Supreme Court of India
Khem Singh (Dead Through Lrs) vs State Of Uttaranchal (Now State Of … on 22 August, 2025
2025 INSC 1024
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1330-1332 OF 2017
KHEM SINGH (D) THROUGH LRs ...APPELLANT(S)
VERSUS
STATE OF UTTARANCHAL
(NOW STATE OF UTTARAKHAND)
& ANOTHER ETC. …RESPONDENTS
JUDGMENT
NAGARATHNA, J.
Being aggrieved by the common judgment dated 12.09.2012
passed in Criminal Appeal Nos.254 of 2004, 258 of 2004, 259 of
2004 by the High Court of Uttarakhand at Nainital, the original
appellant Khem Singh S/o Tarachand preferred these Special
Leave Petitions before this Court. By order dated 06.07.2017, leave
was granted by this Court and consequently, the Special Leave
Signature Not Verified
Digitally signed by
BORRA LM VALLI
Date: 2025.08.22
17:17:06 IST
Petitions have been converted to these Criminal Appeals.
Reason:
Page 1 of 58
Facts in Brief:
2. For ease of reference, the private respondents herein, namely,
i) Anil @ Neelu; ii) Pramod; and iii) Ashok, who were accused Nos.
4, 3 and 2 respectively in S.T. No.133/1993 in the Court of Addl.
District & Sessions Judge, Haridwar (henceforth “Sessions Court”),
are henceforth referred to as ‘respondents-accused’. The other
accused in S.T. No.133/1993, who were acquitted by the Sessions
Court, are referred to as ‘other accused’.
2.1 Briefly stated, the facts of the case according to the
prosecution are that there was a long-standing previous enmity
between the respondents-accused and other accused and the
original informant and others. On 08.12.1992, there was some
heated exchange between them. The next day, i.e. on 09.12.1992,
at about 08.00 A.M., informant Tara Chand (P.W.1), his brother
Virendra Singh, and P.W.1’s son Khem Singh (P.W.3) were attacked
by the respondents-accused and the other accused using guns,
sharp weapons, and bricks. As a result, Virendra Singh passed
away, and P.W.1 and P.W.3 sustained injuries. On the arrival of
villagers, all the accused managed to escape.
Page 2 of 58
2.2 The specific roles attributed to the respondents-accused are
that: i) Accused No.2, Ashok, fired on Virendra Singh using a gun;
ii) Accused No.3, Pramod, fired on P.W.3 using a gun; and iii)
Accused No.4, Anil @ Neelu, fired on Smt. Mithilesh, wife of P.W.3.
On a complaint given by P.W.1 Tara Chand, Case Crime No.547/92
dated 09.12.1992 was registered at P.S. Jwalapur, District
Haridwar against all the accused persons. The respondents-
accused were charged under Sections 148, 452, 302, 307, 149,
326, and 149 of the Indian Penal Code, 1860 (hereinafter, “IPC”).
2.3 After examining all the material witnesses and after hearing
both the parties, the Sessions Court, vide judgment and order
dated 02.08.2004/04.08.2004 acquitted the other accused on the
ground that the role assigned to them was not fully proved.
However, the Sessions Court found that the case against the
respondents-accused was fully proved beyond all reasonable
doubt. The sentence passed against the respondents-accused is as
follows:
Page 3 of 58
Name of the IPC Section Punishment granted [R.I. – Punishment in
Accused found guilty Rigorous Imprisonment; S.I. – default of fine
of Simple Imprisonment]S.302 R.I. for life + Rs.1000 fine
One month S.I. for
Ashok (A2) Ss.307/34 Five years R.I. + Rs. 1000 fine
each offence
S.452 One month R.I. + Rs.1000 fine
Ss.302/34 R.I. for life + Rs.1000 fine
Pramod (A3) One month S.I. for
& Anil @ S.307 Five years R.I. + Rs. 1000 fine
each offence
Neelu (A4) S.452 One month R.I. + Rs.1000 fine2.4 Being aggrieved by the judgment and order of the Sessions
Court, the respondents-accused preferred Criminal Appeal
Nos.254, 258 and 259 of 2004 before the High Court of
Uttarakhand at Nainital. The High Court, vide common impugned
judgment and order dated 12.09.2012, allowed the criminal
appeals filed by the respondents-accused.
2.5 The second respondent in Criminal Appeal No.1330 of 2017
was appellant/Accused No.4-Anil @ Neelu in Criminal Appeal
No.254 of 2004 before the High Court. The second respondent in
Criminal Appeal No.1331 of 2017 was appellant/accused No.3-
Pramod in Criminal Appeal No.258 of 2004 before the High Court.
The second respondent in Criminal Appeal No.1332 of 2017 was
appellant/accused No.2-Kali Ram in Criminal No.259 of 2004
before the High Court. For ease of reference, henceforth the second
Page 4 of 58
respondent in these appeals, who are accused Nos.4, 3 and 2
respectively, are referred to as accused in these appeals. The
State’s Appeal No.47 of 2008 was also disposed of by the High
Court along with the aforesaid appeals.
INTERLOCUTORY APPLICATION NOS.11322/2025,
11329/2025 & 131604 OF 2025 IN CRIMINAL APPEAL
NOS.1330-1332 OF 2017:
2.6 During the pendency of these appeals, son of original
appellant-Khem Singh (since deceased) – Raj Kumar filed an
application seeking setting aside of the abatement and for
substitution. Consequently, IA No.11322/2025 (application for
seeking setting aside of the abatement), IA No.11329/2025
(application seeking condonation of delay in filing application for
setting aside of abatement), and IA No.131604/2024 (application
for substitution) have been preferred.
Submissions:
3. Learned counsel for the applicant contended that having
regard to the proviso to Section 372 of the Code of Criminal
Procedure, 1973 (for short, “CrPC”), the substitution applications
may be allowed by condoning the delay in filing the said
Page 5 of 58
application. He further contended that the original appellant was
aggrieved by the acquittal of accused Nos.4, 3 and 2 respectively
by the High Court when, in fact, they had been convicted and
sentenced to life imprisonment and fine by the Sessions Court and
hence, the original appellant herein preferred these appeals.
3.1 It was also brought to our notice that these appeals assume
significance due to the fact that the State has not preferred any
appeal as against the judgment and order of acquittal passed by
the High Court by way of the impugned judgment and order. In the
circumstances, in view of the proviso to Section 372 CrPC as well
as the definition of ‘Victim’ laid down under Section 2(wa) of CrPC
as well as the principles adumbrated by the Constitution Bench of
this Court in PSR Sadhanantham vs. Arunachalam (1980) 3
SCC 141 (“PSR Sadhanantham”), the substitution applications
may be allowed; the abatement may be set aside; the delay in filing
the applications for seeking setting aside of the abatement may be
condoned and the applicant may be substituted in place of the
original appellant and the appeals may be heard on merits.
