# Sageer Khan (In Jail) v. State of U.P. & Anr

- **Citation:** (2021) 3 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-19
- **Case number:** Criminal Appeal Defective No. 185 of 2021
- **Bench:** Rajan Roy, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sageer-khan-in-jail-v-state-of-u-p-anr-46975
- **Pages:** 5

## Headnote

matter-Code
of
Criminal
Procedure,1973-Section
372maintainability of appeal- application
filed
on
behalf
of
the
victim
for
impleadment as an appellant-but it is
supported by an affidavit of her father
i.e. the existing appellant on whose
behalf the appeal is not maintainable-
The application is not supported by the
affidavit of victim nor any reason has
been given in this regard-guardian of
victim has filed appeal while victim still
survives, which is not in tune of Full
Bench decision of this Court reported
Manoj Kumar Singh v. State of U.P. and
others-It is not the case of appellant
where
the
victim,
his
daughter,
is
disabled- She is surviving and is married,
therefore the appeal, if at all, could only
be filed by her in her own name, whereas
it has been filed by her father in his
name- The guardian or legal heir would
come into picture only if the victim is a
minor or is absent or is unable to file an
appeal on account of some disability-The
legal heir would come into picture when
the victim does not survive. (Para 2 to
11)
3 All. Sageer Khan Vs. State of U.P. & Anr.
865
B. The word victim as occurring in Section
2(wa) Cr.P.C. 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.(Para 4 )

C. 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.
(4 to 7)

The appeal is dismissed. (E-5)

List of Cases cited:

## Text

864 INDIAN LAW REPORTS ALLAHABAD SERIES
incriminating circumstances against the
accused is only that he was named in the
F.I.R.

33. We have been taken through Page
No. 123 of the paper book once again
today. The judgement of Rambali Vs.
State of U.P., on which heavy reliance has
been placed by the State, the facts are
different.

34. The judgement of Ravi (supra)
also would not come to the aid of the State
as Mallikarjun. The facts are entirely on a
different canvas.

35. The judgement of this High Court
and the Apex Court in Jagdish Prasad
(supra)
and
Smt.
Chintambaramma
(supra) would go to show that once there is
lack of common intention, no doubt if there
are startling witnesses and the evidence,
only then the accused can be convicted. In
our case while going to the deposition of Jai
Bhagawan (PW-1) and Sanjiv Kumar (PW2) as well as Prem Bala Devi (PW-3), we
find that there are certain contradictions
which would go in favour of the accused.

36. We have no other option but to
acquit the accused. The conviction is
reversed.

37. The accused is in jail for more than
10 years. He be set free immediately, if not
needed in any other offence.

38. Record and proceedings be sent
back to the trial court.

39. We are thankful to learned counsel
Sri D.K. Srivastava assisted by Sri H.K.
Singh, learned counsel for the appellant and
Sri N. K. Srivastava, learned counsel for the
State for ably assisting this Court.
----------
(2021)03ILR A864
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.02.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SAURABH LAVANIA, J.

Criminal Appeal Defective No. 185 of 2021

Sageer Khan ...Appellant(In Jail)
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Appellant:
Sheikh Mohammad Ali

Counsel for the Opposite Party:
G.A.

A. Criminal
matter-Code
of
Criminal
Procedure,1973-Section
372maintainability of appeal- application
filed
on
behalf
of
the
victim
for
impleadment as an appellant-but it is
supported by an affidavit of her father
i.e. the existing appellant on whose
behalf the appeal is not maintainable-
The application is not supported by the
affidavit of victim nor any reason has
been given in this regard-guardian of
victim has filed appeal while victim still
survives, which is not in tune of Full
Bench decision of this Court reported
Manoj Kumar Singh v. State of U.P. and
others-It is not the case of appellant
where
the
victim,
his
daughter,
is
disabled- She is surviving and is married,
therefore the appeal, if at all, could only
be filed by her in her own name, whereas
it has been filed by her father in his
name- The guardian or legal heir would
come into picture only if the victim is a
minor or is absent or is unable to file an
appeal on account of some disability-The
legal heir would come into picture when
the victim does not survive. (Para 2 to
11)
3 All. Sageer Khan Vs. State of U.P. & Anr.
865
B. The word victim as occurring in Section
2(wa) Cr.P.C. 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.(Para 4 )

C. 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.
(4 to 7)

The appeal is dismissed. (E-5)

List of Cases cited:

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

2. Edal Singh vs. St. of U.P. & 3 Ors. in Crl.
Misc. Appl. No.172 of 2014

3. Chunni Lal Vs. St. of U.P. & 3 Ors,Crl. Misc.
Appl. No. 166 of 2018
4. Mallikarjun Kodagali (Dead) Reprtd. Thru
L.Rs.Vs. S. of Karnataka & Ors (2019) 2 SCC
752

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Saurabh Lavania, J)

1. We have perused the Office report
dated 03.02.2021, according to which the
limitation for filing instant appeal is 90 days
and not 60 days, therefore, we treat the appeal
as within limitation.

2. This appeal was filed by Sageer
Khan informant and father of the victim. The
victim on the date of alleged crime is said to
have been a minor, however, learned counsel
for the appellant fairly submits that on the
date of filing of this appeal under Section 372
Cr.P.C. i.e. 28.01.2021, she had attained the
age of majority and is surviving.

3. This Court on 04.02.2021 noticing
the aforesaid defect passed the following
order:-

"Learned AGA has pointed out
defect in array of parties to the effect
that guardian of victim has filed appeal
while victim still survives, which is not
in tune of Full Bench decision of this
Court reported in [2016 (97) ACC 861];
Manoj Kumar Singh v. State of U.P. and
others.

Counsel for appellant seeks time
to rectify the defect.

List this appeal in next week as
fresh."

4. The Full Bench in Manoj Kumar
Singh Vs. State of U.P. & Ors., reported in
2016 (97) ACC 861, has considered the
866 INDIAN LAW REPORTS ALLAHABAD SERIES
meaning and purport of Section 2(wa) and
372 Cr.P.C., and has 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.

72. Let the order as well as the
record be placed before appropriate Bench
dealing with the "Leave to Appea1"
application."

5. It opined that the word victim as
occurring in Section 2(wa) Cr.P.C. 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. Thereafter, it
has delved into the question as to how the
guardian or legal heir could file the appeal.
It upheld the pronouncement of the
Division Bench in Edal Singh vs. State of
U.P. & 3 Ors. in Criminal Misc.
Application under Section 372 Cr.P.C.
(Leave to Appeal) No.172 of 2014 and
answered
the
reference
made
to
it
accordingly.

6. Learned counsel for the appellant
relied
upon
an
interim
order dated
17.01.2019 passed by this Court in an
appeal under Section 378 Cr.P.C. bearing
No.166 of 2018 (Chunni Lal Vs. State of
3 All. Sageer Khan Vs. State of U.P. & Anr.
867
U.P. & 3 Ors.), wherein the appeal by the
informant was held to be maintainable in
view of definition of victim under Section
2(wa) Cr.P.C. as well as law laid down by
the Supreme Court in the case of
Mallikarjun Kodagali (Dead) Represented
Through Legal Representative Vs. State of
Karnataka & Ors. (2019) 2 SCC 752.
However, when we perused the said order
we find no mention of the fact as to
whether the victim in the said case was
alive, was a minor or had attained the age
of majority or whether she was surviving or
not. Furthermore, when we go through the
decision
of
the
Supreme
Court
in
Mallikarjun Kodagali (supra), we find that
the victim therein had died, therefore,
obviously the factual circumstance before
the Hon'ble Supreme Court in the said case
was different from the case at hand where
not only the victim is surviving but she has
also attained the age of majority on the date
of filing the appeal. Therefore, in view of
the Full Bench decision referred herein in
above in Manoj Kumar Singh (supra) as
also the language used in Section 2(wa)
Cr.P.C. the informant who is the father of
the victim can not maintain the appeal and
it is prerogative of the victim of the case
who alone can file this appeal.

7. Although, Full Bench has already
considered the issue nevertheless it may be
emphasized and reiterated that by defining
the word victim under Section 2(wa)
Cr.P.C. to mean 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, it necessarily
implies the person who has actually
suffered the loss and a distinction has been
drawn by the Legislature with regard to
guardian or legal heir of such victim by
including them in the definition clause
separately by use of the word "includes his
or her guardian or legal heir". The guardian
or legal heir would come into picture only
if the victim is a minor or is absent or is
unable to file an appeal on account of some
disability. The legal heir would come into
picture when the victim does not survive.

