate to the crime committed by him.
Findings of the Court
Considering the provisions prescribed under the CrPC for filing the appeal against the order of sentence and after perusing the materials on record, the Bench stated that the appeal was thoroughly misconceived. The Bench noticed Section 372 of CrPC which deals with ‘Appeals’ reads as under:- “No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force”.
The Bench observed, by the Act 5 of 2009, a right to appeal had been conferred to the ‘victim’ by inserting a proviso to Section 372 of the CrPC with effect from 31-12-2009. The proviso so inserted reads as under:
“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”
Hence, the Bench opined that a reading of the proviso would make it clear that so far as the victim’s right to appeal is concerned, the same can be invoked only under the following circumstances:
(a) Acquittal of the accused;
(b) Conviction of the accused for a lesser offence; or,
(c) In case of imposition of inadequate compensation.
Accordingly, holding that there is no provision under the CrPC for an appeal by the ‘victim’ against the order of an inadequate sentence, the Bench clarified the only provision for appeal against inadequate sentence is Section 377 which provides for filing appeal by the State Government for enhancement of sentence. Hence, the appeal was dismissed. [Sanjay Kumar v. State of Bihar, CRIMINAL APPEAL (DB) No.401 of 2021, decided on 23-08-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance:
For the Appellant: Mr Rabindra Nath Tiwari, Advocate
For the Respondent-State: Mr Dilip Kumar Sinha, APP
