IMPORTANT POINTS
(1) No appeal can be maintained by victim under Section 372, Cr.P.C. on the ground of inadequate sentence. State Government can prefer appeal for inadequate sentence under Section 377, Cr.P.C.
(2) Remedy of appeal is creature of Statute.

ORDER :

1. Leave granted.

2. This criminal appeal is filed by the appellant in Criminal Appeal No. 1284 of 2019, aggrieved by the order dated 27th November 2019 passed by the High Court of Delhi at New Delhi. By the aforesaid order, High Court has dismissed the appeal filed by the appellant herein under Section 372 of the Code of Criminal Procedure seeking enhancement of sentence imposed in Sessions Case No.742 of 2007 by the Special Judge (NDPS), North District, Rohini District Courts, Delhi vide order dated 17.08.2019.

3. The appellant herein was the complainant in FIR No.742 of 2007 registered on 15.10.2007 for the offence under Section 364A read with Section 34, IPC and the second respondent herein was the accused. After investigation of the crime, chargesheet dated 11.01.2008 was filed against the second respondent-accused under Sections 364A/302/201, IPC. On committal, case was referred to the court of Special Judge (NDPS), North District, Rohini Courts, Delhi and the second respondent was tried in Sessions Case No.58259 of 2016. By judgment dated 30th July 2019 in the above said Sessions Case No.742 of 2007 the second respondent was convicted for offence punishable under Sections 364A, 302 and 201, IPC. By subsequent order dated 17th August 2019 he was sentenced for offence under Sections 302, 364A and 201, IPC as under :

"14. In view of above observations this Court directs that:

(A) The convict is sentenced with imprisonment for life u/s 302 IPC and is further directed to pay a fine of Rs.1 lakh. In default of payment of fine, he is directed to undergo SI for five years.

(B) The convict is sentenced with imprisonment for life u/s 364A IPC and is further directed to pay a fine of Rs.1 lakh. In default of payment of fine, he is directed to undergo SI for five years.

(C) The convict is sentenced with rigorous imprisonment for seven years for the offence punishable u/s 201 IPC and is further directed to pay a fine of Rs.50,000/-. In default of payment of fine, he is directed to undergo SI for one year.

All the sentences shall run concurrently. Benefit of Section 428 Cr.PC shall be given to the convict qua the offence u/s 201 IPC."

4. The complainant, who is the father of the deceased boy, has filed appeal challenging the order of sentence dated 17th August 2019 passed by ASJ/Special Judge (NDPS), North District, Rohini Courts, Delhi in Sessions Case No.58259 of 2016 seeking enhancement of sentence to death penalty. In the appeal filed before the High Court under Section 372, Code of Criminal Procedure, 1973 (for short, 'Cr.PC'), it was his case that the sentence of life imprisonment imposed on the second respondent-convict is inadequate and needs to be enhanced to death penalty. Vide impugned judgment dated 27th November 2019 the High Court of Delhi has dismissed the appeal as not maintainable.

5. We have heard Sri Ashwani Bhardwaj, learned advocate appearing for the appellant and Sri Chirag M. Shroff, learned counsel appearing for the State of NCT of Delhi.

6. It is contended by learned counsel for the appellant, though the respondent no.2 had committed murder of an innocent child, the Sessions Court, instead to award punishment of death penalty, has awarded only imprisonment for life. It is contended that in view of proviso to Section 372, Cr.PC which gives right to prefer appeal to the victim, when the accused is convicted for lesser offence, there is no reason to restrict the scope of appeal only for a lesser offence but not for lesser sentence. It is submitted that on 15.10.2007 when the son of the appellant was kidnapped and demand of ransom was made which was also paid to the second respondent but after kidnap his son was brutally murdered. As such, it is submitted that it is a fit case for enhancement of sentence from life imprisonment to death penalty, for the second respondent. The learned counsel has submitted that the High Court has not considered the provision under Section 372, Cr.PC properly vis-a-vis the judgments re