Karnataka High Court
Mr Imran Pasha vs The State Of Karnataka on 18 March, 2020
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
AND
THE HON'BLE MR.JUSTICE ASHOK. G. NIJAGANNAVAR
CRL. A.NO.75/2014(A)
BETWEEN
MR. IMRAN PASHA
S/O SAHEB JAN
AGED ABOUT 36 YEARS
DOOR NO.1154
BEHIND OLD MUTTON MARKET
GULF COLONY, CHIPPINAKATTE
HASSAN-573201 ...APPELLANT
(BY SRI MAHESH S, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
BY BELLUR POLICE STATION-573 125
2. SRINATH ALIAS SRIKANTH
SON OF SRINIVASA
AGED 29 YEARS
NEAR LADIES HOSTEL
LOHIA ROAD, VIDYANAGAR
HASSAN-573 115
2
3. SOMASHEKARA ALIAS KAPPA ALIAS CHAKLI
S/O PUTTASWAMY GOWDA
AGED 29 YEARS
CHIKKABASAVANAHALLI
KOWSHIKA POST
SHANTHIGRAMA HOBLI
HASSAN DISTRICT -573 220
4. SANTOSH ALIAS QUARTER
S/O RANGASWAMY
AGED 28 YEARS
CHIKKABASAVANAHALLI
KOWSHIKA POST
SHANTHIGRAMA HOBLI
HASSAN DISTRICT-573 220
5. AJAY
S/O NATARAJ
AGED 26 YEARS
NEAR MALANADU
ENGINEERING COLLEGE
DASANAKOPPALU
HASSAN-573 220
6. RAGHAVENDRA ALIAS SWAMY
S/O NINGEGOWDA
AGED 28 YEARS
KOWSHIKA POST
SHANTHIGRAMA HOBLI
HASSAN DISTRICT-573 220
7. GIRISHA ALIAS DIDAGA GIRISHA
S/O NINGEGOWDA
AGED 31 YEARS
HIRISAVE HOBLI
CHANNARAYAPATTANA TALUK
HASSAN DISTRICT-573 116
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8. K.A. MAHESHA
S/O ANNIPUJARI K T
AGED 35 YEARS
KOWDALLI VILLAGE
ANEMAHALU POST
SAKALESHPURA TALUK
HASSAN DISTRICT-573 220
9. GIRISHA ALIAS OWLU
S/O JAVAREGOWDA
AGED ABOUT 35 YEARS
MARKURLI VILLAGE
SHANTHIGRAMA HOBLI
HASSAN DISTRICT-573 220
10. MR.AYUB
S/O LATE ABDUL RAHIM KHAN
AGED 33 YEARS
SCRAP MERCHANT
SHOP NO.12, NEW SCRAP BAZAAR
GEETHA TEMPLE ROAD
RESIDING AT NO.03, 10TH CROSS
GANDHINAGAR
MYSORE- 570 001 ...RESPONDENTS
(BY SRI.RACHAIAH.S, HCGP FOR RESPONDENT NO.1; SRI N.S.SAMPANGI RAMAIAH, AMICUS CURIAE FOR R2 TO R10) THIS CRL.A. IS FILED U/S.372 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 24.07.2013 PASSED BY THE I ADDL. S.J., MANDYA IN S.C.NO.186/2008 - ACQUITTING THE RESPONDENTS/ACCUSED NO.1 TO 7 AND 10 FOR THE OFFENCE P/U/S 120B,143,396,302 AND 201 R/W 149 OF IPC. ACCUSED NO.7 FOR THE OFFENCE P/U/S 411 OF IPC. ACCUSED NO.11 FOR THE OFFENCE P/U/S 411 AND 201 OF IPC.
