IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.582 of 2011 Guru Prasad Yadav son of late Lakhan Yadav, resident of village-Sohjana, P.S.-Jhajha, District-Jamui …….. …….. Appellant Versus 1.The State of Bihar 2.Nepali Yadav 3.Parmeshwar Yadav 4.Tulsi Yadav All sons of late Shital Yadav 5.Dharmendra Yadav son of late Shital Yadav 6.Banti Kumar Yadav son of Sri Tulsi Yadav 7.Karu Yadav son of Sri Nepali Yadav All Sl. No.2 to 7 are resident of village-Sohjana, P.S.-Jhajha, District-Jamui ……. ……..Respondents ----------- For the appellant: Mr.Prakash Mahto For the State : Mr. S.C. Mishra, A.P.P. ---------- 4 02.08.2011 The appellant claiming himself as a victim has filed the instant appeal against the judgment and order dated 23.5.2011 passed by Sri Anand Singh, A.D.J.,(F.T.C. No. -1), Jamui in Sessions Trial No. 264 of 2006/Tr. No. 136 of 2009, whereby the respondents, Nepali Yadav, Parmeshwar Yadav, Dharmendra Yadav, Banti Kumar Yadav and Karu Yadav acquitted of the charges framed against them under Sections 147, 148, 323, 324, 379 and 307/149 of the Indian Penal Code. Heard learned counsel for the appellant and also perused the judgment of acquittal passed by the trial court. The witnesses examined on behalf of the prosecution are inconsistent on material points. The ocular evidence adduced on behalf of prosecution is not supported at all by medical evidence. No injury by Bhujali or Sword has been found on the person of any of the injured witnesses whereas the allegation is of indiscriminate assault upon them by the accused 2 persons, who were also armed with Bhujali and Sword. There is no evidence of any serious injury. No other injury caused by Lathi either upon the informant or upon any injured family members was found whereas the allegation is that the accused persons indiscriminately assaulted upon them, as a result of which they all became unconscious. There is also no medical evidence to support the allegation of strangulation, twisting of neck or of causing any injury on the chest of the informant. Enmity between the parties stands admitted. No independent witness has come forward to support the prosecution case. The Investigating Officer has not been examined. Non-examination of I.O. of this case has caused serious prejudice to the defence as most of witnesses have been suggested by the defence that they were not present at the time of occurrence or their statement was never recorded by the Police. The prosecution has not come with clean hands and the defence has been able to demonstrate that a counter case was also instituted on the same day against the members of the prosecution party as they were aggressor. The trial court on the basis of appreciation of evidence led by the prosecution and the defence came to a finding that the prosecution had miserably failed to prove their case against the accused persons and thus acquitted the accused persons and discharged them from liability of their bail bonds. Against the aforesaid judgment of acquittal, the informant has filed the instant appeal under Section 372 of the Code of Criminal Procedure (hereinafter referred to as “the code”), claiming himself to be the victim without moving any application for grant of leave to 3 appeal. On query put to the learned counsel for the appellant about maintainability of the instant appeal, it was argued that proviso to Section 372 has been inserted by Code of Criminal Procedure (Amendment) Act, 2008, which was introduced with effect from 31.12.2009, which confers a right on the victim of the crime to prefer an appeal against the order passed by the trial court acquitting the accused. Thus, learned counsel for the appellant argued that under Section 372 of the Code the victim can directly file an appeal against the order/judgment of acquittal without seeking leave to appeal from the court as the provision of sub-Section (3) of Section 378 of the Code will not apply to an appeal filed by the informant under Section 372 of the Code. Here, I think it proper to quote the proviso which has been added to Section 372 of the Code: “Provided that a victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence of imposing inadequate compensation, and as such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.” Prior to introduction of the said proviso to Section 372 of the Code, the victim as such did not have any statutory right of appeal. Section 374 of the Code has provided for a „convict‟s‟ right of appeal against conviction. Section 377 of the Code enables the State Government or the Central Government to file an appeal with regard to inadequacy of sentence. This appeal provision was, however, 4 conditional upon the fact that there could be no enhancement without an opportunity to the accused and that in case such an appeal was preferred, the accused had a right to plead for acquittal and/or for reduction of sentence in that very appeal. Apart from this, under Section 378 two streams of appeals against acquittal were provided. The first stream was of appeal against the acquittal by the State Government/Central Government and the same would fall under sub- section (1) and (2) of section 378. However, before such an appeal is entertained, leave of the High Court has to be taken by virtue of provision of section 378(3). The other stream is in the case of complaint wherein, by virtue of section 378 (4), the complainant has to seek special leave to appeal from the High Court. Here, I may point out that in case special leave application filed by the complainant is rejected, then this also precludes the State Government/ Central Government from filing an appeal against acquittal under Section 378 (1) & (2). This clearly stipulates in section 378 (6) of the Code. By proviso to section 372 of the Code, a right has been conferred to the victim to prefer an appeal against the order of acquittal being sufferer from the act or commission of the offender. The main provision of section 372 provides that no appeal shall lie from the order of acquittal as provided for by this Court or by any other law for the time being in force. So, by the proviso, a right to file an appeal has been conferred upon the victim against the order of acquittal, but the procedure for filing such appeal will be the same as provided under Section 378 of the Code. Therefore, even if the victim has a right to prefer an appeal against the order of acquittal, he has to seek leave of 5 the High Court to prefer such an appeal. The Hon‟ble Supreme Court in case of State of Rajasthan Vs. Ramdeen reported in A.I.R. 1977 SC 1328 has held that in filing an appeal against acquittal the prayer for leave may be included in the memo of appeal. Here, I find that the appellant has not prayed for leave even in memo of appeal. In my opinion, the appeal is not maintainable without any application for grant of leave. Leaving apart technicalities, I have gone through the judgment of the trial court and have heard the counsel for the appellant. In my view, the trial court has rightly come to a conclusion that the prosecution has miserably failed to prove the charges levelled against respondent no. 2 to 7. The trial court has neither erred in law nor on facts. There is no misappreciation of evidence. The trial court acquitted the appellant after having found the prosecution witnesses relied upon to be unreliable for the reasons recorded by it. The trial court considered the evidence of witnesses and pointed out infirmities in their evidence which discredited their testimony. The appreciation of evidence by trial court is neither perverse nor finding recorded by it is not supported by evidence on record. In the result, the present appeal, being devoid of any merit, is dismissed. Navaniti Prasad Singh,J. I agree ( Ashwani Kumar Singh, J.) (Navaniti Prasad Singh,J.) Md.S.