Patna High Court
Sanjay Kumar @ Bhondu vs The State Of Bihar on 23 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.401 of 2021
Arising Out of PS. Case No.-37 Year-2018 Thana- RAMPUR District- Gaya
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Sanjay Kumar @ Bhondu S/o Late Shiv Prasad, resident of Gewal Bigha,
Akhda, Durgaa Mandap, P.S.- Rampur, Dist- Gaya.
... ... Appellant
Versus
1. The State of Bihar
2. Chhotu Rawani S/o Shivratan Ram, resident of Geval Bigha Akhara, P.S.-
Rampur, District- Gaya.
... ... Respondents
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Appearance :
For the Appellant : Mr.Rabindra Nath Tiwari, Advocate
For the Respondent-State: Mr. Dilip Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date : 23-08-2021
Being aggrieved by and dissatisfied with the order
of sentence dated 2nd November, 2020 passed by the learned
Special Judge, Exclusive POCSO Court-cum-Additional
Sessions Judge-VI, Gaya (hereinafter referred to as 'the Trial
Court') in POCSO Case No.17 of 2018, the appellant has
preferred the present appeal under the proviso to Section 372 of
the Code of Criminal Procedure (for short 'CrPC').
2. The appellant herein was the informant of
Rampur P.S. Case No. 37 of 2018 registered on 06.02.2018 for
the offences punishable under Sections 363, 364, 366A of the
Patna High Court CR. APP (DB) No.401 of 2021 dt.23-08-2021
Indian Penal Code (for short 'IPC') and 8 of the Protection of
Children from Sexual Offences Act (for short 'POCSO Act').
Later on, Sections 302, 376, 307 and 201 of the IPC and 4 of the
POCSO Act were added to the First Information Report (for
short 'FIR') during investigation after the dead body of the
missing daughter of the informant was recovered.
3. After completing the investigation, Charge-
Sheet No. 80 of 2018 dated 30.04.2018 was submitted by the
investigating officer under Sections 363, 364, 302, 201, 376 and
307 of the IPC and 4 & 8 of the POCSO Act against respondent
no.2 Chhotu Rawani.
4. Upon receiving the police report under
Section 173(2) of the CrPC, the Trial Court took cognizance of
the offences punishable under Sections 363, 364, 302, 201, 376
and 307 of the IPC and 6 of the POCSO Act on 10.05.2018 and
summoned the respondent no. 2 to face trial.
5. Having complied with the statutory
requirements of Section 207 of the CrPC, the Trial Court framed
charges against respondent no.2 under Sections 363, 364, 366A,
376, 302, 201 and 307 of the IPC and 4 of the POCSO Act to
which he pleaded not guilty and claimed to be tried.
6. After closure of the prosecution case, the
Patna High Court CR. APP (DB) No.401 of 2021 dt.23-08-2021
circumstances appearing in the evidence against the respondent
no. 2 were explained to him and his statements were recorded
under Section 313 of the CrPC.
7. 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 th October,
2020 convicted the respondent no. 2 for the offences punishable
under Sections 363, 364, 366, 307, 376, 302, 201 of the IPC and
4(2) of the POCSO Act.
8. After hearing the respondent no. 2 on the
point of sentence, the Trial Court, vide order dated 2 nd
November, 2020 sentenced the respondent no. 2 for the
respective offences in the following manner :-
Sl. Offence under Punishment awarded
No. Section
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.
2. 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.
3. 366 IPC Rigorous imprisonment for a
Patna High Court CR. APP (DB) No.401 of 2021 dt.23-08-2021
term of ten years and a fine
of Rs.5000/- and in default
of payment of fine to further
undergo imprisonment for
six months.
4. 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.
5. 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.
6. 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.
7. 4(2) of the Imprisonment for life which
POCSO Act 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.
9. 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
Patna High Court CR. APP (DB) No.401 of 2021 dt.23-08-2021
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.
10. The appellant, who is the father of the
deceased girl, has filed the instant appeal challenging the order
of sentence dated 2nd November, 2020 passed by the Trial Court
seeking enhancement of sentence to death penalty.
11. We have heard Mr. Rabindra Nath Tiwari,
learned counsel for the appellant.
12. Learned counsel for the appellant submitted
that the daughter of the appellant, a minor girl, aged 8 years,
was raped in car and when she started crying, she was
strangulated to death by the respondent no.2. He contended that
after ravishing a minor girl and killing her, the respondent no. 2
dumped her body behind the residence of the District
Magistrate. He contended that the offence committed by the
respondent no. 2 was heinous and brutal. Aggravating
circumstances outweighed the mitigating circumstances as a
calculated and diabolical cruelty has been inflicted on an
innocent girl. Hence, the Trial Court ought to have awarded
death sentence to the respondent no. 2 for the offence
punishable under Section 302 of the IPC. He argued that
Patna High Court CR. APP (DB) No.401 of 2021 dt.23-08-2021
punishment awarded to the respondent no. 2 by the Trial Court
is not commensurate to the crime committed by him. He
contended that it is a fit case for enhancement of sentence of life
imprisonment to death penalty for respondent no.2.
13. Having heard the learned counsel for the
appellant and perused the materials on record and the provisions
prescribed under the CrPC for filing the appeal against the order
of sentence, we are of the considered opinion that the instant
appeal is thoroughly misconceived.
14. Chapter XXIX of the CrPC deals with
'Appeals'. Section 372 of the CrPC as it originally stood in
Chapter XXIX 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".
15. By the Act 5 of 2009, with effect from
31.12.2009, a right to appeal has been conferred for the first
time to the 'victim' by inserting a proviso to Section 372 of the
CrPC.
16. The proviso inserted by the Act 5 of 2009
with effect from 31.12.2009 to Section 372 of the CrPC reads as
under :-
Patna High Court CR. APP (DB) No.401 of 2021 dt.23-08-2021
"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."
17. A reading of the proviso makes 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 lessor
offence; or,
(c) in case of imposition of inadequate
compensation.
18. There is no provision under the CrPC for an
appeal by the 'victim' against the order of an inadequate
sentence.
19. Against an inadequate sentence, the only
provision prescribed under Chapter XXIX is Section 377 which
provides for filing appeal by the State Government for
enhancement of sentence.
20. The appellant, herein, has preferred the
Patna High Court CR. APP (DB) No.401 of 2021 dt.23-08-2021
instant appeal under the proviso to Section 372 of the CrPC
claiming himself to be a victim under Section 2(wa) of the
CrPC.
21. It is 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.
22. For the reasons aforesaid, we do not find any
merit in this appeal. It is dismissed, accordingly.
(Ashwani Kumar Singh, J)
( Arvind Srivastava, J)
kanchan/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 27.08.2021
Transmission Date 27.08.2021