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THIS APPEAL COMING ON FOR ORDERS ON MAINTAINABILITY THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
ORDER REGARDING MAINTAINABILITY OF APPEAL This appeal is filed under Section 372 of Criminal Procedure Code, 1973 ['Cr.PC', for short]. The appellant herein is PW.5 in S.C. No.186/2008 on the file of the I Additional District & Sessions Judge, Mandya. The records would indicate that the information regarding homicidal death of two unknown persons was informed to the Station House Officer of Bellur Police Station, Nagamangala Taluk, Bellur Hobli, Mandya District, where the informant Venkategowda, son of Thimmegowda, would inform that on 31.01.2008 at about 9 am in the morning, he noticed two bodies of unknown male persons in totally burnt condition where the clothes on their body as well as skin is completely burnt and there are no identification marks on their face. He would inform the Police that 5 the aforesaid two persons might have been killed at some other place and later brought to this place with an intention of burning them to destroy the identity of said persons and also to conceal the evidence. The said information was registered in Crime No.20/2008 on 31.01.2008 at 9.45 am under sections 302 and 201 of Indian Penal Code, 1860 ['IPC', for short]. Thereafter, investigation was conducted wherein it was revealed that the bodies which were found in fully burnt condition were that of driver and cleaner of the lorry bearing registration No.KA-15-4567 belonging to the appellant herein.
2. It is in this background, statement of the appellant was recorded by the Police where he would state that the deceased persons were Syed Farooq, driver of the aforesaid lorry and Ramesh, Cleaner in the said lorry. He would state that on 30.01.2008, three tonnes of roasted coffee seeds were loaded at 6 the instance of ABC Trading Company, Hassan and the same was required to be delivered to the office of the same company at Bengaluru which was entrusted to Syed Farooq and Ramesh. He would also state that he was not able to trace the whereabouts of the lorry and also driver and cleaner. Later, he came to know about somebody having taken the lorry along with the goods loaded therein by murdering the driver and cleaner of the aforesaid lorry.
3. With the aforesaid statement of appellant herein, the first information which was received under sections 302 and 201 was changed as a complaint under section 396 and 201 of IPC and accordingly investigation was taken up by the Police, resulting in charge sheet being filed on 4.6.2008 against Accused Nos.1 to 7, 10 and 11 as shown in charge sheet bearing No.71/2008 dated 4.6.2008. 7
4. The contents of the charge sheet would indicate that the accused therein were apprehended while interrogating them with reference to another crime where they would reveal their involvement by forming unlawful assembly in committing an act of dacoity, in stealing lorry belonging to PW.5 with goods loaded therein and in the process, committing murder of its driver and cleaner. It is based on the said confession by Accused Nos.1 to 7, complaint was registered against them and three others in Crime No.22/2008 of Kalasipalyam Police Station on 14.02.2008 for the offences punishable under sections 399 and 402 of IPC and charge sheet was subsequently filed against 9 persons in Charge Sheet No.71/2008 dated 4.6.2008, wherein it is also seen that in the process of investigation, the Police have apprehended the lorry and also confiscated goods from two different places based on the information 8 furnished by Accused Nos. 1 to 7, 10 and 11 and thereafter related the said crime to aforesaid accused and consequently filed charge sheet as stated supra, which was initially registered in CC No.349/2008 on the file of the Civil Judge & JMFC, Nagamangala and subsequently committed to sessions in S.C. No.186/2008.
5. It is seen that in the said proceedings, after recording evidence on behalf of the prosecution and after hearing learned Counsel for the prosecution as well as accused, the learned Sessions Judge proceeded to pass Judgment and Order of acquittal dated 24.07.2013 in exercise of the power under section 235[1] of the Cr.PC, in acquitting the Accused Nos.1 to 7, 10 and 11 of the offences alleged under sections 120-B, 143, 396, 302 and 201 read with section 149 of IPC and in the process, complaint against Accused Nos.8 and 9 in the first information 9 report was dropped. So far as Accused No.7 is concerned, he was also acquitted of the offence punishable under section 411 of IPC. Similarly, following the same analogy, Accused No.11 was also acquitted of the offences punishable under sections 411 and 201 of IPC. It is this Judgment and Order of acquittal which is subject matter of challenge in this appeal by PW.5 in the said proceedings under section 372 of Cr.PC.
