ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

2. The present appeal has been preferred by the victim invoking proviso to Section 372 of the Code of Criminal Procedure (since repealed). The victim/appellant is aggrieved by and dissatisfied with the judgment dated 13.12.2019 passed by learned District and Additional Sessions Judge-V-cum- Special Judge Excise, Bettiah, West Champaran in Sessions Trial No. 323 of 2011 arising out of Bairiya P.S. Case No. 22 of 2009, CIS- Session Case 2123 of 2013 whereby and whereunder the respondent no. 2 has been acquitted of the charges under Sections 307, 448, 504 and 342/34 of the Indian Penal Code (in short ‘IPC’).

3. At the outset, learned counsel for the appellant submits that since the appeal has been preferred after the period of limitation, an application seeking condonation of delay has been filed and that has to be considered at this stage by virtue of the order dated 08.01.2026.

4. It appears from the records that on 08.01.2026 when this matter came up for consideration, we issued notice to respondent no. 2 in limitation as well as in admission matter. The office report shows that the notice sent through ordinary post has been validly served upon respondent no. 2 while process server’s report kept at flag “S” and “ A.D.” (duly flagged). According to these reports, the notice has been received by respondent no. 2 himself which is at flag D.

5. Learned counsel submits that taking into consideration the date of the judgment impugned in the present appeal, the period of limitation would have come to an end on 12.03.2020. The appellant could not prefer this appeal within the prescribed period of three months as there was surge in the Covid cases which ultimately led to the unprecedented lock- down in the country. Referring to the judgment of the Hon’ble Supreme Court in Civil Writ (Suo Moto) No. 03 of 2020, learned counsel submits that in terms of the said judgment, the period between 15.03.2020 and 28.02.2022 are required to be excluded while counting the delay. The delay of 324 days has been explained in the manner recorded above.

6. Mr. Dilip Kumar Sinha, the learned Additional Public Prosecutor of the State does not contest the submission of learned counsel for the appellant.

7. We are persuaded by the reasons shown in the application seeking condonation of delay. Accordingly, the delay is condoned and the I. A. No. 01 of 2025 is allowed.

Consideration on Merit

8. While challenging the impugned judgment of acquittal, learned counsel for the appellant has taken this Court through the order dated 13.12.2019 which is a one-page order passed under Section 232 of the Cr.P.C. We reproduce the said order hereunder for a ready reference:-

“ None for the state.Accused Barristar Dwivedi is present.That the brief fact of the case is that the accused Rajendra Dwivedi and Barristar Dwivedi were arrested for committing the offence u/s 307, 448, 504, 342/34 of the IPC. FIR was registered against the accused persons on 01.02.2019 and charge sheet was filed and cognizance was taken against the accused persons on 10.06.2010 and charges were framed against the accused persons on 01.05.2012 and during course of trial one accused Rajendra Dwivedi got expired on 10.08.2018, hence trial is pending only against Barrister Dwivedi. As charge was framed on 01.05.2012 and the case is fixed for evidence but no prosecution witness has appeared before the court.

Several steps have been taken by the court to secure the presence of prosecution witnesses. Despite granting several opportunities prosecution has failed to examine single witness. On 06.12.2019 last opportunity was granted to the prosecution with the direction that if prosecution has failed to examine any witness prosecution evidence shall be closed, the said order was shown to the Ld. APP, but today also no witness has appeared before the