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2012 DIGILAW 320 (UTT)

VINOD SHARMA v. STATE OF UTTARAKHAND

2012-06-25

PRAFULLA C.PANT

body2012
JUDGMENT Hon’ble Prafulla C. Pant, J. 1. By means of this petition, moved under Section 482 of Cr.P.C., the petitioners have challenged the order dated 07.05.2011, passed by Additional Sessions Judge/2nd Fast Track Court, Haridwar, in Criminal Appeal No. 45 of 2005 and Criminal Revision No. 296 of 2005, whereby said court has dismissed the appeal and allowed the revision. It is further directed by the appellate/revisional court that the sentence awarded against the petitioner No.1 Vinod Sharma is modified and enhanced to simple imprisonment for a period of one year, apart from the fine directed to be paid by the trial court. 2. Heard learned counsel for the petitioners, and learned counsel for the State, and perused the papers on record. 3. Prosecution story in brief is that on 27.11.1995, at about 6:30 am when the complainant (respondent No.2) Som Dutt had gone to ease out himself in a field, the petitioner No.2 Shiv Prasad and petitioner No.3 Om Dutt armed with LATHIES along with petitioner No.1 Vinod Sharma came there and assaulted him. It is alleged that the fire was also shot. On the complaint of the said incident, later, the Magistrate, after recording the evidence of the complainant under Section 200 and that of witnesses under Section 202 of Cr.P.C., summoned the petitioners to face the trial in respect of offences punishable under Section 324, 504, 506 of I.P.C. The witnesses were examined under Section 244 of Cr.P.C. Whereafter charge was framed in respect of aforesaid three offences (324, 504, 506 of I.P.C.) against all the three petitioners, who pleaded not guilty and claimed to be tried. Under Section 246 of Cr.P.C., the witnesses namely PW-1 Amar Singh, PW-2 Som Dutt, PW-3 Virendra Kumar were further cross-examined and PW-4 Surendra Kumar was also got examined. The trial court put the oral and documentary evidence to the accused under Section 313 of Cr.P.C. regarding which the accused alleged that the same to be false. The trial court after hearing the parties, found all the three petitioners guilty of charge of offence punishable under Section 324 read with 34 of I.P.C. However, on hearing on sentence, each one of them was sentenced only to pay fine of Rs. one thousand. Aggrieved by the conviction, all the convicts (present petitioners) filed the criminal appeal No. 45 of 2005 before the Sessions Judge, Haridwar. one thousand. Aggrieved by the conviction, all the convicts (present petitioners) filed the criminal appeal No. 45 of 2005 before the Sessions Judge, Haridwar. The complainant also filed the Criminal Revision No. 296 of 2005. The appellate/revisional court consolidated the appeal and the revision and decided the both vide impugned order dated 07.05.2011, enhancing the sentence awarded to the petitioner No.1 Vinod Sharma and directed him to undergo simple imprisonment for a period of one year, in addition to direction of the trial court to pay fine of Rs. one thousand. 4. Learned counsel for the petitioners argued that the appellate/revisional court has erred in law in enhancing the sentence against the petitioner No.1 Vinod Sharma without there being any appeal for enhancement of the sentence. It is further argued that under revisional jurisdiction, what the revisional court could have at the most done is that after setting aside the trial court’s order, such court should have been directed to award appropriate sentence. It is further pointed out that the revisional court on one hand dismissed the appeal of the petitioners, upholding the judgment of the trial court, not only on the conviction but also on the sentence, and simultaneously, allowed the revision and enhanced the sentence without there being any appeal for the same. 5. Section 324 of Indian Penal Code 1860, provides that for voluntarily causing hurt with dangerous weapon, a person can be sentenced with a imprisonment for a term which may extend to three years, or with fine, or with both. As such, Section 324 allows the trial court to award sentence of fine also. It is pertinent to mention here that it was a complaint case and there were three lacerated wounds found on the person of the injured. Though, the sentence awarded by the trial court appears to be lenient, but there was no appeal maintainable in the year 2005 by the complainant for enhancing of sentence. Only State Government could have filed the appeal for enhancement of sentence, whether the case was a Police Chalani Case, or of any other kind in the year 2005, as provided under Section 377 of Cr.P.C. 6. Proviso of Section 372 of Cr.P.C inserted vide Act 5 of 2009 w.e.f. 31.12.2009, allows the victim to file the appeal not only against the acquittal but also against the inadequate sentence. Proviso of Section 372 of Cr.P.C inserted vide Act 5 of 2009 w.e.f. 31.12.2009, allows the victim to file the appeal not only against the acquittal but also against the inadequate sentence. But in the year 2005, there was no such right with the complainant. As such, what the lower appellate/revisional court could have done is that the appeal of the convicts should have been dismissed on the point of conviction, and on the point of sentence, the revision should have been allowed and directed the trial court to pass appropriate orders on sentence. The appellate court of sessions had no power in the year 2005, when the appeal of the convicts and the revision of the complainant were filed, to enhance the sentence of its own, particularly, when the sentence passed by the trial court was not against the law, as Section 324 allows the trial court to award the sentence of imprisonment, or fine or both. Though, I agree with the lower court that sentence awarded by the trial court was lenient, but in the present case lower appellate/revisional court has exceeded its jurisdiction in an appeal/revision pending before him. Only after 2009 appeal for enhancement of sentence could have been filed by the complainant under proviso of Section 372 of Cr.P.C., inserted vide Act No. 5 of 2009. 7. Therefore, the order passed by the lower appellate /revisional court, so far as the, sentence enhanced in respect of the petitioner No.1 Vinod Sharma is concerned, is hereby quashed. And the order of the trial court regarding conviction and sentence against the petitioners, regarding which, the appellate court has already dismissed the appeal shall stand affirmed as such.