6. This appeal was admitted on 19.06.2017 and thereafter listed for final hearing. Admittedly, in this proceedings, though notice was duly served on Accused Nos.1 to 7 and 10 & 11 who are arraigned as Respondent Nos.2 to 10, only few accused were represented by Counsel who subsequently did not appear before the Court. It is in this background, this Court appointed learned Counsel Sri. N.S. Sampangiramaiah, as Amicus Curiae on behalf of 10 Respondent Nos.2 to 10 who are Accused Nos. 1 to 7, 10 and 11 before the Sessions Court. So far as Respondent No.1-State is concerned, it is represented by learned Government Pleader.
7. When this matter is taken up for final disposal, learned Amicus Curiae appearing for Respondent Nos.2 to 10 would raise a preliminary objection regarding maintainability of the appeal. According to him, the appeal which is filed under section 372 of Cr.PC at the instance of PW.5-owner of the offending lorry and as well as employer of the victims is not maintainable, in as much as, the definition of section 2[wa] of Cr.PC does not include the employer of the victim and also owner of the lorry stolen by the accused while committing the crime of dacoity, therefore, the appeal under section 372 of Cr.PC is not maintainable.
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8. He would contend that a reading of section 372 of Cr.PC also clearly indicates that this appeal cannot be preferred by PW.5 and to substantiate the same, he would rely upon various Judgments rendered by the Apex Court as well as Division Bench of Andhra Pradesh High Court, Patna High Court and also Judgment rendered by Full Bench of Allahabad High Court.
(a) Before considering these Judgments, it is necessary to look into the definition of 'victim' as referred to in section 2[wa] of Cr.PC, which reads as under:
"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;"
(b) When we look at Section 372 of Cr.PC, the same would read as under:12
"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 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."
9. In the light of the aforesaid definition, now we look into the Judgments relied upon by the learned Counsel for Respondent Nos.2 to 10, to contend that the present appeal by PW.5 in the trial Court is not maintainable.
10. The first of the Judgments relied upon by learned Counsel for Respondent Nos.2 to 10 is the Judgment in the matter of 'NATIONAL COMMISSION OF WOMEN V. STATE OF DELHI AND ANOTHER', 13 reported in 2011 AIR SCW 61 (Supreme Court) wherein it is held as under:
"HEAD NOTE :
Constitution of India, Art.136 -Criminal P.C.(2 of 1974), S.377, S.372 -Special Leave Petition
-By Organisation pro bono publico against sentence -Maintainability Conviction of accused u/s.306 and S.376 IPC - High Court reduced sentence awarded u/S.376 taking into consideration several factors -Neither State which is complainant nor heirs of deceased have chosen to file a petition in High Court - S.L.P. by National Commission for Women against sentence reduction - Not maintainable
-Even otherwise, interference in High Courts discretion on quantum of sentence would be improper except in extraordinary circumstance.
(PARAs 6, 9 AND 10)
6. This Section specifically provides that it is the State Government or the Central Government which can issue a direction to the public prosecutor to present an appeal before the Court of Session or the High Court on the ground of inadequacy of the sentence. This Section does not in any manner authorize an 14 appeal to the Supreme Court. We are, therefore, unable to comprehend as to how the Commission was entitled to maintain an appeal in the Supreme Court against the order of the High Court. An appeal is a creature of a Statute and cannot lie under any inherent power. This Court does undoubtedly grant leave to the appeal under the discretionary power conferred under Article 136 of the Constitution of India at the behest of the State or an affected private individual but to permit anybody or an organization pro-bono publico to file an appeal would be a dangerous doctrine and would cause utter confusion in the criminal justice system. We are therefore, of the opinion that the Special Leave Petition itself was not maintainable.
9. A reading of the aforesaid excerpts from the two judgments would reveal that while an appeal by a private individual can be entertained but it should be done sparingly and after due vigilance and particularly in a case where the remedy has been shut out for the victims due to mala fides on the part of the State functionaries or due to inability of the victims to approach the Court. In the present 15 matter, we find that neither the State which is the complainant not the heirs of the deceased have chosen to file a petition in the High Court.