Page 6 of 58
3.2 In this regard, learned counsel for the applicant also
submitted that the proviso to Section 372 CrPC which has the
expression ‘the right to prefer an appeal’ would also include ‘the
right to prosecute an appeal’. In the circumstances, the right to
prosecute an appeal given to a legal heir of the victim must also be
construed to extend to a case where the legal heir of the original
appellant, who was also an injured victim in the instant case must
be brought on record. Moreover, the applicant is also an injured
victim. It was contended that the delay in filing the applications for
setting aside of the abatement and in filing the application for
substitution was owing to the long pendency of these appeals
before this Court as well as due to bona fide reasons. In this regard,
learned counsel for the applicant submitted that the reason as to
why the applications have to be allowed in these cases is also owing
to the fact that the High Court, by the impugned judgment, which
is a cryptic one as is evident by the manner in which the same has
been written, has allowed the appeals filed by the accused and
consequently acquitted them. In the circumstances, the
applications may be allowed and in the place of the original
appellant, who is since deceased, the applicant, his son, who is
Page 7 of 58
also an injured victim may be substituted so as to prosecute these
appeals.
3.3 Per contra, learned senior counsel and learned counsel for
the respondent(s) vehemently objected to the applications being
allowed. In this regard, they drew our attention to Section 394
CrPC and contended that although the said provision refers to an
appeal filed against a conviction, sub-section (1) of Section 394
CrPC deals with abatement of an appeal on the death of an accused
when the appeal was filed under Sections 377 or 378 CrPC. The
expression, “every other appeal under this Chapter” in sub-section
(2) of Section 394 CrPC is significant inasmuch as the said sub-
section lays down that apart from an appeal filed under Section
377 or Section 378 CrPC, every other appeal under the Chapter
shall finally abate on the death of the appellant; that the CrPC has
not defined the expression “appellant”, and it could be either a
victim or a complainant, who is the appellant, or it could also be
the convict or the accused who is an appellant; that the proviso
expressly deals with a case where the accused or the convict is the
appellant and if he dies during the pendency of the appeal, the legal
heirs of such an accused can be brought on record to continue the
Page 8 of 58
appeal and they can seek an acquittal if the appeal had been filed
under Section 377 or Section 378 CrPC or on any other ground.
However, the said proviso does not extend to a case where an
appeal is filed by a victim or a legal heir of a victim under the
proviso to Section 372 CrPC. It was further submitted that the
expression ‘near relative’ in the proviso to sub-section (2) of Section
394 CrPC is of a wider connotation to include a parent, spouse,
lineal descendant, brother or sister, but such an expression cannot
be applied in the case of substitution of an original victim who had
preferred an appeal on his demise during the pendency of his
appeal.
3.4 In the above circumstances, they contended that the
applications may be dismissed. Consequently, the appeal may also
be dismissed as having abated since the original appellant has died
during the pendency of the appeals before this Court.
Points for Consideration:
4. Having heard learned counsel for the parties, the following
points arise for our consideration:
Page 9 of 58
(a) Whether the applicant is entitled to be substituted
in place of the original appellant so as to continue to
prosecute these appeals?
(b) What order?
5. We have considered the arguments advanced at the bar in
light of the provisions of the CrPC. It is noted that while Sections
377 and 378 CrPC were on the statute book even at the time of the
enforcement of the CrPC, on the basis of the reports of the Law
Commission, an amendment was made to Section 372 CrPC by
insertion of the proviso thereto with effect from 31.12.2009.
Consequently, the definition of ‘victim’ was also inserted to Section
2(wa) of CrPC which reads as under:
“2(wa)-“victim” means a person who has suffered any loss
or injury caused by reason of the act or omission for which
the accused person has been charged and the expression
“victim” includes his or her guardian or legal heir;”5.1 Simultaneously, proviso to Section 372 CrPC was inserted
which reads 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.
Page 10 of 58
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.”5.2 A conjoint reading of the proviso to Section 372 CrPC in light
of the definition in Section 2(wa) of CrPC, would lead to the
conclusion that the expression ‘victim’ is not restricted to any
person who has suffered any loss or injury caused by reason of the
act or omission for which the accused person has been charged. It
also includes a person who is a guardian or legal heir of a victim
as defined above.
5.3 In the instant cases, the legal heir of the injured victim and
himself being an injured victim had preferred these appeals as he
had every right to do so particularly having regard to amendment
made to the CrPC with effect from 31.12.2009 by insertion of the
proviso to Section 372 CrPC. However, the contentious issue in
these cases is, whether a legal heir of a legal heir, who had
preferred these appeals, could also continue to prosecute these
appeals as during the pendency of these appeals the original
Page 11 of 58
appellant has died. We are considering this issue irrespective of thefact that the applicant who seeks substitution as an appellant in
these appeals is himself an injured victim in the incident and in
his own right could have filed appeals against the acquittal of the
accused. However, he has filed the applications for substitution in
place of his father as a legal heir of an injured victim, the original
appellant in these appeals.
5.4 We have considered the arguments advanced at the bar in
light of the amendment made to Section 372 CrPC and also the
insertion of the expression ‘Victim’ by way of a definition clause to
Section 2 of the Act extracted above and generally in light of Article
14 of the Constitution including the right to equal opportunity
before law and right to access to justice.
6. In Mallikarjun Kodagali (dead) represented through
Legal representatives vs. State of Karnataka, (2019) 2 SCC
752 (“Mallikarjun Kodagali”), there is a reference to four reports
that have dealt with the rights of victims of crime and the remedies
available to them. The same may be briefly discussed as under:
Page 12 of 58
i. The first report is the 154th Report of the Law Commission of
India of August, 1996. The said Report touched upon, inter
alia, compensation to be paid to the victim of crime, their
rehabilitation, etc.
ii. In March 2003, Justice Malimath Committee submitted its
report on ‘Reforms of Criminal Justice System’. Paragraph 2.21
in the Chapter on Adversarial Rights under the sub-heading of
‘Victims Right to Appeal’, states as under:
“2.21. The victim or his representative who is a party
to the trial should have a right to prefer an appeal
against any adverse order passed by the trial court. In
such an appeal he could challenge the acquittal, or
conviction for a lesser offence or inadequacy of
sentence, or in regard to compensation payable to the
victim. The appellate court should have the same
powers as the trial court in regard to assessment of
evidence and awarding of sentence.”
There is also discussion on other rights of victims under
the Chapter titled, ‘Justice to Victims’. In paragraph 6.(14)(v),
Justice Malimath Committee made the following
recommendations:
“6. (14)(v) The victim shall have a right to prefer an
appeal against any adverse order passed by the court
acquitting the accused, convicting for a lesser offence,Page 13 of 58
imposing inadequate sentence, or granting inadequate
compensation. Such appeal shall lie to the court to
which an appeal ordinarily lies against the order of
conviction of such court.”
iii. In July 2007, a Report of the Committee on the Draft National
Policy on Criminal Justice was submitted which is also known
as ‘Professor Madhava Menon Committee Report’.
Observations with regard to providing victim-oriented criminal
justice and a balance between the constitutional rights of an
accused and victim of crime have been discussed. One of the
suggestions made is that the victim must be impleaded in the
trial proceedings so that such a party would have a right to file
an appeal against an adverse order, particularly an order of
acquittal.
iv. In the 221st Report of the Law Commission of India submitted
in April, 2009, it has been noted that as the law then stood, an
aggrieved person could not file an appeal against an order of
acquittal. However, a revision petition could be filed. Noting
that the powers of a revisional court are limited and the
process involved is cumbersome, a recommendation was made
by the Law Commission that as against an order of acquittal
passed by a Magistrate, a victim should be entitled to file an
Page 14 of 58
appeal before the revisional court. Similarly, in complaint
cases, the appeal should be provided to the Sessions Court
instead of the High Court. However, it was suggested that the
aggrieved person or complainant should have the right to
prefer an appeal with the leave of the appellate court.
v. It was further recommended that Section 378 CrPC requires
an amendment with a view to enable filing of appeals in
complaint cases also in the Sessions Court, of course, subject
to the grant of special leave by it. Limited scope of powers of a
revisional court under Section 401 CrPC was taken note of and
it was suggested that there is a need to amend the CrPC.
