Khem Singh vs State of Uttarakhand

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 Signature Not Verified Digitally signed by BORRA LM VALLI Date: 2025.08.22

Leave Petitions have been converted to these Criminal Appeals. 18:03:05 IST Reason:

Page 1 of 66

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

Page 2 of 66 arrival of villagers, all the accused managed to escape.

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 66

Name of IPC Section Punishment granted [R.I. – Punishment in the found guilty Rigorous Imprisonment; S.I. – default of fine Accused of Simple Imprisonment]

S.302 R.I. for life + Rs.1000 fine One month S.I. Ashok (A2) Ss.307/34 Five years R.I. + Rs. 1000 fine S.452 One month R.I. + Rs.1000 fine for each offence Pramod (A3) Ss.302/34 R.I. for life + Rs.1000 fine One month S.I. & Anil @ S.307 Five years R.I. + Rs. 1000 fine Neelu (A4) S.452 One month R.I. + Rs.1000 fine for each offence

2.4 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 respondent in these appeals,

Page 4 of 66 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 66 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 66 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

Page 7 of 66 deceased, the applicant, his son, who is 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

Page 8 of 66 appeal, the legal heirs of such an accused can be brought on

record to continue the 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 66

(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

Page 10 of 66 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.”

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

Page 11 of 66 appeals as during the pendency of these appeals the original

appellant has died. We are considering this issue irrespective of

the fact 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

Page 12 of 66 under:

i. The first report is the 154 th 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 re-

habilitation, 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 sen- tence, 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 recommend-

ations:

"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 of- fence, imposing inadequate sentence, or granting in- adequate compensation. Such appeal shall lie to the

Page 13 of 66 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’. Observa-

tions with regard to providing victim-oriented criminal justice

and a balance between the constitutional rights of an ac-

cused 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 pro-

cess 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

appeal before the revisional court. Similarly, in complaint

Page 14 of 66 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 com-

plaint 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 66 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 para-

graphs 74, 75 & 76 as under:

“74. Putting the Declaration to practice, it is quite obvi- ous 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 le- gislation, 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 en-

titled to file an appeal before the Court to which an ap- peal 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 provi- sion is quite clear and it is confined to an order of acquit- tal 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

Page 16 of 66 registration of an FIR, and therefore it is not at all neces-

sary to consider the effect of a victim being the complain- ant as far as the proviso to Section 372 CrPC is con- cerned.”

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 other- wise 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 in-

clude 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 com- plaint; and the police officer by whom such report is made shall be deemed to be the complainant;

xxx

Page 17 of 66

(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);

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 sen-

tence.—(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—

Page 18 of 66

(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.

(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establish- ment, constituted under the Delhi Special Police Estab- lishment 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 Gov- ernment may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inad- equacy—

(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),—

Page 19 of 66

(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 Ma- gistrate 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 Court from an original or appellate order of acquittal passed by any Court other than a High Court not be- ing 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 Spe- cial 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 in- stituted upon complaint and the High Court, on an ap- plication made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal,

Page 20 of 66 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.

(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 acquit- tal 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 interfer- ing, 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 sub- ordinate 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,

Page 21 of 66 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

(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 incid- ental order that may be just or proper:

Provided that the sentence shall not be enhanced un- less 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 ap- peal from a sentence of fine) shall finally abate on the death of the appellant:

Page 22 of 66

Provided that where the appeal is against a convic-

tion 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.”

7.1 Chapter XXIX of the CrPC deals with appeals. The said

Chapter 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 fil-

ing 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

Page 23 of 66 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 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 com-

pensation scheme for providing compensation to the victim or his

Page 24 of 66 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, Sec-

tion 376AB, Section 376D, Section 376DA and Section 376DB of

the Indian Penal Code. Also, Section 357C states that all hospit-

als, public or private, whether run by the Central Government,

the State Government, local bodies or any other person, shall im-

mediately 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 convic-

tions with which we are not concerned in this case, what is of rel-

evance 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)

Page 25 of 66 Act 2008 (5 of 2009), (with effect from 31.12.2009). It is hence ne-

cessary 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 omis-

sion for which the accused person has been charged and the ex-

pression ‘victim’ includes his or her guardian or legal heir.

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.”

