# Ajay Gaud v. State of U.P. & Anr

- **Citation:** (2022) 9 ILRA 670
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-22
- **Case number:** Criminal Appeal No. 118 of 2019
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-gaud-v-state-of-u-p-anr-49100
- **Pages:** 4

## Headnote

(A) Criminal Law - Maintainability of
appeal - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 - The Code of
criminal procedure, 1973 - Section 372 -
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 -
expression "victim" includes his or her
guardian or legal heir - proviso of Section
372 is an exception to the general law -
same confers on a victim a right to appeal
against acquittal, which is subject to the
grant of leave by the Court.(Para -5,7)

Appeal filed by nephew of deceased - under
proviso to Section 372 Cr.P.C. - not suffered any
loss or injury - not guardian or legal heir
either.(Para -3)

HELD:-Appellant is nephew of deceased,
cannot be taken as a victim. Son of deceased, is
alive, therefore, even the second part of the
definition as provided in Sub-Section 2 (wa)
CrPC would not come into play. (Para - 9)

Criminal
appeal
dismissed
as
not
maintainable. (E-7)

List of Cases cited:-

Manoj Kumar Singh Vs St. of U..P & ors., 2016
(97) ACC 861

## Text

670 INDIAN LAW REPORTS ALLAHABAD SERIES
are vigilant and "do not slumber over their
rights."

17. In Maniben Devraj Shah Vs.
Municipal
Corporation
of
Brihan
Mumbai, 2012 (5) SCC 157, in para 18 of
the judgment, the Court said as under:

"What needs to be emphasised is
that even though a liberal and justice
oriented approach is required to be adopted
in the exercise of power under Section 5 of
the Limitation Act and other similar statutes,
the Courts can neither become oblivious of
the fact that the successful litigant has
acquired certain rights on the basis of the
judgment under challenge and a lot of time
is consumed at various stages of litigation
apart from the cost. What colour the
expression 'sufficient cause' would get in the
factual matrix of a given case would largely
depend on bona fide nature of the
explanation. If the Court finds that there has
been no negligence on the part of the
applicant and the cause shown for the delay
does not lack bona fides, then it may
condone the delay. If, on the other hand, the
explanation given by the applicant is found
to be concocted or he is thoroughly
negligent in prosecuting his cause, then it
would be a legitimate exercise of discretion
not to condone the delay. In cases involving
the State and its agencies/instrumentalities,
the Court can take note of the fact that
sufficient time is taken in the decision
making process but no premium can be
given for total lethargy or utter negligence
on the part of the officers of the State and /
or its agencies/instrumentalities and the
applications filed by them for condonation
of delay cannot be allowed as a matter of
course by accepting the plea that dismissal
of the matter on the ground of bar of
limitation will cause injury to the public
interest."

18. In my view, the kind of
explanation rendered herein does not satisfy
the observations of Apex Court that if delay
has occurred for reasons which does not
smack of mala fide, the Court should be
reluctant to refuse condonation. On the
contrary, I find that here is a case which
shows a complete careless and reckless long
delay on the part of appellant which has
remain
virtually
unexplained
at
all.
Therefore, I do not find any reason to
exercise my judicial discretion exercising
judiciously so as to justify condonation of
delay in the present case.

19. In the result, the application
deserves to be dismissed.

20. Accordingly, the application for
condonation of delay is hereby rejected.

Case
:-
CRIMINAL
APPEAL
DEFECTIVE U/S 372 CR.P.C. No. - 11 of
2022

Since delay condonation application No.
01 of 2022 has been rejected by this Court
vide order of date, therefore, the present
appeal is also dismissed as barred by
limitation.
----------
(2022) 9 ILRA 670
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 118 of 2019
(U/S 372 Cr.P. C.)

Ajay Gaud ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties
9 All. Ajay Gaud Vs. State of U.P. & Anr.
671
Counsel for the Appellant:
Sri Deepak Singh

Counsel for the Opposite Parties:
Govt. Advocate, Ms. Aarushi Khare, Sri
Vinay Khare (Sr. Adv.)

(A) Criminal Law - Maintainability of
appeal - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 - The Code of
criminal procedure, 1973 - Section 372 -
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 -
expression "victim" includes his or her
guardian or legal heir - proviso of Section
372 is an exception to the general law -
same confers on a victim a right to appeal
against acquittal, which is subject to the
grant of leave by the Court.(Para -5,7)

Appeal filed by nephew of deceased - under
proviso to Section 372 Cr.P.C. - not suffered any
loss or injury - not guardian or legal heir
either.(Para -3)

HELD:-Appellant is nephew of deceased,
cannot be taken as a victim. Son of deceased, is
alive, therefore, even the second part of the
definition as provided in Sub-Section 2 (wa)
CrPC would not come into play. (Para - 9)

Criminal
appeal
dismissed
as
not
maintainable. (E-7)

List of Cases cited:-

Manoj Kumar Singh Vs St. of U..P & ors., 2016
(97) ACC 861

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Vikas Budhwar, J.)

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:
672 INDIAN LAW REPORTS ALLAHABAD SERIES

"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.

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
9 All. Munna Vs. State of U.P. & Ors.
673
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.
----------
(2022) 9 ILRA 673
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 543 of 2022
(U/S 372 Cr.P. C.)

Munna ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Ramanuj Yadav

Counsel for the Opposite Parties:
Govt. Advocate, Sri Nand Kishor Mishra,
Shilpa Ahuja

A. Criminal Law - Appeal against acquittal
- Criminal Law Amendment Act - Section 7
- Indian Penal Code,1860 - Section 436 -
Delay in lodging the FIR and its impact
upon the prosecution theory - It is well
settled that the delay in giving the FIR by
itself cannot be a ground to doubt the
prosecution case - Mere delay in lodging the
first information report with the police is, not
necessarily, as a matter of law, fatal to the
prosecution. The effect of delay in doing so in
the light of the plausibility of the explanation
forthcoming for such delay accordingly must fall
for
consideration
on
all
the
facts
and
circumstances of a given case.

Delay in lodging the FIR quite often
results in embellishment which is a
creature of afterthought. On account of
delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of
the
introduction
of
coloured
version,
exaggerated account or concocted story As a
result of deliberation and consultation. It is,
therefore, essential that the delay in the
lodging of the first information report
should be satisfactorily explained. (Para 22
to 27)

Normally, the Court may reject the case of the
prosecution in case of inordinate delay in
lodging the FIR because of the possibility of
concoction of evidence by the prosecution.
However, if the delay is satisfactorily explained,
the Court will decide the matter on merits