# Archana Devi (Informant) v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 327
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-19
- **Case number:** Crl. Misc. Application Defective (Leave To Appeal) No. 01 of 2014
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/archana-devi-informant-v-state-of-u-p-ors-48764
- **Pages:** 3

## Headnote

Law
-
Code
of
Criminal
Procedure1973 - Section 372 - Appeal
against acquittal- enormous delay in lodging
of the FIR without explanation - nature of
injuries do not support the case of the
prosecution that after three hits by a fourwheeler upon a two-wheeler such type of
injur

## Text

8 All. Archana Devi Vs. State of U.P. & Ors.
327
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

28. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

29. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

30. In view of the above, as far as
offence under Section 326 of IPC is
concerned,
punishment
of
10
years
imprisonment is too harsh and the fine of
Rs.25000/- is also too harsh. We reduce the
sentence to 9 years' incarceration and fine
to Rs.2000/-, reason being, the complainant
and
the
injured
would
have
been
adequately
compensated
by
the
Government
as
they
have
invoked
provisions of Section 3 (2) (v) of SC/ST
Act. We do not direct refund of the said
amount though we record clean acquittal
under Section 3 (2) (v) of SC/ST Act. We
also reduce the default sentence to one
month.

31. The accused-appellant is in jail. If
9 years of incarceration is over, he shall be
set free immediately, if not warranted in
any other offence. The default sentence will
be given effect to after completion of 9th
year of incarceration and if the period of
default sentence is also over, he need not
pay fine. Record be transmitted to Trial
Court.
----------
(2022) 8 ILRA 327
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Crl. Misc. Application Defective (Leave To
Appeal) No. 01 of 2014
(U/s 372 Cr.P.C.)
IN
Criminal Appeal No. NIL of 2013

Archana Devi ...Appellant (Informant)
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri P.K. Singh

Counsel for the Respondents:
Govt. Advocate, Sri Apul Mishra, Sri Rakesh
Dubey

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section 372 - Appeal for
enhancement of punishment-not maintainable.

Appeal dismissed. (E-9)
328 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Parvinder Kansal Vs The St. of NCT of Del. &
anr, 2020 (113) ACC 676

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Vikas Budhwar, J.)

1. List revised. None is present to
present this appeal on behalf of the
applicant. Sri Rakesh Dubey, learned
counsel for the accused-respondents is
present.

2. The present appeal has been filed
with delay condonation application.

3. Office has reported a delay of 122
days.

4. Sri Rakesh Dubey, learned counsel
for the accused-respondent while drawing
attention to the prayer clause has submitted
that the present appeal has been filed for
enhancement of the sentence. The prayer so
made in the memo of appeal is quoted as
under:-

"It is, therefore, most respectfully
prayed that this Hon'ble Court may
graciously be pleased to enhance the
sentence of accused respondents No. 2 & 3
and convict the accused respondent No. 3
to 6 who have been acquitted from the
charges ignoring the evidence And /or pass
such other and further order which this
Hon'ble court may deem fit and proper in
the circumstances of the case."

5. By placing reliance on the
judgment of Hon'ble Apex Court in the
case of Parvinder Kansal Vs. The State
of NCT of Delhi and Anr. reported in
2020 (113) ACC 676, Sri Rakesh Dubey
submitted that the appeal for enhancement
of punishment u/s 372, Cr.P.C. is not
maintainable, paragraph no. 9 which is
quoted as under:-

"9. Chapter XXIX of the Code of
Criminal Procedure, 1973 deals with
''Appeals' and Section 372 makes it clear
that no appeal to lie unless otherwise
provided by the Code or any other law for
the time being in force. It is not in dispute
that in the instant case appellant has
preferred appeal only under Section 372,
Cr.P.C. The proviso is inserted to Section
372, Cr.P.C. by Act 5 of 2009. Section 372
and the proviso which is subsequently
inserted read 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." A reading of the proviso makes it
clear that so far as victim's right of appeal
is concerned, same is restricted to three
eventualities, namely, acquittal of the
accused; conviction of the accused for
lesser offence; or for imposing inadequate
.A.@S.L.P.(Crl.)No.3928
of
2020
compensation. While the victim is given
opportunity to prefer appeal in the event of
imposing inadequate compensation, but at
the same time there is no provision for
appeal by the victim for questioning the
order of sentence as inadequate, whereas
Section 377, Cr.P.C. gives the power to the
State Government to prefer appeal for
8 All. Shyam Sunder Sharma Vs. State of U.P. & Ors.
329
enhancement of sentence. While it is open
for the State Government to prefer appeal
for inadequate sentence under Section 377,
Cr.P.C. but similarly no appeal can be
maintained by victim under Section 372,
Cr.P.C. on the ground of inadequate
sentence. It is fairly well settled that the
remedy of appeal is creature of the Statute.
Unless same is provided either under Code
of Criminal Procedure or by any other law
for the time being in force no appeal,
seeking enhancement of sentence at the
instance of the victim, is maintainable.
Further we are of the view that the High
Court while referring to the judgment of
this Court in the case of National
Commission for Women v. State of Delhi &
Anr. (2010) 12 SCC 599 has rightly relied
on the same and dismissed the appeal, as
not maintainable."

6. The appeal stands dismissed as not
maintainable in the light of the judgment of
Hon'ble Apex Court in the case of
Parvinder Kansal Vs. The State of NCT
of Delhi and Anr. reported in 2020 (113)
ACC 676.

7. Since this appeal itself is not
maintainable therefore there is no question
of consideration on delay condonation
application,
accordingly,
the
delay
condonation application stands rejected. At
present, there is no requirement to file
leave to appeal.

8. The connected criminal appeal are
of the year 2013, accordingly, office is
directed to list the connected criminal
appeals in the next cause list before
appropriate bench.
----------
(2022) 8 ILRA 329
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2022
BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal U/S 372 No. 220 of 2021

Shyam Sunder Sharma
 ...Appellant/Complainant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Shyam Surat Shukla, Sri Shailendra
Kumar Ojha

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure1973 - Section 372 - Appeal
against acquittal- enormous delay in lodging
of the FIR without explanation - nature of
injuries do not support the case of the
prosecution that after three hits by a fourwheeler upon a two-wheeler such type of
injuries could have been sustained -no
medical
examination-
material
contradictions
in
testimony
of
the
prosecution witnesses.

Appeal dismissed. (E-9)

List of Cases cited:

1.Tota Singh & anr. Vs St. of Pun., (1987) 2 SCC
529

2. Ramesh Babulal Doshi Vs St. of Guj. (1996) 9
SCC 225

3. St. of Raj. Vs St. of Guj. (2003) 8 SCC 180

4. St. of Goa Vs Sanjay Thakran, (2007) 3 SCC
755,

5.Chandrappa & ors. Vs St. of Kar., (2007) 4
S.C.C. 415

6.Ghurey Lal Vs St. of U.P., (2008) 10 SCC
450