As this responsibility has been taken up by the Commission at its own volition this is clearly not permissible in the light of the aforesaid judgments.
10. Ms.Priya Hingorani's submission with regard to the reasons which weighed with the Court while reducing the sentence must not be dealt with. Sub-section(1) of 376 of the IPC provides for the imposition of a sentence of upto ten years or life but the proviso says that the Court may for adequate and special reasons, impose a lesser sentence. We are of the opinion that the discretion exercised by a Court, particularly a superior court, should not be lightly interfered with. We have quoted from the judgment of the High Court hereinabove and find that several factors had been taken into account while imposing a lesser sentence and it would be improper for us to interfere in the High Court's discretion on the quantum of sentence except in extraordinary circumstances. We do not see any such circumstance. We, accordingly, 16 dismiss the Special Leave Petition as not maintainable. The permission to file the Special Leave Petition granted vide this Court's order dated 2nd April, 2009, is, accordingly, revoked.
Petition dismissed."
11. The second Judgment relied upon by him is in the matter of 'D.SUDHAKAR v. PANAPU SREENIVASULU AND OTHERS', reported in 2013 CRI. L. J. 2764 (Division Bench of Andhra Pradesh High Court), wherein it is held as under:
"HEAD NOTE :
Criminal P.C. (2 of 1974), S.372 Proviso, S.2(wa) -Appeal against acquittal- Right of 'legal heir' to file appeal -Appellant claimed to be brother of deceased and 'victim' as defined in S.2 (wa) of Code -Appellant being brother and deceased being survived by his wife, appellant was Class II heir of deceased -He did not fall within definition of 'legal heir' and thus not entitled to prefer appeal under S.372 - Also, incident had taken place prior to amendment to S.372 and was not applicable to 17 cases where incident had taken place prior to amendment -Appeal at instance of appellant not maintainable.
(Para -10)
10. In view of the provisions of Sections 8 and 9 of the Hindu Succession Act, the appellant being a Class - II heir would not inherit anything from his deceased brother, as he is survived by his wife. Thus, the appellant is not entitled to the property of the victim under the applicable law of inheritance.
Though the appellant falls in one of the category of heirs as per the Hindu Succession Act, but the Legislature deliberately used the word "legal heir", which strictly means a person who is entitled to the property of the victim under the applicable law of inheritance i.e. Hindu Succession Act. Hence, we are of the considered opinion that when it is the intention of the Legislature to give right of appeal to the legal heir, the appellant will not fall within the definition of "legal heir" and he is not entitled to prefer an appeal to this Court under Section 372 Cr.P.C. against acquittal of the accused.
The second issue that falls for our consideration is that the incident has taken 18 place on 07.12.2007 and the amendment to Section 372 Cr.P.C. has come into force w.e.f. 31.12.2009, where the victim can prefer an appeal against acquittal. This issue will not hold us for long, in view of the fact that the Apex Court in National Commission for Women v. State of Delhi, has already held that the amendment is not applicable to cases where the incident has taken place prior to amendment. Therefore, even on this count, the appellant fails, and as such, the appeal is liable to be dismissed as not maintainable."
12. The third Judgment relied upon is in the matter of PARMESHWAR MANDAL v. STATE OF BIHAR AND OTHERS, reported in 2014 CRI. L.J. 1046 (Division Bench of Patna High Court), wherein it is held as under:
"Head Note :
(D) Criminal P.C. (2 OF 1974), S.372 Proviso, S.378 (as inserted by Amendment Act 5 of 2009)- Appeal against acquittal - Filing of, by 'victim' under proviso to S.372 - Yardsticks laid down by judicial pronouncements for 19 consideration of appeals under S.378 -Would be applicable in view of legal presumption of innocence in favour of accused.