6.1 Taking note of the aforesaid reports, an amendment was
brought to Section 372 CrPC with effect from 31.12.2009 by adding
a proviso thereto.
6.2 The decisions of the Full Benches of the High Courts in the
matter of interpretation of the proviso to Section 372 CrPC are
highlighted by this Court in the case of Mallikarjun Kodagali.
There are also Division Bench decisions of the High Courts taking
different views.
Page 15 of 58
Mallikarjun Kodagali:
6.3 This Court in Mallikarjun Kodagali, speaking through
Lokur, J. for himself and Nazeer, J. referred to the Declaration of
the Basic Principles of Justice for Victims of Crime and Abuse of
Power adopted by the General Assembly of the United Nations in
the 96th Plenary Session on 29.11.1985. It was observed in
paragraphs 74, 75 & 76 as under:
“74. Putting the Declaration to practice, it is quite obvious
that the victim of an offence is entitled to a variety of rights.
Access to mechanisms of justice and redress through
formal procedures as provided for in national legislation,
must include the right to file an appeal against an order of
acquittal in a case such as the one that we are presently
concerned with. Considered in this light, there is no doubt
that the proviso to Section 372 CrPC must be given life, to
benefit the victim of an offence.
75. Under the circumstances, on the basis of the plain
language of the law and also as interpreted by several High
Courts and in addition the resolution of the General
Assembly of the United Nations, it is quite clear to us that
a victim as defined in Section 2(wa) CrPC would be entitled
to file an appeal before the Court to which an appeal
ordinarily lies against the order of conviction. …
76. … The language of the proviso to Section 372 CrPC is
quite clear, particularly when it is contrasted with the
language of Section 378(4) CrPC. The text of this provision
is quite clear and it is confined to an order of acquittal
passed in a case instituted upon a complaint. The word
“complaint” has been defined in Section 2(d) CrPC and
refers to any allegation made orally or in writing to a
Magistrate. This has nothing to do with the lodging or the
registration of an FIR, and therefore it is not at allPage 16 of 58
necessary to consider the effect of a victim being the
complainant as far as the proviso to Section 372 CrPC is
concerned.”6.4 Consequently, the appeals in the said case were allowed and
the judgment and order of the High Court was set aside and the
matter was remanded to the High Court to hear and decide the
appeal against the judgment and order of acquittal once again.
Analysis of the Relevant Provisions of CrPC:
7. Section 2 CrPC is the definition clause under which relevant
definitions are extracted as under:
“2. Definitions.—In this Code, unless the context
otherwise requires,—
xxx
(d) “complaint” means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.
Explanation.—A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall
be deemed to be the complainant;
xxx
(n) “offence” means any act or omission made punishable
by any law for the time being in force and includes any act
in respect of which a complaint may be made under
section 20 of the Cattle Trespass Act, 1871 (1 of 1871);
Page 17 of 58
xxx
24. Public Prosecutors.-
xxx
(8) The Central Government or the State Government may
appoint, for the purposes of any case or class of cases, a
person who has been in practice as an advocate for not
less than ten years as a Special Public Prosecutor:
Provided that the Court may permit the victim to engage
an advocate of his choice to assist the prosecution under
this sub-section.
CHAPTER XXIX
APPEALS
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 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.
xxx
377. Appeal by the State Government against
sentence.—(1) Save as otherwise provided in sub-section
(2), the State Government may, in any case of conviction
on a trial held by any Court other than a High Court, direct
the Public Prosecutor to present an appeal against the
sentence on the ground of its inadequacy—
(a) to the Court of Session, if the sentence is passed by
the Magistrate; and
(b) to the High Court, if the sentence is passed by any
other Court.
Page 18 of 58
(2) If such conviction is in a case in which the offence has
been investigated by the Delhi Special Police
Establishment, constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other
agency empowered to make investigation into an offence
under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to
present an appeal against the sentence on the ground of
its inadequacy—
(a) to the Court of Session, if the sentence is passed by
the Magistrate; and
(b) to the High Court, if the sentence is passed by any
other Court.
(3) When an appeal has been filed against the sentence on
the ground of its inadequacy, the Court of Session or, as
the case may be, the High Court shall not enhance the
sentence except after giving to the accused a reasonable
opportunity of showing cause against such enhancement
and while showing cause, the accused may plead for his
acquittal or for the reduction of the sentence.
(4) When an appeal has been filed against a sentence
passed under section 376, section 376A, section 376AB,
section 376B, section 376C, section 376D, section 376DA,
section 376DB or section 376E of the Indian Penal Code
(45 of 1860), the appeal shall be disposed of within a period
of six months from the date of filing of such appeal.
378. Appeal in case of acquittal.—(1) Save as otherwise
provided in sub-section (2), and subject to the provisions
of sub-sections (3) and (5),—
(a) the District Magistrate may, in any case, direct the
Public Prosecutor to present an appeal to the Court of
Session from an order of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable
offence;
(b) the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High
Page 19 of 58
Court from an original or appellate order of acquittal
passed by any Court other than a High Court not being
an order under clause (a) or an order of acquittal
passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in
which the offence has been investigated by the Delhi
Special Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of 1946), or by
any other agency empowered to make investigation into an
offence under any Central Act other than this Code, the
Central Government may, subject to the provisions of sub-
section (3), also direct the Public Prosecutor to present an
appeal—
(a) to the Court of Session, from an order of acquittal
passed by a Magistrate in respect of a cognizable and
non-bailable offence;
(b) to the High Court from an original or appellate order
of an acquittal passed by any Court other than a High
Court not being an order under clause (a) or an order
of acquittal passed by the Court of Session in revision.
(3) No appeal to the High Court under sub-section (1) or
sub-section (2) shall be entertained except with the leave
of the High Court.
(4) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf,
grants special leave to appeal from the order of acquittal,
the complainant may present such an appeal to the High
Court.
(5) No application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall be
entertained by the High Court after the expiry of six
months, where the complainant is a public servant, and
sixty days in every other case, computed from the date of
that order of acquittal.
Page 20 of 58
(6) If, in any case, the application under sub-section (4) for
the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal
shall lie under sub-section (1) or under sub-section (2).
xxx
386. Powers of the Appellate Court.—After perusing
such record and hearing the appellant or his pleader, if he
appears, and the Public Prosecutor if he appears, and in
case of an appeal under section 377 or section 378, the
accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering,
dismiss the appeal, or may—
(a) in an appeal from an order or acquittal, reverse such
order and direct that further inquiry be made, or that
the accused be re-tried or committed for trial, as the
case may be, or find him guilty and pass sentence on
him according to law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be re-
tried by a Court of competent jurisdiction
subordinate to such Appellate Court or
committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent,
of the sentence, but not so as to enhance the
same—
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be re-
tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
Page 21 of 58
(iii) with or without altering the finding, alter the
nature or the extent, or, the nature and extent,
of the sentence, so as to enhance or reduce the
same;
(d) in an appeal from any other order, alter or reverse
such order;
(e) make any amendment or any consequential or
incidental order that may be just or proper:
Provided that the sentence shall not be enhanced
unless the accused has had an opportunity of showing
cause against such enhancement:
Provided further that the Appellate Court shall not
inflict greater punishment for the offence which in its
opinion the accused has committed, than might have
been inflicted for that offence by the Court passing the
order or sentence under appeal.
