Neutral Citation No. - 2025:AHC:5934-DB Court No. - 47 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 701 of 2024 Appellant :- Angad Singh Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Harish Chandra Mishra,Sr. Advocate Counsel for Respondent :- G.A. Hon'ble Siddharth,J. Hon'ble Subhash Chandra Sharma,J. Heard Sri Saghir Ahmad, learned Senior Counsel assisted by Sri Harish Chandra Mishra, learned counsel for appellant; Sri Samir Sharma learned Senior Advocate, assisted by Sri Ankit Srivastava, learned counsel for the respondent no.2; Sri Rajeev Lochan Shukla, learned counsel for the respondent no.3 as well as learned A.G.A.-I for the State. This criminal appeal under Section 372 Cr.P.C has been preferred by the informant-appellant challenging the judgement and order dated 24.10.2024 of conviction of respondent nos. 2 and 3 passed by the Additional Sessions Judge, Court no.5, Kanpur Dehat in Sessions Trial No.2269 of 2023, State Vs. Rajesh and others under Sections 147, 304/149, 504/149, 506/149 and 201/149 I.P.C., Police Station Raniya, District Kanpur Dehat. Learned Senior counsel for the appellant has submitted that on the basis of evidence on record, respondent nos.2 and 3 ought to have been convicted under section 302 I.P.C and the sentence of five years awarded to them under Section 304(II) Cr.P.C is against the evidence on record. Such sentence is not proportionate to the crime committed by opposite party nos.2 and 3. They should have been convicted under section 304(I) I.P.C for a sentence of not less than life imprisonment. Respondent nos.2 and 3 along with acquitted co-accused committed the custodial murder of deceased, Balwant, in police custody by causing him 31 injuries. The trial court has committed apparent legal error in not convicting respondent nos.2 and 3 under Section 302 I.P.C. Learned counsel for respondent nos.2 and 3 have vehemently opposed the submissions and have submitted that charges under Sections 302 I.P.C were not framed by the trial court against respondent nos. 2 and 3. Charge under section 304 I.P.C was only framed. Respondent nos.2 and 3 have been rightly convicted under section 304 I.P.C. Therefore, this appeal under section 372 Cr.P.C is not maintainable since as per Section 372 Cr.P.C appeal is not maintainable questioning conviction of respondent nos.2 and 3 for lesser sentence under Section 304 I.P.C as held by the Apex Court in the case of Parv inder Kansal Vs. The State of NCT of Delhi and anothers, passed in Criminal Appeal No.555 of 2020, arising out of S.L.P(Crl.) NO.3928 of 2020. The relevant paragraph 9 is quoted hereinbelow : " 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.PC. The proviso is inserted to Section 372, Cr.PC 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 Crl.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.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377, Cr.PC but similarly no appeal can be maintained by victim under Section 372, Cr.PC 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. Crl.A.@S.L.P.(Crl.)No.3928 of 2020." After hearing rival submissions of the parties, we find that argument of learned Senior Advocate for the appellant regarding failure of the trial court to convict respondent nos.2 and 3 for committing the offence of murder is without any basis. The trial court did not framed any charge or alternative charge under Section 302 I.P.C during the trial. So far as the argument regarding awarding of lesser sentence by the trial court under Section 304 I.P.C is concerned, the same cannot be challenged under Section 372 Cr.P.C as held by Apex Court in the judgement aforesaid. The remedy for the same lies by way of preferring a revision before this court. In view of the above and legal position, this appeal is dismissed. It is open for the appellant to avail the remedy of revision provided under law, if so advised. Order Date :- 10.1.2025 SS Digitally signed by :- SURENDER SINGH NARANG High Court of Judicature at Allahabad