(Para -49)
49. In the circumstances, after consideration of the entire matter, conclusions of this Court are as follows:-
(1) - By virtue of the Proviso, as inserted in section 372 of the Code of Criminal Procedure, 1973 by the Criminal Procedure Code (Amendment) Act, 2008 (Act 5 of 2009), a 'victim' has been put at a higher pedestal, than a prosecuting agency or a complainant, in the matter of preferring an appeal against any order of a criminal court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. This Proviso gives an unqualified 'right' to a 'victim' to prefer an appeal in its terms, as against the enabling sections 377 and 378, which only give liberty to a District Magistrate, the State Government, the Central Government and the complainant, as the case may be, to prefer an appeal against an order of sentence on the ground of its inadequacy or against an order of acquittal.20
(2) - The right of a 'victim' to prefer an appeal in terms of the said proviso to Section 372 is an unqualified right and no 'leave to appeal' or 'special leave' is required to be obtained by him/her for the purpose, as required by the State or the complainant for maintaining an appeal in terms of Section 378 of the Code.
(3) - No limitation of time has been provided by the Legislature for exercise of such a right of appeal by the 'victim' in terms of the said Proviso. Hence, in the fact and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bonafide explanation for delay by the appellant. The limitation laid down by the Full Bench of Punjab and Haryana High Court is a judicial fiat and not based on interpretation of the provisions of the Code or the Limitation Act, 1963. Hence the same is applicable only within the territorial jurisdiction of that High Court and not beyond.
(4) - However, in view of the legal presumption of innocence in favour of the accused, the yardsticks laid down by judicial pronouncements for consideration of appeals 21 under Section 378 shall be applicable in case of an appeal under the said proviso to Section
372.
(5) - The expression - long after the present incident - used under brackets by the Apex Court in paragraph 5 of its judgment in case of National Commission for Women v. State of Delhi and another [AIR 2011 SC (sup.) 392]:
[(2010) 122 SCC 599] is only an obiter dictum of the Court and it does not lay down a law in terms of Article 141 of the Constitution of India.
(6) - Proviso to section 372 of the Code came into operation w.e.f. December 31, 2009.
Hence, in absence of any legislative intent to the contrary, in all cases, in which a judgment and order has been passed by a criminal court on and after that date, a right accrues to the 'victim' to prefer appeal in terms of the said Proviso, irrespective of the date of occurrence and any subsequent event in the case prior to such judgment and order.
(7) - If the subject of the crime is dead or incapacitated to the extent or suffers from such a disability that he/she cannot take steps 22 to exercise his/her right under the Proviso to Section 372, any of his/her next of kin, who can establish before the Court, to its satisfaction, that the crime had caused 'loss' or 'injury' to him/her also, besides to the subject of the crime, can maintain an appeal under the said proviso.
(8) - The 'loss' and 'injury' to an appellant before it (if he/she is other than the de-facto sufferer) has to be assessed by the Court in each and every case in the backdrop of definition of 'injury' provided in section 44 of the Indian Penal Code, and not beyond it, before entertaining the appeal, in terms of the proviso to Section 372 on merits.
(9) - If any person prefers an appeal in terms of the proviso to Section 372, solely on the basis of his status as a 'guardian' or a 'legal heir', he/she will have to establish the legal basis of his/her such status in reference to the law, as may be applicable in the matter, with all its limitations and qualifications, or otherwise also (e.g. judicial order). (10) - Once an appeal preferred in terms of the said proviso to Section 372, against an order is 23 entertained by an appellate court on merits, to whatever result, no fresh/second appeal by any party/person can/should be entertained against the same order.
(11) - No distinction can be made between a case instituted by a complainant/informant with the police and by a complainant before the Court directly, and an absolute right of a victim (a complainant or not) to file an appeal under Proviso to Section 372 does not get fettered by any other section of the Code contained in Chapter XXIX, which includes Section 378."
13. The fourth Judgment relied upon is in the matter of 'MAST RAM TIWARI v. STATE OF U.P. AND OTHERS', reported in 2018 CRI. L.J. 1283 (Full Bench of Allahabad High Court), wherein it is held as under:
"HEAD NOTE:
(C) Criminal P.C. (2 of 1974), S.372 Proviso -
Appeal against acquittal -Right of victim -Right to prefer appeal conferred upon victim or his relatives by virtue of proviso to S.372, constitutes independent statutory right.
