Shankar Thakur @ Shankardev Narayan ... vs The State Of Bihar
2025 Latest Caselaw 1892 Patna

Patna High Court

Shankar Thakur @ Shankardev Narayan ... vs The State Of Bihar on 20 February, 2025

Author: Alok Kumar Pandey

Bench: Alok Kumar Pandey

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.694 of 2024
         Arising Out of PS. Case No.-675 Year-2021 Thana- GOPALGANJ TOWN District-
                                           Gopalganj
     ======================================================
     Shankar Thakur @ Shankardev Narayan Thakur S/o Late Devnarayan Thakur
     R/o Village-Antaur, P.O.-Antaur, P.S.-Bahera, District-Darbhanga, At Present
     residing at Village- Shiv Shankar Chawi Committee, Shastri Nagar, D Mello
     Compound, Dhobighat,Vakola, Santacruz(East) Mumbai, Maharashtra,
     400055

                                                                    ... ... Appellant/s
                                          Versus
1.   The State of Bihar
2.   Rajiv Ranjan Pathak S/o Shri. Vishawnath Pathak R/o Adhiwakta Nagar,
     Ward No. 14, District-Gopalganj

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Appellant/s            :       Mr. Sanjeev Kumar, Advocate
                                            Mr. Ravi Kumar Pandey, Advocate
     For the Respondent No. 2       :       Mr. Sumit Shekhar Pandey, Advocate
     For the State                  :       Mr. Dilip Kumar Sinha, A.P.P.
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
             and
             HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
                       ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Date : 20-02-2025

Heard Mr. Sanjeev Kumar, learned counsel for the

appellant assisted by Mr. Ravi Kumar Pandey, Mr. Sumit Shekhar

Pandey for the Respondent No. 2 and Mr. Dilip Kumar Sinha,

learned A.P.P. for the Respondent -State.

2. Learned counsel for the appellant has referred

the averments made in the memo of the appeal and thereafter

contended that the present appellant filed an F.I.R. against Patna High Court CR. APP (DB) No.694 of 2024 dt.20-02-2025

Respondent No. 2 for committing the offence punishable under

Sections 304B, 306 of I.P.C. and Sections- 3 and 4 of Dowry

Prohibition Act. It is further submitted that, after investigation, the

investigating agency filed the charge-sheet against the Respondent

No. 2/accused before the concerned Magistrate Court. However,

the case was exclusively triable by the Court of Sessions and,

therefore, the concerned Magistrate committed the same to the

Sessions Court.

3. It is submitted that before the Sessions Court,

the prosecution examined 9 witnesses and produced documentary

evidence. The defence has also examined 1 defence witness.

Thereafter, statement of the Respondent No. 2/accused under

Section 313 of the Code came to be recorded.

4. It has been pointed out by the learned counsel

for the appellant that thereafter the Trial court convicted the

Respondent No. 2/accused for committing the offences punishable

under Sections- 304B, 306 of I.P.C. and Sections- 3 and 4 of

Dowry Prohibition Act and he has been sentenced to undergo R.I.

for 7 years for the offence punishable under Section-304B of I.P.C.

He has further been sentenced to undergo R.I. for 7 years and to

pay a fine of Rs. 20,000/- for the offence punishable under

Section-306 of I.P.C. and, in default of payment of fine, to further Patna High Court CR. APP (DB) No.694 of 2024 dt.20-02-2025

undergo additional imprisonment of six months. Further, the Trial

court also sentenced him to undergo R.I. for 5 yrs. and to pay a

fine of Rs. 30,000/- for committing offence punishable under

Section 3 of Dowry Prohibition Act and, in default of payment of

fine, to undergo additional imprisonment of six months. The Trial

court has also sentenced the Respondent No. 2/accused to suffer

R.I. for 1 year and a fine of Rs. 10,000/- for committing the

offence punishable under Section 4 of the Dowry Prohibition Act

and, in default of payment of fine, to undergo additional

imprisonment of 3 months and, if the fine is realized, the same has

been directed to be given to the child of the deceased.