Page 26 of 66 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 injury. The loss or injury could be either physical, mental, a

financial loss or injury. The expression ‘injury’ could also be con-

strued 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

Page 27 of 66 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

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.

Page 28 of 66 7.6.1 The word ‘victim’ is derived from the latin word “victima”

and originally contained the concept of sacrifice. In more contem-

porary times, the term ‘victim’ has been expanded to imply a vic-

tim of war, an accident, a scam, etc. As a scientific concept, ac-

cording to Criminologist B. Mendelsohn (1976), a victim may be

viewed as containing four fundamental criteria which are as fol-

lows:

 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 at-

tributes his injury to the culpability of another person.

Page 29 of 66 Victimology thus is a social-structural way of viewing crime,

the law, the criminal and the victim. Insofar as the injury is con-

cerned, 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 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 other- wise requires,— xxx

(b) “charge” includes any head of charge when the charge contains more heads than one;

Page 30 of 66

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 ac-

cusation 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 com-

mitted 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, intend-

ing the accusation of a crime which precedes a formal trial; to

mean a person charged with an accusation of a crime. In a fuller

Page 31 of 66 and more accurate sense, the expression charge includes the re-

sponsibility for the crime. As a formal complaint, a charge signi-

fies 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 suspec-

ted or accused of a crime by popular opinion or rumour and im-

plies 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 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 ap-

peals. 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 ap-

peal to the High Court. The limitation period for seeking special

Page 32 of 66 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 un-

der 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

acquittal, his right is circumscribed by certain conditions preced-

ent. 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 insti-

tuted 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

Page 33 of 66 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.

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 ap-

Page 34 of 66 peal 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 de-

ceased victim who can prefer an appeal.

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 al-

ways that the State or a complainant would prefer an appeal. But

when it comes to a victim’s right to prefer an appeal, the insist-

ence on seeking special leave to appeal from the High Court un-

der Section 378(4) CrPC would be contrary to what has been in-

tended by the Parliament by insertion of the proviso to Section

372 CrPC.

Page 35 of 66

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 com-

plainant.

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 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 com-

plainant against an order of acquittal cannot be read into the pro-

viso to Section 372 CrPC so as to restrict the right of a victim to

Page 36 of 66 file an appeal on the grounds mentioned therein, when none ex-

ists.

9.1 As already noted, the proviso to Section 372 CrPC was in-

serted 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 dis-

cussion, we hold that the victim of an offence has the right to

prefer an appeal under the proviso to Section 372 CrPC, irre-

spective of whether he is a complainant or not. Even if the victim

of an offence is a complainant, he can still proceed under the pro-

viso 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

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

Page 37 of 66 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

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

Page 38 of 66 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.

Page 39 of 66 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

Page 40 of 66 which vests power in this Court to entertain a petition and

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

Page 41 of 66 necessary for Article 136 to further its mission.

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

Page 42 of 66 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

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

Page 43 of 66 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 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. Page 44 of 66 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

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

Page 45 of 66 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

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

Page 46 of 66 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 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

Page 47 of 66 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 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.

Page 48 of 66 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 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: Page 49 of 66

“23. From the decisions cited above the following prin- ciples clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceed-

ings all connected by an intrinsic unity and are to be re- garded 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 implica- tion 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 ex- ists as on and from the date the lis commences and al- though 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.

(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

Page 50 of 66 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

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.

Page 51 of 66

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

which have been filed being aggrieved by the judgment of

acquittal of 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

Page 52 of 66 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

imprisonment has been set aside and a complete acquittal given

to the 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

Page 53 of 66 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.

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

Page 54 of 66 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 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

Page 55 of 66 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.

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

Page 56 of 66 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, (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

Page 57 of 66 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.

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

Page 58 of 66 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.

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

Page 59 of 66 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.

Page 60 of 66

ITEM NO.122/I COURT NO.4 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO(S).1330-1332/2017

KHEM SINGH (D) THROUGH Lrs APPELLANT(S)

VERSUS

STATE OF UTTARANCHAL (NOW STATE OF UTTARAKHAND) HOME DEPARTMENT SECRETARY RESPONDENT(S)

Date : 31-07-2025 These appeals were called on for hearing today.

CORAM : HON'BLE MRS. JUSTICE B.V. NAGARATHNA HON'BLE MR. JUSTICE K.V. VISWANATHAN

For Appellant(s) : Ms. Neema, AOR Mr. Aruni Poddar, Adv.