(Paras 13, 14) 24
13. Section 372 of CrPC was amended by Act No. 5 of 2009, whereby a proviso was added, conferring a statutory right upon the victim, as defined under Section 2(wa), to prefer an appeal against an order passed by the trial Court, either acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation. The proviso, for the first time, created right in favour of a victim as defined under Section 2(wa) to file appeal against an order of acquittal or against the order imposing lesser punishment or inadequate compensation. Prior to the introduction of the proviso to Section 372 of CrPC, the victim did not have any statutory right of appeal. Section 374 of CrPC had provided for a right of appeal against conviction to an accused. Section 377 enabled the State Government or the Central Government to file an appeal with regard to inadequacy of sentence. This provision, however, was conditional upon the fact that there could be no enhancement without an opportunity to the accused and that, in case, such an appeal was preferred, the accused had a right to plead for acquittal and/or for 25 reduction in sentence in that very appeal. We are not concerned with the provisions contained in Sections 374 and 377 in the present case and, hence, further reference to these provisions is not necessary.
14. The amendment to the provisions of Section 372 of CrPC was prompted by the 154th Law Commission Report. The Parliament, on the basis of the Report of the Law Commission, which is victim-oriented in approach, amended certain provisions of CrPC and added proviso to Section 372 of CrPC, conferring statutory right upon the victim to prefer an appeal before the High Court against an order of acquittal, or an order convicting the accused for the lesser offence or against the order imposing inadequate compensation, as observed earlier. In the light of the legislative history, it appears to us that the right to prefer an appeal conferred upon the victim or relatives of the victim by virtue of the proviso to Section 372 is an independent statutory right."
14. Per contra, learned Counsel Sri. S. Mahesh, appearing for appellant/PW.5 before the Sessions 26 Court who is also owner of the lorry and also custodian of the goods therein and employer of two victims in the said crime, would try to assert that the aforesaid Judgments relied upon by Accused Nos.2 to 10 have no relevance to the present set of facts and though they directly touch upon the definition of Sections 2[wa] and 372 of Cr.PC, what is considered in all those Judgments is only with reference to that portion of the Section which deals with the expression 'legal heir'. According to learned counsel, the definition of the word 'victim' as defined in Section 2(wa) of the Code of Criminal Procedure has three facets to it, it deals with the word 'victim' from the angle, 1) "a person who has suffered any loss", 2) "a person who has suffered injury" and also on the ground that the definition is an inclusive in nature, as could be seen "victim" includes his or her guardian or legal heir. Here, according to him, "the person who 27 has suffered loss" or "a person who has suffered injury", the definition of these two aspects, is not considered in any of the judgments referred to supra and he would also state that the inclusive nature of definition of "victim" is also not brought to the notice of the Apex Court or other Division Benches by the parties to the proceedings in as much as there was no occasion for the various High Courts and Apex Court to deal with the same.
15. Hence, the learned counsel for appellant would state that the appellant has genuine grounds which requires consideration by this Court. With such submission, he would try to analyze the facts of the present case in indicating that P.W.5 before the Sessions Court in S.C.No.186/2008 was not only a witness on behalf of the prosecution but he is also the victim of the criminal act attributed to accused Nos.1 to 11 in the said proceedings where they have formed 28 an unlawful assembly with a clear intention of committing dacoity and in aid of completing the cause for which they had formed illegal assembly they have further committed the act of homicidal death of driver and cleaner, who were causing obstruction to the act of committing the robbery of the goods.
