Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1140 (ALL)

Ajay Gaud v. State Of U. P.

2022-07-22

VIKAS BUDHWAR, VIVEK KUMAR BIRLA

body2022
JUDGMENT : 1. Heard Sri Deepak Singh, learned counsel for the appellant-Ajay Gaud and Ms. Aarushi Khare, learned counsel for the respondent no. 2-Smt. Daya Sharma and learned AGA for the State-respondent no. 1 and perused the record. 2. Present appeal has been filed challenging the judgement and order dated 18.5.2019 passed by the Additional Sessions Judge, Court No. 23, Kanpur Nagar in Sessions Trial No. 1027 of 1997 (State vs. Dayaram Sharma and others), arising out of Case Crime No. 112 of 1997, under Sections 147, 148, 149, 302 IPC, P.S. Nazirabad, District Kanpur Nagar. 3. At the very outset, a preliminary objection has been raised by Ms. Aarushi Khare, learned counsel for the accused respondent regarding maintainability of the present appeal on the ground that the present appeal has been filed by Ajay Gaud, who is admittedly nephew of the deceased and is, therefore, not a victim as per Section 2 (wa) of the Criminal Procedure Code (CrPC). Submission, therefore, is that he has no right to file appeal under proviso to Section 372 CrPC as he has not suffered any loss or injury caused to his own body, mind, reputation and property and that he is not the guardian or legal heir either. 4. Replying the same, learned counsel for the appellant sought to argue that the appellant-Ajay Gaud is nephew of the deceased and is one of the witnesses of the incident and therefore, he has a right to file present appeal. He tried to argue the matter on merits at this stage, which we refused to entertain before deciding a preliminary objection. 5. Before we proceed further, it would be appropriate to take note of the word “victim” as provided in Section 2(wa) of the CrPC, which is quoted as under: “2. Definitions-In this Code, unless the contest otherwise requires- (a).... (b)... (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: 6. The issue as to who would be the victim within the meaning of Section 2 (wa) CrPC need not detain us for long as this definition has been dealt with extensively by Hon'ble Full Bench in the case of Manoj Kumar Singh vs. State of UP and others, 2016 (97) ACC 861. The issue as to who would be the victim within the meaning of Section 2 (wa) CrPC need not detain us for long as this definition has been dealt with extensively by Hon'ble Full Bench in the case of Manoj Kumar Singh vs. State of UP and others, 2016 (97) ACC 861. 7. After considering the definition and the relevant law in detail, in paragraphs 70 and 71 it was held as under: “70. From the discussions that have been made above, it is clear that the proviso of Section 372 is an exception to the general law and same confers on a victim a right to appeal against acquittal, which is subject to the grant of leave by the Court. The first part of the definition of 'victim' as given under Section 2 (wa) (i.e. "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), is required to be construed in its literal sense and no liberal interpretation is required, Accordingly, only such person would be treated as ''victim', who is the subject-matter of trial being direct sufferer of crime in terms of loss or injury caused to his own body, mind, reputation and property and such loss or injury is one of the ingredient of the offence for which the accused person has been charged and, therefore, any other person cannot be accepted as victim within the first part of Section 2 (wa) for the purposes of maintaining appeal. The second part that is "includes his or her guardian and Legal Heir" would come into play when the actual sufferer is absent or suffers disability. 71. In other words, victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him /her right to prefer appeal under the proviso of section 372, though, in his or her absence or disability, his "legal heir" or "guardian" would qualify as victim and have a right to appeal. A person who claims himself to be 'guardian' or 'legal heir' of actual victim (direct sufferer), would be able to maintain appeal provided he establishes his claim as such before the court in his application by disclosing his particulars; relationship with the direct sufferer; and the grounds on which such claim of being "legal heir" or "guardian" is based. In the light of the discussion made above, the ratio of Division Bench of this Court in the case of Edal Singh (supra) is in tune with the definition of 'victim' as provided under Section 2 (wa) of the Code of Criminal Procedure. The reference is answered accordingly.” 8. Accordingly, it is, therefore, clear that a victim is 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 as such, only such person would be treated “victim” who is the subject-matter of trial being direct sufferer of crime in terms of loss or injury caused to his own body, mind, reputation and property and such loss or injury is one of the ingredients of the offence for which the accused person has been charged and, therefore, any other person cannot be accepted as victim within the first part of Section 2 (wa) for the purposes of maintaining appeal. It was further held that the second part “includes his or hear guardian and Legal Heir” would come into play when the actual sufferer is absent or suffers disability. 9. From perusal of record, we find that that the deceased has a son Rajesh Jha who was stated to be in Mumbai and was posted as Deputy Commissioner of Customs at the time of incident, therefore, the instant appellant-Ajay Gaud herein, who is nephew of the deceased, cannot be taken as a victim as held by Hon'ble Full Bench in Manoj Kumar Singh (supra). Since Rajesh Jha, son of the deceased, is alive, therefore, even the second part of the definition as provided in Sub-Section 2 (wa) CrPC would not come into play as held by Hon'ble Full Bench in Manoj Kumar Singh (supra). 10. Accordingly, present appeal stands dismissed as not maintainable. 11. However, it is made clear that dismissal of the present appeal as not maintainable would not effect the merits of the criminal appeal filed by the accused persons.