JUDGMENT :

1. Criminal Appeal no.1208 of 2006 is by original accused nos.1 and 2, while Criminal Appeal no.1216 of 2006 is by original accused nos.3 and 4, challenging the judgment and order of conviction and sentence dated 19.6.2006 passed by the learned Additional Sessions Judge, Valsad in Sessions Case no.75 of 2003.

1.1 The accused came to be convicted under Section 325 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for short), and were sentenced to undergo three years rigorous imprisonment with fine of Rs.2,500/- and in default of payment of fine, to further undergo simple imprisonment of three months, while were acquitted under Sections 143, 147, 148, 149, 323, 504, 506(2) and 307 of the IPC.

2. Criminal Revision Application no.561 of 2006 is filed by the original complainant under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) praying for enhancing the sentence imposed by the Trial Court and to convict the accused for the offences to which accused came to be acquitted.

2.1 Learned advocate Mr Vijay Patel submitted that the Prayer has been made to enhance the sentence imposed by the trial court to maximum punishment for the offence under section 325, read with section 34 of IPC and for convicting the accused for the offence under section 143, 147, 148, 149, 323, 504, 506(2), and 307 of IPC.

2.2 It was contended by Advocate Mr. Patel that in acquitting the accused the sessions court has not considered the clear evidence of head injury which was proved beyond reasonable doubt. The head injury was grievous which discloses the intention of the assailants and that the defence side has not been able to bring evidence to create doubt, Advocate, Mr Patel stated that the complainant had received fracture injuries on fingers and several injuries on other parts of the body, he was operated. While making efforts to save his head, received injury on hands, but could survive thus submitted that the cumulative effect of the evidence indicates intention of the accused for committing murder of the petitioner. Advocate Mr Patel stated that the conclusion of the learned Judge becomes erroneous on record, to observe that if the assailants wanted to commit murder they could have driven the vehicle on the complainant. Mr Patel stated that the punishment recorded is lesser in comparison to the grievousness of the matter and submitted that the learned Judge has erred in acquitting the accused under section 307 of IPC and ought to have punished under section 326 of IPC with the maximum sentence.

2.3 Section 372 of the CrPC gives right to the victim to prefer an appeal against an order passed by a court acquitting an accused or convicting for lesser offence or imposing inadequate compensation. The proviso to Section 372 came into force wide effect from 31.12.2009. the present Revision Application is of year 2006. Section 372 of CrPC has not been given a retrospective effect. Here the prayer is made for enhancing the sentence and convicting the accused under section 326 of IPC with the maximum sentence.

2.4 Having noticed the provision under section 401 of CrPC of the High Court’s Revisional power, Sub-section (3) clearly restricts the High Court to convert the finding of an acquittal into one of conviction. Thus, the prayer of convicting the accused under Section 307 or Section 326 of the IPC would not be maintainable in the revisional jurisdiction.

2.5 The scope of Section 397 of CrPC is to set right a patent defect or an error of jurisdiction or law or perversity which has crept in the proceeding. The prayer is also made by the complainant regarding the insufficiency of the sentence. In the case of Gopal Singh vs State of Uttarakhand reported in (2013) 7 SCC 545, the Supreme Court was examining the question of sentencing. In para 18 and 19 it was held as under:-

“18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermo