Institute of Legal and Management Studies

The Supreme Court has held that when a victim dies during the pendency of an appeal against an accused's acquittal, the victim's legal heirs can step in as substitutes to prosecute the appeal originally filed by the deceased victim.

The Court said that the right to appeal of a victim under the proviso to Section 372 Cr.P.C. would become redundant if the victim's legal heirs cannot be substituted for the purpose of prosecuting the appeal against the acquittal.

“Any curtailing of the legal right to prosecute an appeal on the death of an original appellant by his legal heir would make the proviso to Section 372 CrPC wholly redundant and in fact may result in a situation which is contrary to the entire object with which the Parliament had inserted the proviso to Section 372 CrPC. In this context, it is also relevant to note that the Parliament has been conscious to expand the definition of the word 'victim' to not only include the victim himself who had suffered the loss or injury but also to include his legal heir. When a legal heir, who is not a complainant or an injured victim, can prefer an appeal then why not his legal heir on the death of the legal heir who had preferred the appeal be permitted to prosecute the appeal? We see no reason to curtail the right of a legal heir, who had preferred the original appeal, to be denied the right to prosecute the appeal. In the instant cases, the applicant, who is seeking substitution, is the legal heir of the victim who had preferred the appeal before this Court and is also an injured victim.”, the court said.

The bench comprising Justice B.V. Nagarathna and Justice K.V. Viswanathan dealt with a matter wherein, following the acquittal of the accused, the deceased's son, who was also a victim, preferred an appeal against acquittal. During the pendency of the appeal, the deceased's son passed away. Thereafter, his son, i.e., the deceased's grandson (also a victim), sought substitution in place of his late father in order to continue the prosecution of the appeal. The accused, however, contended that the appeal stood abated upon the death of the appellant's father

The accused argued that under Section 394(2) of the CrPC, "every other appeal" (other than those by the State) abates on the death of the appellant. The proviso to this section allows a "near relative" to continue an appeal only if the deceased appellant was a convicted accused. They contended that this right does not extend to appeals filed by a victim.

Rejecting such contention, the judgment authored by Justice Nagarathna held that the proviso to Section 372 CrPC introduced by the 2009 amendment gives victims an independent right to appeal against acquittal. This right, the Court said, extends to legal heirs under the definition of “victim” in Section 2(wa) CrPC. If heirs can file an appeal, they must equally be entitled to prosecute an appeal already filed by a deceased victim, otherwise, the right would be rendered illusory.

“We are conscious of the fact that the applicant who is seeking substitution in the instant case is not only the son and heir of the original appellant who preferred these appeals but is also an injured victim in the incident which occurred on 09.12.1992 in respect of which these appeals have been filed. Therefore, the applicant could have filed these appeals assailing the judgment of acquittal passed by the High Court in his individual capacity as an injured victim. However, the applications for substitution have been filled in order to continue the prosecution of these appeals as the heir of the original appellant who was also an injured victim. Hence, the detailed discussion that we have made is in acceptance of the argument of learned counsel for the applicant that as heir of the original appellant, who was an injured victim, he can prosecute these appeals. Therefore, the applicant is being permitted to be substituted in place of the original appellant as heir of the original appellant (who was a victim in the incident). In other words, we observe that even if the applicant was not an injured victim in the said incident but has sought to prosecute these appeals as heir of the injured victim (original appellant), he is permitted to do so. We therefore say, coincidentally, the applicant is also an injured victim in the incident. In view of the above discussion, we do not accept the contention of learned senior counsel for the respondent-accused that the applicant herein would have to separately file appeals before this Court as an injured victim and in that capacity only and not as heir of the original appellant.”, the court said.

The Court added :

“The proviso to sub-section (2) of Section 394 CrPC however, states, that even if the accused-appellant dies during the pendency of the appeal, any of his near relatives may continue the appeal and the appeal may not abate. In other words, the heirs of the deceased accused-appellant have been permitted to continue the appeals so as to seek an acquittal and realise the fruits of such an acquittal which could be even in monetary terms despite the death of the accused-appellant.”

“If the same logic is to apply to the proviso to Section 372 CrPC, it would imply that the heirs of a victim can also pursue an appeal filed under that provision as the definition of victim under Section 2(wa) includes the heir of a victim.”, the court added.

“In the circumstances, we find that in the instant case, the applicant, being heir of the victim, has the right to continue these appeals irrespective of the fact that he is an injured victim. In that view of the matter also, we find that the application for substitution has to be allowed.”, the court held.

Accordingly, the appeal was allowed, remanding the case to the High Court, with a direction to rehear the appeals filed by the respondents/accused respectively in these appeals by also giving an opportunity to the appellant herein to make his submission in the said appeals as well as the State to make its submission in the matter.

Cause Title: KHEM SINGH (D) THROUGH LRs VERSUS STATE OF UTTARANCHAL (NOW STATE OF UTTARAKHAND) & ANOTHER ETC.

Citation : 2025 LiveLaw (SC) 828

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Appearance:

For Appellant(s) : Ms. Neema, AOR Mr. Aruni Poddar, Adv. Mr. Ekta Muyal, aDv. Mr. Anit Kumar, Adv. Mrs. Shivani Kumari Adv.

For Respondent(s) : Mr. Manan Verma, AOR Dr. Ajay Veer Pundir, Adv. Ms. Anu Gupta, AOR Mr. Ali Jethmalani, Adv. Ms. Sanjana Wason, Adv. Mr. Ratnakar Dash, Sr. Adv. Mr. Anurag Tomar, Adv. Mr. Rameshwar Prasad Goyal, AOR Mrs. Kawaljit Kochar, Sr. Adv. Mr. Bhargava V. Desai, AOR Mr. Anil Makhija, Adv. Mr. Shivam Sharma, Adv. Mr. Deepanshu, Adv. Mr. Utkarsh Vats, Adv.