8. There is another reason why we are
persuaded to take this view, that is,
assuming the victim does not wish to
challenge the judgment of the Trial Court,
but her father or any other relative misuses
the process of law taking advantage of the
words "guardian or legal heir" and files an
appeal, for whatever reason, therefore, this
mischief has also been warded off by the
Legislature by making such a provision.

9. It is not the case of appellant before
us that the victim, his daughter, is disabled.
She is surviving and is married, therefore
the appeal, if at all, could only be filed by
her in her own name, whereas it has been
filed by her father in his name.

10. Now when we peruse the
application for impleadment allegedly filed
on behalf of the victim for impleadment as
an appellant, we find that it is supported by
an affidavit of her father i.e. the existing
appellant on whose behalf the appeal is not
maintainable as already discussed. The
application is not supported by the affidavit
of victim nor any reason has been given in
this regard. Moreover, we find that the
victim has not engaged the learned counsel
for filing this appeal as there is no
Vakalatnama executed by her in his favour.

11. In view of aforesaid, the appeal is
dismissed as not maintainable on behalf of
the existing appellant the father of the
victim. The application for impleadment is
also not in order. For the reasons aforesaid
it is also dismissed. However, it is always
868 INDIAN LAW REPORTS ALLAHABAD SERIES
open for the victim to herself file the appeal
but only as per law.

12. Certified copies of the documents
filed alognwith this appeal be returned to
the appellant as per rules of the Court.
----------
(2021)03ILR A868
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Appeal No. 261 of 2006

Krishna Pal & Ors. ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri K.K. Tripathi, Sri Adarsh Kumar, Sri B.K.
Solanki, Sri Bansh Narain Rai, Sri Hardeo
Singh, Sri K.S. Yadav, Sri Kamleh Kumar
Tripathi, Sri Rajesh Dwivedi, Sri Rajive Ratn
Singh, Sri Amit Saxena, Sri Ajay Kumar
Mishra.

Counsel for the Opposite Party:
A.G.A.

A. Criminal matter-Code of Criminal
Procedure,1973-Section
374(2)-
&
Indian Penal Code,1860-Section 147,
323/149, 324/149, 302/149 & Arms
Act,1959-Section
25/27-challenge
toconviction-
accused
had
gone
after
abusing the complainant and again
returned to the site in question with the
preparedness
to
assault
on
the
informant and others in which a young
lad of 16 years has been done to death
and two persons from complainant side
received
injuries
and
their
injuries
cannot be disputed- Even their injuries
are fully corroborated by the medical
evidence.-Thus, on the basis of the
medical and ocular evidence- Both the
witnesses (PW-1 & PW-2) clearly
delineated the genesis and manner of
attacks-the prosecution has been able to
prove its case beyond reasonable doubt-
It is also not a case where injured
witnesses can be said to be planted oneWhere the evidence is clear, cogent and
creditworthy; and where the court can
distinguish the truth from falsehood, the
mere fact that the injuries on the person
of the accused are not explained by the
prosecution cannot, by itself, be a sole
basis to reject the testimony of the
prosecution witnesses.(Para 1 to 53)

B. As per the medical report, the injuries
on the body of two accused persons
were found to be `simple in nature'. On
the other hand, we have a complete
version
of
the
prosecution,
duly
supported by two injured eye witnesses
to
the
occurrence.
The
bone
of
contention between the parties was the
lifting of cow dung forcefully by the
accused
persons
and
the
verbal
altercations that had taken violent turn.
The prosecution story, as has been
disclosed
by
the
eye-witnesses,
is
trustworthy,
reliable
and
entirely
plausible in the facts and circumstances
of the case. The mere fact that there is
no specific explanation on record as to
how
two
accused
persons
suffered
injuries, would not vitiate the trial or the
case of the prosecution in its entirety.
Normal
rule
is
that
whenever
the
accused sustained injury in the same
occurrence in which the complainant
suffered the injury, the prosecution
should explain the injury upon the
accused. But, it is not a rule without
exception that if the prosecution fails to
give explanation, the prosecution case
must fail. There is no dispute on the
occurrence, time and place. Therefore, it
can be said with certainty that the
occurrence took place in the manner as
alleged by the prosecution, which is
supported with the testimony of two
injured witnesses. (Para 41)