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IN THE HIGH COURT OF JUDICATURE AT PATNA
RAKESH KUMAR, ARVIND SRIVASTAVA, JJ.
Ramesh Kumar Son of Late Ram Lochan Yadav - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (DB) No. 101, 273 of 2011
Decided On : 28-03-2018
Acquittal - Appeal Maintainability - Cr.P.C. - I.P.C. - Arms Act - [Section 302, Section 27] - The appellant filed an appeal against his conviction and sentence under Section 302 of the Indian Penal Code, 1860 and Section 27 of the Arms Act, 1959. The judgment of acquittal of respondent no. 2 and 3 was also challenged. The court examined the maintainability of the appeal and found that the appellant was not a victim within the meaning of Section 2(wa) of the Cr.P.C. and was not entitled to maintain the appeal. The court set aside the judgment of conviction and sentence, extending the benefit of doubt to the appellant. The appeal against the judgment of acquittal was dismissed.
Fact of the Case:
The appellant was convicted and sentenced for the offence under Section 302 of the I.P.C. and Section 27 of the Arms Act. The case involved the alleged murder of the daughter of respondent no. 3. The appellant also filed an appeal against the judgment of acquittal of respondent no. 2 and 3. The court examined the maintainability of the appeal and found that the appellant was not a victim within the meaning of Section 2(wa) of the Cr.P.C. The appellant claimed that he was falsely implicated and that the informant side themselves had killed the minor girl and falsely implicated the appellant.
Finding of the Court:
The court found that the prosecution did not prove its case beyond all reasonable doubt and extended the benefit of doubt to the appellant, setting aside the judgment of his conviction and sentence. The appeal against the judgment of acquittal was dismissed.
Issues: The issues involved the maintainability of the appeal, the credibility of the witnesses, and the prosecution's failure to prove the case beyond all reasonable doubt.
Ratio Decidendi: The court extended the benefit of doubt to the appellant, set aside the judgment of his conviction and sentence, and dismissed the appeal against the judgment of acquittal.
Final Decision: The judgment of conviction and sentence was set aside, and the appeal against the judgment of acquittal was dismissed.
RAKESH KUMAR, J.
The appellant in Cr.Appeal (DB) No. 101 of 2011 is aggrieved with his conviction and sentence for offence under Section 302 of the Indian Penal Code, 1860 (for short “I.P.C.”) and Section 27 of the Arms Act, 1959 (for short ‘Arms Act”) in Sessions Trial No. 188 of 2003/01 of 2004 (arising out of Parihar P.S. Case No. 61 of 2002). The same appellant has also filed an appeal, vide Cr.Appeal (DB) No. 273 of 2011, which has been filed against the judgment of acquittal of respondent no. 2 and 3. The judgment of acquittal dated 12th January, 2011 was passed in Sessions Trial No. 542 of 2006/108 of 2006 (arising out of Case No. C1-208/03). In both the cases, it was alleged that daughter of respondent no. 3 Amar Kumar in Cr.Appeal (DB) No. 273 of 2011 namely Arti Kumari @ Bharti Kumari was done to death by firearm injury.
2. Cr. Appeal (DB) No. 101 of 2011 filed under Section 374(2) read with Section 389(1) of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) was admitted on 22nd of February, 2011 and it was observed that his prayer for bail would be considered after receipt of the lower court record, however; subsequently the prayer for bail of appellant Ramesh Kumar was rejected and he is still in custody. Cr.Appeal (DB) No. 273 of 2011 filed under proviso to Section 372 Cr.P.C. was admitted on 5th April, 2011. Accordingly, both the appeals were taken up together for final hearing and are being disposed of by this common judgment.
3. Before proceeding, it would be appropriate to notice that Cr. Appeal (DB) No. 273 of 2011, which was filed by the appellant against the judgment of acquittal, was primarily not entertain-able, since the appellant was not victim within the meaning of Section 2(wa) of the Cr.P.C. The appellant being not a victim was not entitled to file appeal against acquittal in view of proviso to Section 372 Cr.P.C. Surprisingly, the appellant Ramesh Kumar was cousin grand father of the deceased girl namely Arti Kumari @ Bharti Kumari. He had filed complaint arraying father of the deceased namely Amar Kumar, own grand father and own grand mother namely Ram Sagar Rai and Geeta Devi respectively as accused, whereas, Cr.Appeal (DB) No. 101 of 2011 arises out of Parihar P.S. Case No. 61 of 2002, in which, Geeta Devi, grand mother of the deceased, was the informant and appellant Ramesh Kumar alongwith others were arrayed as F.I.R. named accused persons for murdering Arti Kumari @ Bharti. Accordingly, the appellant Ramesh Kumar was not victim and as such, he was not covered under proviso to Section 372 of the Cr.P.C. Section 372 of the Cr.P.C. contemplates that no appeal against acquittal shall be filed, but it can be filed as per proviso to the said section, which contemplates that victim would be entitled to maintain the appeal against acquittal. It is necessary to reproduce Section 372 and 2(wa) Cr.P.C. below:-
“Section 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:
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.”
“Section 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.”
4. Since the appellant was not victim within the definition of Section 2(wa) of the Cr.P.C., he was not entitled to maintain the appeal. However, since the appeal against acquittal was already admitted, at the moment, we are not passing any positive order on the point of maintainability of the appeal i.e. Cr.Appeal (DB) No
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