394. Abatement of appeals. (1) Every appeal under
Section 377 or Section 378 shall finally abate on the death
of the accused.
(2) Every other appeal under this Chapter (except an
appeal from a sentence of fine) shall finally abate on the
death of the appellant:
Provided that where the appeal is against a conviction
and sentence of death or of imprisonment, and the
appellant dies during the pendency of the appeal, any of
his near relatives may, within thirty days of the death of
the appellant, apply to the Appellate Court for leave to
continue the appeal; and if leave is granted, the appeal
shall not abate.
Explanation.- In this section, “near relative” means a
parent, spouse, lineal descendant, brother or sister.”Page 22 of 58
7.1 Chapter XXIX of the CrPC deals with appeals. The saidChapter delineates the statutory framework governing appeals.
Section 372 CrPC unequivocally declares that no appeal shall lie
from any judgment or order of a criminal court except as provided
for by the CrPC itself or by any other law for the time being in force.
In fact, Section 372 CrPC speaks of an embargo on the filing of an
appeal from any judgment or order of a criminal court except as
provided for by the CrPC or by any other law for the time being in
force. Section 372 CrPC is couched in a negative language and it
states that no appeal shall lie from any judgment or order of a
criminal court except as provided for by the CrPC or by any other
law for the time being in force. Section 372 CrPC is a preface to the
chapter on appeals which in substance states that an appeal can
be filed only in accordance with what has been stated in the
provisions to follow Section 372 CrPC. The proviso to Section 372
was introduced by the Code of Criminal Procedure (Amendment)
Act, 2008 (Act 5 of 2009), which came into effect from 31.12.2009.
By virtue of this amendment, a limited right of appeal has been
conferred upon the victim of an offence. On a reading of the proviso
to Section 372 CrPC, it is apparent that a victim shall have a right
Page 23 of 58
to prefer an appeal against: (i) any order passed by the court
acquitting the accused; or (ii) convicting for a lesser offence; or (iii)
imposing inadequate compensation. Such appeal shall lie to the
court to which an appeal ordinarily lies against the order of
conviction of such court. In fact, with effect from 31.12.2009 when
clause (wa) to Section 2 CrPC was inserted to the definition of
victim, proviso to Section 24 was also added which provides that
the Court may permit the victim to engage an advocate of his choice
to assist the prosecution under the said sub-section.
7.1.1 Further, with effect from 31.12.2009, Section 357A and
Section 357B were inserted to the CrPC in the form of victim
compensation scheme for providing compensation to the victim or
his dependants who have suffered loss or injury as a result of the
crime and who require rehabilitation. The compensation payable
by the State Government under Section 357A is in addition to the
payment of fine to the victim of offences under Section 326A,
Section 376AB, Section 376D, Section 376DA and Section 376DB
of the Indian Penal Code. Also, Section 357C states that all
hospitals, public or private, whether run by the Central
Government, the State Government, local bodies or any other
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person, shall immediately provide first-aid or medical treatment,
free of cost, to the victims of any offence covered under the
aforesaid Sections.
7.2 While Section 374 CrPC deals with appeals from convictions
with which we are not concerned in this case, what is of relevance
is Section 378 CrPC which, inter alia, deals with an appeal in case
of acquittal. The remedy of an appeal against an acquittal is
couched in certain conditions which are evident on a reading of
sub-sections (4) and (5) of Section 378 CrPC vis-à-vis an appeal
that could be filed by a complainant. However, the Parliament in
its wisdom amended Section 372 CrPC by adding a proviso thereto
by virtue of the Code of Criminal Procedure (Amendment) Act 2008
(5 of 2009), (with effect from 31.12.2009). It is hence necessary to
unravel the definition of victim in clause (wa) of Section 2 of the
CrPC which was also introduced along with proviso to Section 372
CrPC. A victim is defined to mean a person who has suffered any
loss or injury caused by reason of the act or omission for which the
accused person has been charged and the expression ‘victim’
includes his or her guardian or legal heir.
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7.3 The expression ‘injury’, as defined in Section 44 of the IPC
includes:
“Any harm whatever illegally caused to any person, in
body, mind, reputation or property.”7.3.1 Similarly, Black’s Law Dictionary defines injury to include
property damage, bodily harm, or violation of a legal right.
7.3.2 Additionally, the United Nations General Assembly’s
Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power (1985) provides a broad and inclusive definition of
victim. According to Article 1 of the Declaration:
“Victim means persons who, individually or collectively,
have suffered harm through acts or omissions which
involve physical or mental injury, emotional distress,
economic loss or substantial impairment of their
fundamental rights.”7.3.3 Further, Article 2 extends the definition of victim to include
immediate family members, dependents, or those who have
intervened to assist a victim in crisis.
7.4 On a reading of the definition of ‘victim’, it is clear that the
said expression is initially exhaustive and thereafter inclusive. The
expression ‘victim’ means a person who has suffered any loss or
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injury. The loss or injury could be either physical, mental, afinancial loss or injury. The expression ‘injury’ could also be
construed as a legal injury in a wider sense and not just a physical
or a mental injury. The loss or injury must be caused by reason of
an act or omission for which the accused person has been charged.
Thus, it can be both by a positive act or negatively by an omission
which is at the instance of the accused and for which such accused
has been charged. Further, the expression ‘victim’ also includes
his/her guardian or legal heir in the case of demise of the victim.
7.5 Thus, the expression ‘victim’ has been couched in a broad
manner so as to include a person who has suffered any loss or
injury. The expressions ‘loss’ or ‘injury’ themselves are of a very
broad import which expressions also enlarge the scope of the
expression ‘victim’. Further, the expression ‘victim’ includes not
only the person who has suffered any loss or injury caused by
reason of any act or omission for which the accused person has
been charged but also includes his or her guardian or legal heir
which means that the definition of victim is inclusive in nature.
7.6 Having regard to the insertion of the proviso to Section 372
CrPC, we find that in the case of a victim who seeks to file an
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appeal, he or she could proceed under the proviso to Section 372
CrPC in the circumstances mentioned therein and need not prefer
an appeal by invoking Section 378(4) CrPC which is in respect of
appeals to be filed by a complainant. It may be that the
complainant is a victim in certain cases and therefore, the victim
has the right to file an appeal under the proviso to Section 372
CrPC and need not proceed under Section 378(4) CrPC. However,
if the complainant is not a victim and intends to file an appeal, in
such a case a complainant would have to proceed under Section
378 CrPC which circumscribes the right to file an appeal by virtue
of the conditions which are stipulated under the said Section.
7.6.1 The word ‘victim’ is derived from the latin word “victima”
and originally contained the concept of sacrifice. In more
contemporary times, the term ‘victim’ has been expanded to imply
a victim of war, an accident, a scam, etc. As a scientific concept,
according to Criminologist B. Mendelsohn (1976), a victim may be
viewed as containing four fundamental criteria which are as
follows:
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• The nature of the determinant that causes the suffering. The
suffering may be physical, psychological, or both, depending
on the type of injurious act.
