Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.602 of 2012 ====================================================== Md. Imran Khan son of Abbas Khan, resident of Mohalla-Aktku, P.S.- Chandauti, District-Gaya .... .... Appellant/s Versus 1.The State Of Bihar 2.Md. Fakhruddin Khan son of Zamiruddin Khan 3.Md.Nazamidun Khan @ Nazimuddin Khan 4.Sahabuddin Khan Both sons of Md.Fakhruddin Khan All 2 to 4 are resident of village-Panch Devta, P.S.-Tekari, District- Gaya. .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 2 25-07-2012 Heard learned counsel for the appellant and the State. The present appeal has been filed under section 372 of the Code of Criminal Procedure on behalf of the appellant for enhancement of sentence passed by learned Additional District and Sessions Judge, F.T.C.-1, Gaya in Sessions Trial No.146 of 2012/412 of 2008 arising out of Tekari P.S. Case No.89 of 2005. The appellant is also aggrieved by the judgment of acquittal of respondent nos. 2 to 4 under [STATUTE] , hereinafter, referred to as ‘Penal Code’. The respondent nos. 2 to 4 were charged for the offence punishable under [STATUTE] . The trial court by the impugned judgment and order acquitted the accused persons under [STATUTE] but convicted them under sections 323 and Patna High Court CR. APP (SJ) No.602 of 2012 (2) dt.25-07-2012 2 2 341 of the Penal Code. The accused persons were sentenced to undergo rigorous imprisonment for one year under [STATUTE] and also to pay a fine of Rs.500/- each. In default of payment of fine they have been directed to undergo simple imprisonment for fifteen days. For the offence punishable under [STATUTE] , the accused persons were sentenced to undergo rigorous imprisonment for one month and also to pay a fine of Rs.250/- each. In default of payment of fine they have been sentenced to undergo simple imprisonment for seven days. Both the sentences have been ordered to run concurrently. The prosecution case, as per the written report of the petitioner, is that at about 3 p.m. on 17.5.2005 while he was going to look after his field, his uncle, namely, Md. Fakhruddin Khan (respondent no.2) and his cousins, namely, Sahabuddin Khan (respondent no.4) and Md. Nazamuddin Khan (respondent no.3) started altercating with him on a trivial issue and, thereafter, his uncle, Fakhruddin Khan, assaulted him by iron rod on his head and his cousin brothers brutally assaulted him as a result of which he sustained several injuries and fell down. After the investigation was over, the police submitted charge-sheet. The learned Chief Judicial Magistrate took cognizance of the offence and committed the case to the court of Patna High Court CR. APP (SJ) No.602 of 2012 (2) dt.25-07-2012 3 3 sessions for trial. The trial court framed charges and proceeded with the trial. In course of trial altogether ten witnesses were examined on behalf of the prosecution. Out of them P.W.2 Suchit Yadav, P.W.3 Surendra Yadav, P.W.4 Pundeo Yadav, P.W.5 Ramesh Yadav, P.W.6 Bhola Chaudhary and P.W.7 Ram Dayal Yadav did not support the prosecution case and, thus, they have been declared hostile by the prosecution. P.W.1, Om Prakash, though supported the prosecution case in his examination-in-chief but stated in his cross- examination that he reached at the place of occurrence after assault had already taken place. P.W.8, Md.Imram Khan, is informant as well as injured in this case. In his deposition he states that all the three accused persons assaulted him indiscriminately. The respondent no.2, Md.Fakhruddin Khan, assaulted him indiscriminately on his head and respondent no.3 Md. Nazimuddin Khan and respondent no.4 Sahabuddin Khan assaulted him with iron rod and Lathi respectively. He admits in cross-examination that Md. Fakhruddin Khan is his uncle and other accused persons are his cousin brothers. P.W.9, Dr.Nripendra Narain Sinha, had examined the injured. The doctor found bruise on back side and left side of Patna High Court CR. APP (SJ) No.602 of 2012 (2) dt.25-07-2012 4 4 trunk, complain of pain on neck left side and lacerated wound on head back side 1/4”x”x1/8”x1/8”. According to the doctor, the injuries caused were by hard and blunt substance. The doctor has proved the injury report which has been marked as Ext.2. In cross- examination he admits that the injuries found on the person of the informant may be caused by fall on hard substance. Regarding nature of injury, he states that he had kept his opinion reserved with respect to injury no.3 till receipt of X-Ray report but the prosecution failed to produce the same. The trial court on the basis of the evidence on record held that the prosecution failed to adduce any evidence that the accused persons had any intention to kill the informant and, as such, acquitted the accused persons under [STATUTE] . So far as enhancement of sentence is concerned, in my view, no such prayer can be allowed. Chapter XXIX of the Code of Criminal Procedure deals with appeal(s). Section 372 of the Code specifically provides that no appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other authority of law. The proviso inserted by section 372 (Act 5 of 2009) with effect from 31.12.2009 gives limited right to the victim to file an appeal against any order of a Patna High Court CR. APP (SJ) No.602 of 2012 (2) dt.25-07-2012 5 5 criminal court acquitting the accused or convicting him for a lesser offence or imposition of inadequate compensation. The proviso does not give a right to the victim to file an appeal for enhancement of sentence. In that view of the matter, the prayer for enhancement of sentence cannot be allowed. Having heard learned counsel for the appellant and perused the findings record

Applicable IPC Section: 307

Statute Text:
Section 307 of the Indian Penal Code. Attempt to murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.