Khem Singh (D) Through LRs vs State of Uttaranchal (Now State of Uttarakhand) & Another Etc.

Held: The expression ‘right to prefer an appeal’ in the proviso to s.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 s.372 CrPC – Therefore, the expression ‘the right to prefer an appeal’ to also include the ‘right to prosecute an appeal’ – 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 s.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 s.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 – There is 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 – The argument of the applicant that as heir of the original appellant, who was an injured victim, he can prosecute these appeals, is accepted – 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 – 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, 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 – The delay in filing the application for seeking setting aside of the abatement is condoned – The abatement is set aside. [Paras 9.3, 11, 12]

Constitution of India – Art.136 – When during pendency of special leave petition or criminal appeals, the appellant dies, whether the heir of the appellant must be given an opportunity to prosecute the appeal:

Held: Art.136 of the Constitution deals with Special leave to appeal by the Supreme Court – Sub-clause (1) of Art.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 u/Art.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 Art.136 of the Constitution is not an appeal under Chapter XXIX CrPC – In the circumstances of the present 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, the application for substitution has to be allowed. [Paras 11.5, 11.6]

Code of Criminal Procedure, 1973 – ss.2(wa); 372, 377, 378, 386, 394 – Discussed. [Para 7]

Words and Phrases – Victim, victimology – Discussed. [Paras 7.4, 7.5, 7.6.1]

Penal Code, 1860 – ss.148, 452, 302, 307, 149, 326, and 149 – The private respondents herein who were accused nos.4,

3 and 2 respectively were convicted and sentenced by the trial Court – Aggrieved, the respondents-accused preferred criminal appeals before the High Court, which were allowed – Correctness:

Held: 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, the judgment is set aside – The matters are remanded to the High Court. [Paras 9, 12]

Code of Criminal Procedure, 1973 – s.374(2) – Independent application of mind while hearing appeals:

Held: While hearing the appeals u/s.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. [Para 6]