16. In the result, PW.5 before the Court below has not only suffered loss of the goods, which was entrusted to him by the consignor, but also two of his trusted employees to whom he had entrusted the vehicle which was hijacked by accused Nos.1 to 11 before the Sessions Court and who, in furtherance of the act of committing the crime of dacoity have caused the homicidal death of his driver and cleaner. All these have caused not only loss of two of his trusted employees but also his lorry and the goods which was entrusted to him. Therefore, this has to be looked into in wider connotation. He would also try to 29 impress upon this Court, it is not in a casual manner, the definition of "victim" is inserted in Section 2 of the Code of Criminal Procedure. It is included with a view to widen the scope of the aforesaid Section to bring in the actual victims of the crime to raise their voice where either due to inefficiency of the investigation or incompetence of the persons, who are conducting the sessions case, result in wrongful acquittal of the persons involved in committing the offence, the same should not go unopposed, unchallenged and the inherent lacuna in conducting the investigation or the lacuna in conducting the proceedings before the Court should not give a supportive hand to the accused to go scot-free and at the same time by trying to restrict the definition of the word "victim" in a rigid confined meaning excluding the persons who have suffered loss and injury should not be deprived of opportunity in challenging the same, which would be detrimental to 30 the prosecution and also a greater loss to the society where the concession or relaxation with reference to right of appeal provided by the legislators in the best of their wisdom, would go without being properly implemented.
17. In support of his arguments, the learned counsel for the appellant would also bring to the notice of this Court, the judgment rendered by the Full Bench of Apex Court in the matter of MALLIKARJUN KODAGALI (DEAD) REPRESENTED THROUGH LEGAL REPRESENTATIVES V. STATE OF KARNATAKA AND OTHERS reported in (2019) 2 SCC 752, wherein he would take us through the discussion rendered with reference to "victims of crime and their rights" which is dealt in paragraph Nos.14 to 16 as under:
"Victims of crime and their rights
14. In recent times, four reports have dealt with the rights of victims of crime and the 31 remedies available to them. The first report in this sequence is the 154th Report of the Law Commission of India of August 1996. While this Report did not specifically deal with the right of a victim of crime to file an appeal, it did discuss issues of victims of crime, compensation to be paid to the victim and rehabilitation of the victim including the establishment of a Victim Assistance Fund.
15. The second important report is the March 2003 Report of the Committee on Reforms of Criminal Justice System, commonly known as the Report of the Justice Malimath Committee. In the Chapter on Adversarial Rights, it is recommended under the sub- heading of Victims Right to Appeal as follows:
"2.21. The victim or his representative who is a party to the trial should have a right to prefer an appeal against any adverse order passed by the trial court. In such an appeal he could challenge the acquittal, or conviction for a lesser offence or inadequacy of sentence, or in regard to compensation payable to the victim. The appellate court should have the same powers as the trial court in regard to assessment of evidence and awarding of sentence."32
16. Thereafter, in the substantive Chapter on Justice to Victims, it is noted that victims of crime, in many jurisdictions, have the right to participate in the proceedings and to receive compensation for injury suffered. It was noted as follows:
"6.3. Basically two types of rights are recognised in many jurisdictions, particularly in continental countries in respect of victims of crime. They are, firstly, the victim's right to participate in criminal proceedings (right to be impleaded, right to know, right to be heard and right to assist the court in the pursuit of truth) and secondly, the right to seek and receive compensation from the criminal court itself for injuries suffered as well as appropriate interim reliefs in the course of proceedings."
18. By referring to aforesaid portion of the judgment, learned counsel for the appellant would take us to the conclusion which is rendered by the Apex Court in the said matter at paragraph Nos.69 and 70, which would read as under:
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"69. It was submitted by the learned counsel for the accused that the right to file an appeal is a substantive right and it should not be easily recognised unless specifically conferred by statute. We agree. There is no doubt that from the time of the Constitution Bench decision of this Court in Garikapati Veeraya v. N. Subbiah Choudhry [Garikapati Veeraya v. N. Subbiah Choudhry, 1957 SCR 488 : AIR 1957 SC 540] it has been held that the right to appeal is not a mere matter of procedure but is a substantive right. We are bound by this decision as well as other decisions following this view. The question is whether this substantive statutory right has been conferred on the victim in a case such as the present.
70. It was also submitted by the learned counsel for the accused that in the present fact situation, if we were to hold that Kodagali was entitled to file an appeal against the acquittal of the accused, then we would be giving retrospective effect to the proviso to Section 372 CrPC. It was submitted that if Parliament intended to confer a statutory right of appeal on a victim with retrospective effect, it would have specifically said so. Since the proviso to 34 Section 372 CrPC was not specifically given retrospective effect, it must operate prospectively and the crucial date in a case such as the present would be the date of the alleged offence."