Mr. Ekta Muyal, aDv.

Mr. Anit Kumar, Adv.

Mrs. Shivani Kumari Adv.

For Respondent(s) : Mr. Manan Verma, AOR

Dr. Ajay Veer Pundir, Adv.

Ms. Anu Gupta, AOR Mr. Ali Jethmalani, Adv.

Ms. Sanjana Wason, Adv.

Mr. Ratnakar Dash, Sr. Adv.

Mr. Anurag Tomar, Adv.

Mr. Rameshwar Prasad Goyal, AOR

Mrs. Kawaljit Kochar, Sr. Adv.

Mr. Bhargava V. Desai, AOR

Page 61 of 66 Mr. Anil Makhija, Adv.

Mr. Shivam Sharma, Adv.

Mr. Deepanshu, Adv.

Mr. Utkarsh Vats, Adv.

UPON hearing the counsel the Court made the following O R D E R

In terms of the reportable judgment, appeals

are allowed, which is placed on file.

Pending application(s), if any, shall stand

disposed of.

(B. LAKSHMI MANIKYA VALLI) (DIVYA BABBAR) COURT MASTER (SH) COURT MASTER (NSH)

Page 62 of 66 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).1330-1332/2017

KHEM SINGH (D) THROUGH Lrs APPELLANT(S)

VERSUS

STATE OF UTTARANCHAL (NOW STATE OF UTTARAKHAND) AND ANOTHER ETC. RESPONDENT(S)

OPERATIVE PORTION OF THE JUDGMENT

Appeals are disposed of. The matters are

remanded to the High Court of Uttarakhand at

Nainital. Reasoned judgment shall follow.

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 the other

conditions imposed by the concerned Principal

District and Sessions Judge, Haridwar.

………………………………………………………………, J (B.V. NAGARATHNA)

Page 63 of 66 ………………………………………………………………, J (K.V. VISWANATHAN) NEW DELHI;

JULY 31st 2025

Page 64 of 66 ITEM NO.122 COURT NO.4 SECTION II-B

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO(S).1330-1332/2017

KHEM SINGH (D) THROUGH Lrs APPELLANT(S)

VERSUS

STATE OF UTTARANCHAL (NOW STATE OF UTTARAKHAND) HOME DEPARTMENT SECRETARY RESPONDENT(S)

(IA No.131604/2024-APPLICATION FOR SUBSTITUTION IA NO.11322/2025-APPLICATION SEEKING CONDONATION OF DELAY IN FILING APPLCIATION FOR SUBSTITUTION IA NO.11329/2025-APPLICATION FOR SEEKING SETTING ASIDE OF THE ABATEMENT)

Date : 31-07-2025 These appeals were called on for hearing today.

CORAM : HON'BLE MRS. JUSTICE B.V. NAGARATHNA HON'BLE MR. JUSTICE K.V. VISWANATHAN

For Appellant(s) : Ms. Neema, AOR Mr. Aruni Poddar, Adv.

Mr. Ekta Muyal, aDv.

Mr. Anit Kumar, Adv.

For Respondent(s) : Mr. Manan Verma, AOR

Dr. Ajay Veer Pundir, Adv.

Ms. Anu Gupta, AOR Mr. Ali Jethmalani, Adv.

Ms. Sanjana Wason, Adv.

Mr. Ratnakar Dash, Sr. Adv.

Page 65 of 66 Mr. Anurag Tomar, Adv.

Mr. Rameshwar Prasad Goyal, AOR

Mrs. Kawaljit Kochar, Sr. Adv.

Mr. Bhargava V. Desai, AOR Mr. Anil Makhija, Adv.

Mr. Shivam Sharma, Adv.

Mr. Deepanshu, Adv.

Mr. Utkarsh Vats, Adv.

UPON hearing the counsel the Court made the following O R D E R

IA Nos.131604 of 2024; 11329 of 2025 and

11322 OF 2025 are allowed.

Appeals are disposed of in terms of the

operative portion of the judgment. Reasoned

judgment shall follow.

Pending application(s), if any, shall stand

disposed of.

(B. LAKSHMI MANIKYA VALLI) (DIVYA BABBAR) COURT MASTER (SH) COURT MASTER (NSH)

Page 66 of 66