Appeal against acquittal
Dr G V Rao
(Querist) 29 November 2012
This query is : Resolved
Sirs, does a de-facto complainant have the right under law to appeal against acquittal of an accused ? Please help with relevant case law or Judgement citation..
Advocate Ramesh
(Expert) 29 November 2012
K. Chathukutty And Ors. vs K.S. Prasanna Venkitesan And Anr. on 21 November, 2006
Showing the contexts in which appeal against acquittal by complainant doctypes: kerala appears in the document
Change context size
Current
Indian Penal Code were framed against respondent. Charges were read over and explained to him. He understood the same and pleaded not guilty. On the side of complainant PWs 1 to 3 were examined. Exts. P1 to P8 proved and marked. After prosecution evidence was over respondent was questioned under Section 313 of Criminal Procedure Code. He denied all incriminating circumstances brought against him. No defence evidence was adduced. 4. Learned Magistrate after considering evidence adduced by the appellant found that he failed to establish charges levelled against respondent and acquitted him. Challenging the order of acquittal complainant has filed this Criminal Appeal after obtaining special leave. 5. Appellant-complainant died on 24-11-1999. On 19-7-2006 the widow and children of deceased appellant tiled Crl. M. Appln. No. 6984/2006 to implead them as additional appellants. They filed Crl. Appln. No. 6985/2006 to set aside abatement and Crl. M. Appln. No. 6983/2006 to condone delay in filing the petition to set aside abatement. The applications were opposed. Applications were heard by a learned single Judge of this Court on 11-9-2006. Reliance was placed on a decision of this Court in Sebastian v. State
have no application to criminal appeal filed by the complainant and pending before the appellate Court. So the question referred is left open to be decided in appropriate proceedings, 13. Section 354 of Criminal Procedure Cede, 1973 deals with death of appellant in a criminal appeal. It reads as follows: 394. Abatement of appeals,--(1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused, (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation.- In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister. 14. Section 394 of Cr. P.C. applies to appeals. The appeal against an order of acquittal and an appeal to the High Court for enhancement
appeal filed against acquittal and held that appeal does not abate. It was held as follows: An appeal under Section 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other. So position is no more res integra. Death of an appellant complainant in an appeal filed against acquittal will not terminate the proceedings. The appellate Court cannot close or dismiss the appeal as abated. In Bhageerathi Amma v. Jeevankumar 1982 Cri LJ 91 a learned single Judge of this Court considered the effect of death of appellant complainant during the pendency of appeal and held that appeal does not abate. It was held as follows: There is no much difference between Section 431 of the Code of 1898 and Section 394 of the present Code which would warrant a different interpretation. Evidently Section 394(1) has no application to cases of death of the complainant
next question arising for consideration is whether the legal heirs of the deceased appellant-complainant can be impleaded as additional appellants in an appeal filed against acquittal. In Lallo Prasad v. Kedarnath 1963 (2) Cri LJ 543 a learned single Judge of the Allahabad High Court held that appeal is a continuation of the proceedings started in the trial Court. It was held thus: In order to get assistance for the proper determination of the case on merits, the appellate Court can permit anyone, whom it deems fit, to place before it all the relevant facts and the evidence in the case so that no aspect of the matter escapes the Court's notice. It was further held thus: The appearance of such a person is analogous to that of an amicus curiae to assist the Court. 17. In Siba v. Kailash Chandra Jena 1965 (31) Cut LT 37 it was held as follows: There is no provision that the appeal shall abate on the death of the complainant. The appeal would be properly constituted despite the death of the complainant. But it would be better by way of abundant caution to add the legal representatives of the deceased complainant. The above is one of the citation. Hence after obtaining special leave we can file appeal
Dr V. Nageswara Rao
(Expert) 29 November 2012
Under S. 372 of CrPC the victim shall have a right to appeal against any order passed by the Court acquitting the accused or convicting him for a lesser offence..." A de facto complainant is in the shoes of the victim and he can appeal.