5. The appellant/victim has preferred the present

appeal under Proviso of Section 372 of the Code of Criminal

Procedure, 1973 (hereinafter, referred as the 'Code') in which the

appellant has challenged the order dated 08.04.2024 rendered by

the learned Additional Sessions Judge-III, Gopalganj in Session

Trial No. 84 of 2022 to the extent of imposing lesser punishment/

sentence to Respondent No. 2/accused.

6. Learned counsel for the appellant/victim would

submit that the present appeal has been filed by the appellant with

a grievance that the Trial court ought to have imposed maximum

punishment/ sentence provided under Section 304B and Section Patna High Court CR. APP (DB) No.694 of 2024 dt.20-02-2025

306 of I.P.C. looking to the facts and circumstances of the present

case. He, therefore, urged that the present appeal be admitted and,

after hearing the parties, the sentence imposed by the Trial Court

be enhanced.

7. On the other hand, learned counsel appearing

for the Respondent No. 2/accused has submitted that the present

appeal under Proviso of Section 372 the Code is not maintainable.

It is contended that for enhancement of the sentence, appeal under

Proviso of Section 372 the Code cannot be filed. He, therefore,

urged that this appeal be dismissed only on this ground.

8. Learned A.P.P. has also supported the

submission canvassed by the learned counsel for the Respondent

No. 2.

9. We have perused the material placed on record

and considered the submissions canvassed by the learned counsel.

From perusal of the judgment dated 08.04.2024 passed by the

concerned Trial court, it transpires that the Trial court has

convicted the Respondent No. 2/accused for committing offence

punishable under Section 304 of I.P.C. and he has been sentenced

to suffer R.I. for 7 years. Similarly, he has been convicted for

committing the offence under Section 306 of I.P.C. and has been

sentenced to suffer R.I. for 7 years. Now, it is the grievance of the Patna High Court CR. APP (DB) No.694 of 2024 dt.20-02-2025

appellant/victim that the Trial court has imposed lesser

punishment/ sentence and, therefore, punishment imposed by the

Trial court be enhanced.

10. At this stage, we would like to refer the

provisions contained in Section 372 of the Code which provides as

under:-

"372. No appeal to lie unless otherwise provided.--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.

[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.]

11. From the Proviso contained in the aforesaid

Section, it would reveal that the right has been given to the victim

to prefer an appeal against the order passed by the Court under

three circumstances: (i) when the accused has been acquitted or (ii)

when the accused has been convicted for lesser offence or (iii)

when the Trial court has awarded inadequate compensation.

11.1. Thus, from the aforesaid provision, it can be

said that when the Trial court has imposed lesser sentence, victim

cannot prefer an appeal under Proviso of Section 372 of the Code. Patna High Court CR. APP (DB) No.694 of 2024 dt.20-02-2025

12. Keeping in view the aforesaid provision, if the

facts of the present case and the grievance of the appellant/victim

is carefully examined, it is revealed that the appellant has not

preferred the present appeal against the order of acquittal nor he

has preferred the present appeal with a grievance that Respondent

No. 2/ accused has been convicted for lesser offence nor there is

no grievance of the appellant that the Trial court has granted

inadequate compensation. The only grievance of the appellant is

that the Trial court has imposed lesser sentence.

13. We are of the view that for enhancement of the

sentence, victim cannot prefer an appeal under Proviso of Section

372 of the Code.

13.1. In fact, under Section 377 of the Code, the

State can prefer an appeal against an order of sentence imposed by

the Trial court. However, such right has not been given to the

victim to file an appeal for the enhancement of the sentence under

Proviso of Section 372 of the Code.

14. Accordingly, we are of the view that the

present appeal is not maintainable and, therefore, the same stands

dismissed.

15. However, it is clarified that we have not

examined the merits of the case of the appellant and, therefore, it is Patna High Court CR. APP (DB) No.694 of 2024 dt.20-02-2025

always open of the appellant to file appropriate proceeding before

appropriate forum including filing of Criminal Revision

application before this Court for the grievances raised in the

present appeal.

(Vipul M. Pancholi, J)

(Alok Kumar Pandey, J) Sachin/-

AFR/NAFR                         A.F.R.
CAV DATE                         N.A.
Uploading Date                27.02.2025
Transmission Date             27.02.2025