• The social character of the suffering. This suffering originates
in the victim’s and others’ reaction to the event.
• The nature of the social factor. The social implications of the
injurious act can have a greater impact, sometimes, than the
physical or psychological impact.
• The origin of the inferiority complex. This term, suggested by
Mendelsohn, manifests itself as a feeling of submission that
may be followed by a feeling of revolt. The victim generally
attributes his injury to the culpability of another person.
Victimology thus is a social-structural way of viewing crime,
the law, the criminal and the victim. Insofar as the injury is
concerned, apart from there being short time and long time
physical injuries, there could also be economic or financial loss
which are also injuries within the meaning and definition of victim
under clause (wa) of Section 2 CrPC. We could also place reliance
on Dr. Vimla vs. State (NCT of Delhi), AIR 1963 SC 1572,
wherein the expression “injury” has been explained to mean
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something other than economic loss i.e., deprivation of property,whether movable or immovable, or of money, and to include any
harm whatever caused to any person in body, mind, reputation or
such others. In short, it is a non-economic or non-pecuniary loss.
7.7 Further, while analysing the expression ‘victim’, it is noted
that it is with reference to an accused person who has been
charged. Under the CrPC, the expression ‘charge’ is defined under
clause (b) of Section 2 which reads as under:
“2. Definitions.—In this Code, unless the context
otherwise requires,—
xxx
(b) “charge” includes any head of charge when the charge
contains more heads than one;
7.7.1 Besides the omnibus meaning, the CrPC does not define
what a charge is. However, judicial pronouncements tell us that a
charge is actually a precise formulation of the specific accusation
made against a person who is entitled to know its nature at the
earliest stage. The charge is against a person in respect of an act
committed or omitted in violation of penal law forbidding or
commanding it. In other words, a charge is an accusation made
against a person in respect of offence alleged to have been
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committed by him, vide Esher Singh vs. State A.P., (2004) 11
SCC 585. In Birichh Bhuian vs. State of Bihar, AIR 1963 SC
1120, this Court observed that a charge is not a mere abstraction
but a concrete accusation against a person in respect of an offence
and that joinder of charges is permitted under certain
circumstances, whether joinder is against one person or different
persons.
7.7.2 In Advanced Law Lexicon by P Ramanatha Aiyar, 6th
Edition, Volume I, a charge is defined to mean an expression as
applied to a crime, sometimes used in a limited sense, intending
the accusation of a crime which precedes a formal trial; to mean a
person charged with an accusation of a crime. In a fuller and more
accurate sense, the expression charge includes the responsibility
for the crime. As a formal complaint, a charge signifies an
accusation, made in a legal manner of legal conduct, either of
omission or commission by the person charged. A person charged
with a crime means something more than being suspected or
accused of a crime by popular opinion or rumour and implies that
the offence has been alleged against the accused parties according
to the forms of law. The purpose of a charge is to tell an accused
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person as precisely and consciously as possible of the matter with
which he is charged with. Thus, the expression charge includes the
element of offence and also reference to the person who is alleged
to have committed the offence.
8. Section 378 CrPC is a specific provision dealing with appeals.
Sub-section (4) of Section 378 CrPC is pertinent. It states that if an
order of acquittal is passed in any case instituted upon a complaint
and the High Court, on an application made to it by the
complainant in that behalf, grants special leave to appeal from the
order of acquittal, the complainant may present such an appeal to
the High Court. The limitation period for seeking special leave to
appeal is six months where the complainant is a public servant and
sixty days in every other case, computed from the date of the order
of acquittal. Sub-Section (6) states that if, in any case, the
application under sub-section (4) for grant of special leave to appeal
from an order of acquittal is refused, no appeal from that order of
acquittal shall lie under sub-section (1) or under sub-section (2) of
Section 378 CrPC.
8.1 A reading of section 378 CrPC would clearly indicate that in
case the complainant intends to file an appeal against the order of
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acquittal, his right is circumscribed by certain conditions
precedent. When an appeal is to be preferred by a complainant,
the first question is, whether the complainant is also the victim or
only an informant. If the complainant is not a victim and the case
is instituted upon a complaint, then sub-section (4) requires that
the complainant must seek special leave to appeal from an order of
acquittal from the High Court. As noted under sub-section (6), if
the application under sub-section (4) for grant of special leave to
appeal from the order of acquittal is refused, no appeal from that
order of acquittal would lie, inter alia, under sub-section (1) of
Section 378 CrPC. However, if the complainant is also a victim, he
could proceed under the proviso to Section 372 CrPC, in which
case the rigour of sub-section (4) of Section 378 CrPC, which
mandates obtaining special leave to appeal, would not arise at all,
as he can prefer an appeal as a victim as a matter of right. Thus, if
a victim who is a complainant proceeds under Section 378 CrPC,
the necessity of seeking special leave to appeal would arise but if a
victim, whether he is a complainant or not, files an appeal in terms
of proviso to Section 372 CrPC, then the mandate of seeking special
leave to appeal would not arise.
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8.2 The reasons for the above distinction are not far to see and
can be elaborated as follows:
Firstly, the victim of a crime must have a right to prefer an
appeal which cannot be circumscribed by any condition precedent
except as provided under the provision of the CrPC.
Secondly, the right of a victim of a crime must be placed on
par with the right of an accused who has suffered a conviction,
who, as a matter of right can prefer an appeal under Section 374
CrPC. A person convicted of a crime has the right to prefer an
appeal under Section 374 CrPC as a matter of right and not being
subjected to any conditions. Similarly, a victim of a crime, whatever
be the nature of the crime, must have a right to prefer an appeal
as per the CrPC.
Thirdly, it is for this reason that the Parliament thought it fit
to insert the proviso to Section 372 CrPC without mandating any
condition precedent to be fulfilled by the victim of an offence, which
expression also includes the legal representatives of a deceased
victim who can prefer an appeal.
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On the contrary, as against an order of acquittal, the State,through the Public Prosecutor, can prefer an appeal even if the
complainant does not prefer such an appeal, though of course such
an appeal is with the leave of the court. However, it is not always
that the State or a complainant would prefer an appeal. But when
it comes to a victim’s right to prefer an appeal, the insistence on
seeking special leave to appeal from the High Court under Section
378(4) CrPC would be contrary to what has been intended by the
Parliament by insertion of the proviso to Section 372 CrPC.
Fourthly, the Parliament has not amended Section 378 CrPC
which deals with appeals against acquittal to circumscribe the
victim’s right to prefer an appeal just as it has with regard to a
complainant or the State filing an appeal. On the other hand, the
Parliament has inserted the proviso to Section 372 CrPC so as to
envisage a superior right for the victim of an offence to prefer an
appeal on the grounds mentioned therein as compared to a
complainant.
9. The right to prefer an appeal is no doubt a statutory right and
such a right in an accused against a conviction is not merely a
statutory right but can also be construed to be a fundamental right
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under Articles 14 and 21 of the Constitution. If that is so, then the
right of a victim of an offence to prefer an appeal cannot be equated
with the right of the State or the complainant to prefer an appeal
unless the victim is also the complainant. Hence, the statutory
rigours for filing of an appeal by the State or by a complainant
against an order of acquittal cannot be read into the proviso to
Section 372 CrPC so as to restrict the right of a victim to file an
appeal on the grounds mentioned therein, when none exists.