19. On careful consideration of the submission of learned Amicus Curiae appearing for Respondent Nos. 2 to 10 who is opposing the present appeal on the ground of maintainability as also arguments of learned Counsel for the appellant in this matter, who is trying to justify his right to oppose the judgment and order of acquittal, we are of the considered opinion that the Judgments relied upon by the learned Amicus Curiae in contending that the present appeal is not maintainable cannot be accepted, in as much as, the facts and circumstances of aforesaid four Judgments are totally under different set of facts distinguishable to the facts in the case on hand. 35
20. Admittedly, in the case on hand, the accused are alleged to have committed crime of dacoity i.e., unlawful assembly of more than five persons with common intention of robbing or hijacking the vehicle belonging to the appellant herein and also to rob the goods, namely, three tonnes of roasted coffee seeds therein which were entrusted to the appellant herein to be transported from Hassan to Bengaluru. In the process, the accused are alleged to have committed homicidal death of two of his employees, namely, Syed Farooq [Driver] and Ramesh [Cleaner] of the lorry belonging the appellant, thereby the aforesaid act has directly affected the interest of the appellant herein, in as much as, he has lost life of two of his employees, his lorry and the goods which were entrusted to him for transportation. Therefore, in this background, when definition of 'victim' as defined in section 2[wa] is reread, what could be seen 36 is that the said definition is not exhaustive but inclusive [underlining is provided by us to emphasize the inclusiveness]. As could be seen the definition itself would clearly indicate that "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.
21. In the present set of facts, the appellant is a victim beyond all reasonable doubt in as much as his lorry is stolen along with goods, besides, his employees are subjected to homicidal death to whom at the relevant point of time he had entrusted his vehicle and goods for transportation. Hence, in strict sense, he was their guardian until they completed the task of transporting goods from Hassan to Bengaluru. Since the crime is said to have committed by the Accused Nos. 2 to 10, while the said lorry was in the 37 process of transportation along with goods therein, which was to be transported from Hassan to Bengaluru, the act of committing dacoity i.e, hijacking lorry along with goods and in the process committing homicidal death of driver and cleaner would clearly define the act of crime against the appellant himself, in as much as, it is his wards, namely, driver and cleaner, who are said to have been subjected to homicidal death by Accused Nos. 2 to 10 and while doing so, they have also committed hijacking of the lorry and also goods along with it which are personal properties of PW.5 before the Sessions Court and appellant herein.
22. Therefore, in the present set of facts and circumstances, he is the victim to the extent of losing the lorry and its goods by the act of dacoity of the aforesaid properties and also the loss of two of his employees who were allegedly put to homicidal death 38 by these accused. Hence, he has right to pursue the appeal as contemplated under section 372 of Cr.PC. While making such observation, we are of the considered opinion that the Courts shall not be hyper technical and accused centric to ensure free passage to criminals.
23. The material available on record is glaring at the face of the Court which would indicate that the prosecution should not spare any attempt to bring them to book when material available points, the possible involvement of accused in committing such an act. As observed supra, the insertion of Section 372 is to ensure that fair opportunity is given to the victim. It is with such laudable object, section 372 of Cr.PC is inserted by the legislators by bringing amendment to the Cr.PC. The same cannot be interpreted casually and the right which is provided to 39 them by the legislation cannot be taken away by wrongfully interpreting the said provision of law.
24. With the aforesaid observation, we hold that the appeal which is filed by PW.5 in Sessions Court who is also owner of the lorry and custodian of three tonnes of roasted coffee seeds which was loaded in the said lorry at the relevant time as and when crime is alleged to have been committed by Respondent Nos. 2 to 10 who are Accused Nos.1 to 7, 10 & 11 before the Sessions Court, is held to be maintainable.
List this matter for final hearing during last week of March, 2020.
Sd/-
JUDGE Sd/-
JUDGE AN/-, BSR