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D. Sudhakar Versus Panapu Sreenivasulu @ Evone Water Sreenivasulu and Ors.

2012 (12) TMI 1140 - ANDHRA PRADESH HIGH COURT

Legal heir - offences punishable under Section 302 r/w 149 I.P.C. - Held that:- Parties are Hindus and the law of heritance applicable to them is the Hindu Succession Act. Section 8 of the Hindu Succession Act sets out the general rules of succession in case of a male Hindu dying intestate, the property would devolve first up on the heirs specified in Class-I of the schedule and secondly, if there is no heir of Class-I, then up on the heirs specified in Class-II of the schedule; thirdly if there .....

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w 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 t .....

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come into force w.e.f. 31.12.2009, where the victim can prefer an appeal against acquittal. The appellant fails, and as such, the appeal is liable to be dismissed as not maintainable. In the result, the criminal appeal is dismissed as not maintainable. - Criminal Appeal No. 619 of 2012 - Dated:- 7-12-2012 - N.V. Ramana and P. Durga Prasad, JJ. For the Appellant: Sri. A. Tulsi Raj Gokul For the Respondent: Sri. M. Rama Rao, Smt. D. Sangeetha Reddy JUDGMENT N.V. Ramana, J. 1. The appellant, who cl .....

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victim, and having regard to the definition of the word 'victim', as defined in Section 2(wa) Cr. P.C., and the proviso appended to Section 372 Cr. P.C., at his instance, criminal appeal, against the order of a criminal court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, is maintainable. 2. On the other hand, the learned counsel for the respondents-accused submitted that as per the proviso appended to Section 372 Cr. P.C., only the victim .....

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ccused, is not maintainable. In support of this argument, he placed reliance on the judgment of the Apex Court in National Commission for Women v. State of Delhi and of the High Court of Kerala in John v. Shibu Cherian 2011 Laws (Ker.) 8-44. 3. Heard the learned counsel for the appellant-de facto complainant and the learned counsel for the respondents-accused. 4. In the light of the arguments advanced by them before us, we would like to deal with the amendment to Section 372 Cr. P.C. and the cha .....

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or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power. 2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the fami .....

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ned in the above Declaration of the United Nations. While laying special emphasis on the subject of "Victimology", the Law Commission, has observed that right from the ancient Babylonian Code of Hammurahi (about 1775 BC) it has been observed that victim of crime was left with no remedy except to sue for damages in the civil Court. It has also been noted that in Anglo-Saxon legal system an English Magistrate, advocated state compensation to be given to the victims of crime and according .....

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without remedy either of filing of appeal or challenging the inadequate compensation which was awarded. The Legislature having taken cognizance of this shortcoming, based on the report of the Law Commission, felt it appropriate and accordingly, by Act 5 of 2009 amended Section 372 Cr. P.C., by adding a proviso. The amendment came into force w.e.f. 31.12.2009. Now after the amendment Section 372 Cr. P.C. reads as follows: 372. No appeal to lie unless otherwise provided. - No appeal shall lie fro .....

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ht has been given in those cases where inadequate sentence is imposed or awarded by the trial Court and the right is retained with the State. Now after addition of the proviso, right is given to the victim to file appeal in cases where the accused is acquitted or is convicted for a lesser offence or where the compensation which is imposed is found to be inadequate. 9. Now the question is who is a "victim"? The word "victim", is defined under Section 2(wa) Cr. P.C., and it rea .....

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Cr. P.C., 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 treated as victim, which expression, includes his or her guardian or legal heir. 11. In this backdrop the question that arises for consideration before this Court is: Whether the appellant who is the de facto complainant and brother of the deceased, can maintain this appeal against acquittal in view of amendment to Section 372 Cr. P.C. and as per S .....

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gone. The State represented by the learned Additional Solicitor General reported that the State is not proposing to file any application for leave to appeal against the said judgment. The accused, in spite of service of notice, did not enter his appearance. The counsel for the National Commission for Women submitted that notwithstanding the fact that the State did not file any appeal in the matter, still appeal at the instance of the Commission was maintainable under the inherent powers of the A .....

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vided by the Code or by any other law which authorizes an appeal. The proviso inserted by Section 372 (Act 5 of 2009) with effect from 31.12.2009, gives a limited right to the victim to file an appeal in the High Court against any order of a criminal court acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a r .....

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strate, acquitting the accused of the offences punishable under Sections 114, 143, 147, 148, 443, 427 and 506(ii) read with Section 149 I.P.C. along with application to condone the delay in preferring the appeal. The respondents-accused, entered their appearance upon receipt of notice. After the delay being condoned, the appeal came up for admission, and at that stage, the respondent-accused, raised preliminary objection about maintainability of the appeal itself, having regard to the proviso to .....

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erred by the de facto complainant before this Court is not maintainable.... 15. The Kerala High Court further noticed that prior to the amendment, the Court used to entertain the revision petition in deserving cases against the order of acquittal at the instance of the de facto complainant, and having regard to the stand taken by the appellant in the affidavit filed in support of the condone delay petition that he preferred revision, but the Registry raised objection that the remedy is to file a .....

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insertion of the proviso to Section 372 Cr. P.C. is prospective or retrospective in nature. 17. First we would like to deal with the issue, who is a "heir". The word "heir" has been interpreted by the Supreme Court in several cases which means all persons who are entitled to the property of another under the law of inheritance. In Section 2(wa) of Cr. P.C., since the word heir is preceded by the word "legal", it must be construed in the legal sense as that is the cl .....

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up on the heirs specified in Class-I of the schedule and secondly, if there is no heir of Class-I, then up on the heirs specified in Class-II of the schedule; thirdly if there is no heir of any of the classes, then up on the agnates of the deceased and lastly if there are no agnates, then up on the cognates of the deceased. Section 9 of the Hindu Succession Act provides the order of succession amongst heirs in the schedule. Those in Class-I take simultaneously and to the exclusion of all other h .....

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