9.1 As already noted, the proviso to Section 372 CrPC was
inserted in the statute book only with effect from 31.12.2009. The
object and reason for such insertion must be realised and must be
given its full effect to by a court. In view of the aforesaid discussion,
we hold that the victim of an offence has the right to prefer an
appeal under the proviso to Section 372 CrPC, irrespective of
whether he is a complainant or not. Even if the victim of an offence
is a complainant, he can still proceed under the proviso to Section
372 CrPC and need not advert to sub-section (4) of Section 378
CrPC.
9.2 We find that on the recommendation made by the Law
Commission, the Parliament inserted the proviso in order to give
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an independent right to a victim to prefer an appeal under the
circumstances mentioned under the proviso. This is de hors an
appeal that could be filed by the complainant under Section 378(4)
CrPC. The object and purpose of giving an independent right to a
victim to prefer an appeal is particularly in a case where a
complainant may not file an appeal and the State also would decide
not to prefer an appeal as against the acquittal or award of a lesser
sentence to an accused. If we bear in mind the object with which
the amendment has been made by the Parliament, we find that the
victim has every right to prefer an appeal as against a conviction
for a lesser offence or for imposing inadequate compensation or
even in the case of an acquittal of an accused as stated in the
proviso to Section 372 CrPC. There is no doubt that in the instant
cases they are cases of acquittal of the accused by the High Court.
9.3 The expression ‘right to prefer an appeal’ in the proviso to
Section 372 CrPC cannot be limited to mean ‘only the filing of an
appeal’. Mere filing of an appeal in the absence of prosecution of
an appeal is of no avail. It does not fulfill the object with which the
proviso has been added to Section 372 CrPC. Therefore, we
interpret the expression ‘the right to prefer an appeal’ to also
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include the ‘right to prosecute an appeal’. Then, if during the
pendency of an appeal, the original appellant dies, can it be said
that his legal heir cannot be substituted so as to prosecute the
appeal further? Any curtailing of the legal right to prosecute an
appeal on the death of an original appellant by his legal heir would
make the proviso to Section 372 CrPC wholly redundant and in fact
may result in a situation which is contrary to the entire object with
which the Parliament had inserted the proviso to Section 372 CrPC.
In this context, it is also relevant to note that the Parliament has
been conscious to expand the definition of the word ‘victim’ to not
only include the victim himself who had suffered the loss or injury
but also to include his legal heir. When a legal heir, who is not a
complainant or an injured victim, can prefer an appeal then why
not his legal heir on the death of the legal heir who had preferred
the appeal be permitted to prosecute the appeal? We see no reason
to curtail the right of a legal heir, who had preferred the original
appeal, to be denied the right to prosecute the appeal. In the
instant cases, the applicant, who is seeking substitution, is the
legal heir of the victim who had preferred the appeal before this
Court and is also an injured victim.
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Relevant Judicial Dicta:
10. A Constitution Bench of this Court in PSR Sadhanantham,
speaking through Krishna Iyer, J., observed that in a murder case,
when an appeal against acquittal was not filed by the State but by
a brother of the deceased, a private citizen, who is neither a
complainant nor the first informant, could invoke the special power
under Article 136 of the Constitution for leave to appeal against an
acquittal, the same would not violate Article 21 of the Constitution.
The facts of the said case were that the petitioner therein
was acquitted of a murder charge by the High Court but the
brother of the deceased — not the State nor even the first informant
— moved this Court under Article 136, got leave and had his appeal
heard which resulted in the petitioner (accused) being convicted
and sentenced to life term under Section 302 IPC. A writ petition
was filed by the accused challenging the locus standi of the brother
of the deceased in moving this Court under Article 136 of the
Constitution.
10.1 It was observed that Article 136 of the Constitution is of
composite structure wherein power-cum-procedure is in-built
which vests power in this Court to entertain a petition and
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prescribes a mode of hearing so characteristic of the Court process.
When a motion is made for leave to appeal against an acquittal,
this Court has to appreciate the gravity of the peril to personal
liberty involved in that proceeding. The Court will also pay
attention to the person who seeks such leave from the Court, his
motive and his locus standi and the weighty factors which
persuade the Court to grant special leave. The Court may not, save
in special situations, grant leave to one who is not eo nomine a
party on the record.
10.1.1 This Court observed that the strictest vigilance over
abuse of the process of the Court is necessary, as ordinarily
meddlesome bystanders should not be granted a “visa”, but access
to justice to every bona fide seeker is a democratic dimension of
remedial jurisprudence. It was further observed that while the
criminal law should not be used as a weapon in personal vendettas
between private individuals, in the absence of an independent
prosecution authority easily accessible to every citizen, a wider
connotation of the expression “standing” is necessary for Article
136 to further its mission.
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10.1.2 Pathak, J. (as he then was) writing a separate judgment
for himself and Koshal, J. considered the question whether a
brother of a deceased person, who had been murdered, possessed
the right to petition under Article 136 of the Constitution for special
leave to appeal against an acquittal of the accused. It was observed
that this question touched directly on the nature of the crime and
of a criminal proceeding. When entertaining a petition for special
leave to appeal by a private party against an order of acquittal,
certain factors to be borne in mind were also enumerated. It was
opined that the judicial process under Article 136 ought not to be
invoked for the satisfaction of private revenge or persona vendetta.
Nor can it be permitted as an instrument of coercion where a civil
action would lie. In every case, this Court is bound to consider what
is the interest which brings the petitioner to this Court and
whether the interest of the public community will benefit by the
grant of special leave. This Court should closely scrutinise the
motives and urges of those who seek to employ its process against
the life or liberty of another. The Court should entertain a special
leave petition filed by a private party, other than the complainant,
in those cases only where it is convinced that the public interest
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justifies an appeal against the acquittal and that the State has
refrained from petition for special leave for reasons which do not
bear on the public interest but are prompted by private influence,
want of bona fide and other extraneous considerations. Therefore,
locus standi of the petitioner must be recognised in law. It was
observed that the petitioner therein had failed to establish that
there was a case for interfering with the judgment of this Court
allowing the appeal and hence, the writ petition was dismissed.
10.2 In Chand Devi Daga vs. Manju K. Humatani, (2018) 1
SCC 71, the original complainant had died during the pendency of
the criminal miscellaneous petition before the High Court which
was filed against the order of the Sessions Court rejecting the
criminal revision against the order of the Magistrate dismissing the
complaint. The High Court allowed the interlocutory application
filed by the legal representatives of the petitioner in the criminal
miscellaneous petition. The respondent before the High Court,
being aggrieved by the said order, had filed an appeal before this
Court. Referring to Section 256 CrPC, this Court observed
that even in case of trial of summons case, it is not necessary or
mandatory that after the death of the complainant, the complaint
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has to be rejected. Under the proviso to the said Section, the
Magistrate can proceed with the complaint. That a similar
provision with regard to trial of warrant cases by the Magistrate is
not provided for under the CrPC but the Magistrate has the power
to discharge a case where the complainant is absent under Section
249 which is, however, hedged with a condition that “the offence
may be lawfully compounded or is not a cognizable offence”.
Therefore, there is no indication that on the death of the
complainant, the complaint has to be rejected in a warrant case.
