Summary
Where an injured victim who had appealed under the proviso to Section 372 CrPC against the High Court's acquittal of the accused died during the pendency of his appeals in the Supreme Court, his son and legal heir was permitted to be substituted and to prosecute the appeals. The 'right to prefer an appeal' in the proviso includes the right to prosecute it, 'victim' under Section 2(wa) includes a legal heir, and Section 394(2) does not abate such an appeal. On merits, the High Court's cryptic judgment of acquittal, delivered without evaluating the evidence, was set aside and the appeals remanded for fresh hearing.
Issues
- Whether the legal heir of a deceased appellant-victim who had preferred an appeal under the proviso to Section 372 CrPC can be substituted to continue prosecuting the appeal, or whether the appeal abates under Section 394(2) CrPC.
- Whether a victim who is also the complainant must proceed under Section 378(4) CrPC with special leave, or may appeal as of right under the proviso to Section 372.
- Whether a High Court hearing a first appeal against conviction under Section 374(2) CrPC can reverse a conviction and acquit without independently evaluating the evidence.
Provisions considered
- Section 372, proviso, Code of Criminal Procedure, 1973Inserted with effect from 31.12.2009 on the Law Commission's and Malimath Committee's recommendations, it confers on a victim an independent right to appeal against acquittal, conviction for a lesser offence or inadequate compensation, without any condition precedent. The expression 'right to prefer an appeal' was construed to include the right to prosecute the appeal, so the heir of a deceased appellant-victim may continue it; otherwise the proviso would be rendered redundant. (¶¶ 5, 5.1, 5.2, 5.3, 6, 6.1, 6.3, 7.1, 7.6, 8.2, 9, 9.1, 9.2, 9.3, 11.2, 11.3)
- Section 2(wa), Code of Criminal Procedure, 1973'Victim' is defined exhaustively and then inclusively: a person who has suffered any loss or injury (physical, mental, financial or legal injury, read with Section 44 IPC and the 1985 UN Declaration) by reason of the act or omission for which the accused is charged, and includes his or her guardian or legal heir. Because the heir of a victim is himself a victim, the heir of a legal heir who filed the appeal can prosecute it. (¶¶ 5, 5.2, 7, 7.3, 7.4, 7.5, 9.3, 11.2)
- Section 394, Code of Criminal Procedure, 1973Sub-section (1) abates appeals under Sections 377 and 378 on the death of the accused; 'every other appeal' in sub-section (2) refers to appeals against conviction, such as under Section 374, which abate on the accused-appellant's death subject to the proviso allowing near relatives to continue. It cannot be applied to an appeal filed by a victim or the victim's heir; and an appeal heard under Article 136 is in any event not an appeal under Chapter XXIX. (¶¶ 3.3, 7, 11.1, 11.2, 11.5)
- Section 378(4) to (6), Code of Criminal Procedure, 1973A complainant who is not a victim must seek special leave of the High Court within the prescribed time to appeal an acquittal; but a victim, whether or not also the complainant, may appeal as of right under the proviso to Section 372 and need not satisfy Section 378(4). The fate of an appeal by a complainant who dies was left open. (¶¶ 7, 7.2, 7.6, 8, 8.1, 8.2, 9.1, 11.7)
- Section 374(2), Code of Criminal Procedure, 1973In a first appeal against conviction the High Court must independently evaluate the evidence, assess its credibility and determine whether the prosecution proved its case beyond reasonable doubt; a judgment need not be lengthy but must reflect application of mind to crucial evidence (State of U.P. v. Ambarish). (¶¶ 6, 7, 8, 9)
- Articles 136, 14 and 21, Constitution of IndiaFollowing PSR Sadhanantham, Chand Devi Daga, M.R. Ajayan and Amanullah, a private party with a bona fide connection may be permitted to prosecute an appeal under Article 136; if the appellant dies the heir must be given an opportunity to prosecute the appeal whether or not the heir is a victim. The right of appeal of a convict is also a fundamental right under Articles 14 and 21, and the victim's right cannot be made subject to rigours that apply to the State or a complainant. (¶¶ 5.4, 9, 10, 10.1, 10.2, 10.3, 10.4, 11.5)
Held
- A victim as defined in Section 2(wa) CrPC has an independent, unconditional right to appeal under the proviso to Section 372 against an acquittal, conviction for a lesser offence or inadequate compensation, irrespective of whether he is the complainant; even a victim who is the complainant need not seek special leave under Section 378(4). The statutory rigours applicable to appeals by the State or a complainant cannot be read into the proviso. (¶¶ 7.6, 8.1, 8.2, 9, 9.1, 9.2)
- The expression 'right to prefer an appeal' in the proviso to Section 372 includes the right to prosecute the appeal; 'prefer' means to bring before, prosecute or proceed with. Since the definition of victim includes a legal heir, the heir of a legal heir who had preferred the appeal may be substituted to continue it on the original appellant's death; a contrary view would render the proviso redundant. (¶¶ 9.3, 11, 11.2, 11.3, 11.6)
- Section 394(2) CrPC, which abates 'every other appeal' on the death of the appellant, applies to appeals against conviction and not to an appeal filed by a victim or a victim's heir; the proviso permitting near relatives of a deceased convict-appellant to continue his appeal supports, by parity, the continuation of a victim's appeal by his heirs. An appeal arising from special leave under Article 136 is not an appeal under Chapter XXIX at all, and the heir of a deceased appellant must be allowed to prosecute it whether or not the heir is a victim. (¶¶ 11.1, 11.2, 11.5)
- The right of appeal is a substantive, vested right (Garikapati Veeraya); the legal pursuit of a remedy through appeal is one proceeding connected by intrinsic unity. (¶ 11.4)
- A High Court deciding a first appeal against conviction under Section 374(2) must independently re-assess the facts and evidence, including medical evidence, the victim's and witnesses' statements and the defence version, and be satisfied that guilt is proved beyond reasonable doubt; pendency of cases cannot excuse this duty where liberty is at stake. A cryptic judgment reversing a conviction and sentence of life imprisonment without marshalling the evidence must be set aside for that reason alone. (¶¶ 6, 7, 8, 9, 10)
Result
Applications allowed: delay condoned, abatement set aside, applicant substituted for the original appellant. Criminal appeals allowed on the limited ground that the High Court's judgment dated 12.09.2012 is cryptic and unreasoned; it is set aside without any observation on merits and the appeals remanded to the High Court of Uttarakhand for rehearing, with the appellant and the State heard, as expeditiously as possible. Accused Nos.4, 3 and 2 to remain on bail on executing fresh bonds of Rs.15,000 each with two sureties before the Principal District and Sessions Judge, Haridwar.