PREM SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) A glaring defect of law is noticed in this case. Vide judgment dtd. 27/2/2012 passed by ACJM Nagaur in Criminal Regular Case No.205/2006 (04/2004), the appellant Shagun Singh and Prem Singh were convicted for committing offence under Sec. 420 and 120 (B) of IPC and they were directed to serve two years simple imprisonment with fine.

(2.) Aggrieved by the judgment of conviction and order of sentence dtd. 27/2/2012, the appellants preferred an appeal before the learned Additional Sessions Judge No.2, Nagaur bearing Criminal Appeal No.15/2012 (244/2015). Assailing the same judgment, an appeal on behalf of the complainant has also been preferred. The case was instituted upon a complainant and as such it was a warrant case instituted upon a complaint

(3.) To the utter dismay, learned appellate Court while dismissing the appeal has enhanced the sentence from two years to three years while taking into account the fact that the complainant Sukharam has also preferred an appeal for enhancement of the sentence and the appeal of the appellant's got dismissed. It is trite law that while exercising the power under Sec. 386 of Cr.P.C. the appellate Court cannot enhance the sentence against the judgment of conviction. Again an appeal under Sec. 377 of Cr.P.C. can only be moved at the behest of the State and the complainant is not entitled to move an appeal for enhancement of the sentence. As per proviso contained in Sec. 372 of the Cr.P.C. an aggrieved party can prefer appeal only under three contingencies, first; against judgment of acquittal, second against the conviction for a lesser offence and thirdly when it is felt that the compensation awarded to the convict was not adequate. None of the contingencies appearing in this case. Sec. 378 Subclause 4 of the Cr.P.C. stipulates an appeal by the complainant against the judgment of acquittal only and as such, it seems that the learned appellate Court has committed a grave error of law in passing the impugned judgment dtd. 20/2/2023. Thus, in the given circumstance, the order of sentence passed by the learned ACJM, Nagaur as well as passed by the learned Additional Sessions Judge No.2, Nagaur deserve to be suspended suspended till disposal of the revision petition.