Referring to certain other judicial dicta, this Court observed that
the High Court did not commit any error in allowing the legal heirs
of the complainant to prosecute the criminal miscellaneous
petition before the High Court and consequently, dismissed the
appeal.
10.3 In M.R. Ajayan vs. State of Kerala, 2024 SCC OnLine SC
3373, this Court considered the locus of a private individual
seeking exercise of jurisdiction of this Court under Article 136 of
the Constitution. Placing reliance on National Commission for
Women vs. State of Delhi, (2010) 12 SCC 599; Amanullah vs.
State of Bihar, (2016) 6 SCC 699 (“Amanullah”) and PSR
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Sadhanantham, it was observed that the appellant therein had
locus standi to prosecute the special leave petition before this
Court. Referring to the observations of this Court in Amanullah,
it was stated that it may not be possible to strictly enumerate as to
who all will have locus to maintain an appeal before this Court
invoking Article 136 of the Constitution of India as that would
depend upon the factual matrix of each case, as each case has its
unique set of facts. In other words, any person having a bona fide
connection with the matter, to maintain the appeal with a view to
advance substantial justice, must be permitted to do so.
10.4 We take note of the aforesaid judgments of this Court which
are judgments rendered in the context of Article 136 of the
Constitution of India as they would squarely apply to the present
case as apart from the original appellant herein the applicant
(injured victim) could have also preferred a Special Leave Petition
under Article 136 of the Constitution of India in his own right but
instead he is now seeking to prosecute these Criminal Appeals as
an heir of the original appellant who was a victim. Although PSR
Sadhanantham is a case which arose in a petition filed under
Article 32 of the Constitution of India, nevertheless the question
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which arose therein is similar to the question in the present case
and therefore, the observations therein squarely apply.
11. We are conscious of the fact that the applicant who is seeking
substitution in the instant case is not only the son and heir of the
original appellant who preferred these appeals but is also an
injured victim in the incident which occurred on 09.12.1992 in
respect of which these appeals have been filed. Therefore, the
applicant could have filed these appeals assailing the judgment of
acquittal passed by the High Court in his individual capacity as an
injured victim. However, the applications for substitution have
been filled in order to continue the prosecution of these appeals as
the heir of the original appellant who was also an injured victim.
Hence, the detailed discussion that we have made is in acceptance
of the argument of learned counsel for the applicant that as heir of
the original appellant, who was an injured victim, he can prosecute
these appeals. Therefore, the applicant is being permitted to be
substituted in place of the original appellant as heir of the original
appellant (who was a victim in the incident). In other words, we
observe that even if the applicant was not an injured victim in the
said incident but has sought to prosecute these appeals as heir of
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the injured victim (original appellant), he is permitted to do so. We
therefore say, coincidentally, the applicant is also an injured victim
in the incident. In view of the above discussion, we do not accept
the contention of learned senior counsel for the respondent-
accused that the applicant herein would have to separately file
appeals before this Court as an injured victim and in that capacity
only and not as heir of the original appellant.
11.1 Secondly, another contention of learned senior counsel for
the respondent-accused is that under Section 394(2) CrPC, the
expression “every other appeal” other than an appeal filed under
Section 377 CrPC or Section 378 CrPC shall finally abate applies
to an appeal filed by a victim. We do not think the same can be
simply applied to an appeal filed by a victim or an heir of the victim.
Although, sub-section (2) of Section 394 CrPC states that “every
other appeal under this Chapter shall finally abate on the death of
the appellant”, it cannot be related to an appeal filed by a victim or
on the death of the victim/appellant. This is because Sections 377
and 378 CrPC respectively deal with an appeal filed by the State
Government against sentence and an appeal in case of acquittal.
Such appeals are filed against the accused and therefore, when the
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accused dies, such appeals would abate. The expression “every
other appeal” must therefore, relate to an appeal which is not filed
under Section 377 or Section 378 CrPC. Such an appeal is an
appeal against a conviction such as under Section 374 CrPC and
on the death of the appellant who is the accused, such appeal
would abate. The proviso to sub-section (2) of Section 394 CrPC
however, states, that even if the accused-appellant dies during the
pendency of the appeal, any of his near relatives may continue the
appeal and the appeal may not abate. In other words, the heirs of
the deceased accused-appellant have been permitted to continue
the appeals so as to seek an acquittal and realise the fruits of such
an acquittal which could be even in monetary terms despite the
death of the accused-appellant.
11.2 If the same logic is to apply to the proviso to Section 372
CrPC, it would imply that the heirs of a victim can also pursue an
appeal filed under that provision as the definition of victim under
Section 2(wa) includes the heir of a victim.
11.3 The expression “prefer an appeal” in proviso to Section 372
CrPC has to be given an expanded meaning to include prosecution
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of an appeal or effectively pursue an appeal. According to Black’s
Law Dictionary, the word “prefer” means “to bring before; to
prosecute; to try; to proceed with. Thus, preferring an indictment
signifies prosecuting or trying an indictment; – Manik Lal
Majumdar vs. Gouranga Chandra Dey, (2004) 12 SCC 448.
11.4 We may usefully refer to Constitution Bench Judgment of
this Court in Garikapati Veeraya vs. N. Subbiah Choudhry, AIR
1957 SC 540 wherein it was observed thus:
“23. From the decisions cited above the following
principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and
second appeal are really but steps in a series of
proceedings all connected by an intrinsic unity and are to
be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure
but is a substantive right.
(iii) The institution of the suit carries with it the implication
that all rights of appeal then in force are preserved to the
parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to
enter the superior court accrues to the litigant and exists
as on and from the date the lis commences and although
it may be actually exercised when the adverse judgment is
pronounced such right is to be governed by the law
prevailing at the date of the institution of the suit or
proceeding and not by the law that prevails at the date of
its decision or at the date of the filing of the appeal.
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(v) This vested right of appeal can be taken away only by a
subsequent enactment, if it so provides expressly or by
necessary intendment and not otherwise.”11.5 More importantly, Article 136 of the Constitution deals with
Special leave to appeal by the Supreme Court. Sub-clause (1) of
Article 136 begins with a non-obstante clause and confers
discretion on the Supreme Court to grant special leave to appeal
from any judgment, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal in the
territory of India. When this power under Article 136 is exercised
by the Supreme Court by granting leave, the special leave petition
would get converted into a criminal appeal. If during the pendency
of the special leave petition or the criminal appeal, the appellant
dies, the heir of the appellant must be given an opportunity to
prosecute the appeal irrespective of whether the heir is a victim of
the criminal offence. More significantly, the appeal heard pursuant
to Article 136 of the Constitution is not an appeal under Chapter
XXIX CrPC.
11.6 In the circumstances, we find that in the instant case, the
applicant, being heir of the victim, has the right to continue these
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appeals irrespective of the fact that he is an injured victim. In that
view of the matter also, we find that the application for substitution
has to be allowed.
11.7 However, if in a situation, the complainant who has preferred
an appeal under Section 378 CrPC dies, what would be the fate of
the appeal is not a question which arises in this case and therefore,
we keep the said question open to be adjudicated in any other
appropriate case.
12. In the circumstances, the delay in filing the application for
seeking setting aside of the abatement is condoned. The abatement
is set aside. The application for substitution of applicant is allowed.
Consequently, the applicant is permitted to be brought on record
as the legal representative of the original appellant, apart from he
being an injured victim also. Appellant’s counsel to file amended
memo of parties.
