Shameer vs Riyas

Thottathil B. Radhakrishnan, J.—This appeal against an order of acquittal is filed invoking the proviso to S. 372 of Cr.P.C. inserted into the Code by Act 5 of 2009. The appellant is the first informant. He was examined as P.W. 2. He is the brother of the person whose death led to the sessions case from which this appeal is filed. We have heard the learned counsel for the appellant and the learned Public Prosecutor on the question of right, if any, of the appellant to invoke the proviso to S. 372.

The right to prefer an appeal under the proviso to S. 372 is conferred on the victim. S. 2(wa) of the Code provides 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. Though the appellant is the brother of the victim who allegedly died as a result of the incident, the appellant is in no way demonstrated to be a "legal heir" for the purpose of S. 2(wa). Therefore, the appellant does not fall within the term "victim" in S. 2(wa) and therefore, does not have any right of appeal referable to the proviso to S. 372 of the Code. Hence, this appeal fails on that technical ground. The failure of this appeal on the aforenoted ground does not preclude the appellant from seeking any other remedy in accordance with law. It also would not preclude any other person eligible to seek relief as against the impugned order of acquittal, to do so in accordance with law.

In the result, this appeal is dismissed at the threshold, as not maintainable.