CRIMINAL APPEAL NOS.1330-1332 OF 2017:
The appellant herein, who is the legal heir of the original
appellant (and a victim of the incident that occurred on
09.12.1992) has been substituted to prosecute these appeals
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which have been filed being aggrieved by the judgment of acquittalof the accused vide order dated 12.09.2012 passed in Criminal
Appeal Nos.254 of 2004, 258 of 2004, 259 of 2004 by the High
Court of Uttarakhand at Nainital.
2. Learned counsel for the appellant made a two-fold
submission: firstly, he contended that even without going into the
merits of the case, the manner and tenor of the judgment may be
considered; that this is a judgment of a High Court which was
considering a first appeal against a judgment and order of
conviction which appeals were filed by respondents – accused; that
in a cryptic manner, the judgment has been delivered by the High
Court acquitting the respondents – accused. That this Court in a
catena of cases has observed that even if a judgment confirming
the judgment of a Sessions Court is to be rendered by the High
court and thereby dismissing the first appeal which has been
preferred under Section 374 CrPC, the appeal would have to be
considered based on the evidence on record and thereafter possibly
the High Court could dismiss such an appeal. But here is a case
where the High Court has reversed the judgment of the Sessions
Court inasmuch as the judgment and sentence of life
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imprisonment has been set aside and a complete acquittal given tothe respondents – accused without there being any reasons and
marshalling of the facts and the evidence on record. In this regard,
he drew our attention to paragraph 7 of the impugned judgment
and submitted that the findings in paragraph 7 of the impugned
judgment are de hors any basis in the absence of there being a
discussion of the facts and evidence on record. In the
circumstances, he submitted that this Court if it is so inclined may
consider remanding of the matter without going into the merits of
the case.
3. The second submission of learned counsel for the appellant
is, in the event this Court is not inclined to accept the first
submission, then the appeal can be taken up on merits. Learned
counsel submitted that even on merits, the High Court could not
have given a judgment of acquittal by reversing the judgment of the
Sessions Court. He therefore submitted that the impugned
judgment may be set aside and the judgment of the Sessions Court
may be restored.
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4. Per contra, learned senior counsel and learned counsel
appearing for the respondents-accused who have been acquitted,
vehemently contended that there is no merit in the submissions
made by appellant’s counsel. They drew our attention to the fact
that the High Court may have given the judgment pithily but it is
not without substance. Merely because the impugned judgment is
short and not lengthy cannot make it an erroneous judgment so
long as the reasoning is evident and there is a basis for the findings
arrived at. In the circumstances, this Court may not accept the first
contention of the appellant and hence, they contended that they
are ready to argue the matter on merits so that this Court could
confirm the judgment of acquittal passed by the High Court.
5. Learned counsel for the respondent-State submitted that, no
doubt the State has not preferred an appeal against the judgment
of acquittal as against the respondents – accused before this Court.
However, the State had preferred an appeal against the acquittal of
six other accused and that appeal was dismissed but in these
appeals filed by the appellant herein, the State is supporting the
appellant. Learned counsel for the respondent – State submitted
that having regard to the submissions advanced by the respective
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counsel and learned counsel for the parties, this Court may
consider remanding the matter to the High Court so that all parties
would get an opportunity to put forth their respective cases and
the High Court could consider the appeal afresh and in accordance
with law and come to its conclusion.
6. While hearing the appeals under Section 374(2) of the CrPC,
the High Court is exercising its appellate jurisdiction. There shall
be independent application of mind in deciding the criminal appeal
against conviction. It is the duty of an appellate court to
independently evaluate the evidence presented and determine
whether such evidence is credible. Even if the evidence is deemed
reliable, the High Court must further assess whether the
prosecution has established its case beyond reasonable doubt. The
High Court though being an appellate Court is akin to a Trial
Court, must be convinced beyond all reasonable doubt that the
prosecution’s case is substantially true and that the guilt of the
accused has been conclusively proven while considering an appeal
against a conviction.
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As the first appellate court, the High Court is expected to
evaluate the evidence including the medical evidence, statement of
the victim, statements of the witnesses and the defence version
with due care.
7. While the judgment need not be excessively lengthy, it must
reflect a proper application of mind to crucial evidence. Albeit the
High Court does not have the advantage to examine the witnesses
directly, the High Court should, as an appellate Court, re-assess
the facts, evidence on record and findings to arrive at a just
conclusion in deciding whether the Trial Court was justified in
convicting the accused or not. We are also cognizant of the large
pendency of cases bombarding our courts. However, the same
cannot come in the way of the Court’s solemn duty, particularly,
when a person’s liberty is at stake.
8. This Court in State of Uttar Pradesh vs. Ambarish, (2021)
16 SCC 371 held that while deciding a criminal appeal on merits,
the High Court is required to apply its mind to the entirety of the
case including the evidence on the record before arriving at its
conclusion. In this regard, we may also refer to the orders passed
by this Court in Shakuntala Shukla vs. State of Uttar Pradesh,
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(2021) 20 SCC 818 and State Bank of India vs. Ajay Kumar
Sood, (2023) 7 SCC 282.
9. We find that the High Court ought to have considered the
evidence on record in light of the arguments advanced at the bar
and thereafter ascertained whether the Sessions Court was
justified in passing the judgment of conviction and imposing the
sentence. The same being absent in the impugned judgment, for
that sole reason, we set aside the same.
10. We therefore find that the first contention advanced by the
learned counsel for the appellant and the submission made by
learned counsel for the respondent-State has to be accepted for the
reason that the respondents-accused in these appeals respectively
would also have another opportunity in the appeals that they had
filed before the High Court. In the circumstances, while holding
that the impugned judgment of the High Court is cryptic and de
hors any reasoning in coming to the findings in paragraph 7 of the
said judgment, we set aside the said judgment without expressing
anything on the merits of the case.
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11. We allow the appeals filed on the aforesaid limited ground.
12. The matters are remanded to the High Court of Uttarakhand
at Nainital.
13. The High Court is requested to rehear the appeals filed by the
respondents/accused respectively in these appeals by also giving
an opportunity to the appellant herein to make his submission in
the said appeals as well as the State to make its submission in the
matter.
14. We once again clarify that we have not made any
observations on the merits of the matter.
15. All contentions on both sides are left open to be advanced
before the High Court.
16. Since the incident is of the year 1992 and the impugned order
is dated 12.09.2012 and we are remanding the matter to the High
Court, we request the High Court to dispose of the appeal as
expeditiously as possible.
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17. Since we have set aside the judgment dated 12.09.2012
passed by the High Court of Uttarakhand at Nainital in Criminal
Appeal Nos.254 of 2004, 258 of 2004, 259 of 2004, the accused
Nos.4, 3 and 2 respectively shall remain on bail. However, accused
Nos.4, 3 and 2 shall appear before the concerned Principal District
and Sessions Judge, Haridwar and execute fresh bonds for a sum
of Rs.15,000/- each with two like sureties each and subject to
other conditions imposed by the concerned Principal District and
Sessions Judge, Haridwar.
These appeals are allowed and disposed of in the aforesaid
terms.
……………………………..J.
(B. V. NAGARATHNA)
……………………………..J.
(K.V. VISWANATHAN)
NEW DELHI;
JULY 31, 2025.
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