Omprakash Pateriya vs State Of M.P.
2022 Latest Caselaw 4319 MP

                                    1

        THE HIGH COURT OF MADHYA PRADESH

                         CRA No. 15/2011
       (OMPRAKASH PATERIYA Vs STATE OF M.P. AND OTHERS)

Gwalior, Dated: 28.03.2022

      Shri Sanjay Gupta, Counsel for Smt. Asha Pateriya (wife of

appellant).

      Shri C.P. Singh, Counsel for State.

      Shri Sushil Goswami and Shri A.K. Jain, Counsel for

respondents No.2 & 3.

I.A. No.5117/2022 has been filed seeking permission to the

widow of appellant to continue the appeal.

It is submitted by Shri Gupta that appellant Omprakash Pateriya

has expired. The daughter of the complainant/appellant was killed by

the respondents No.2 & 3 who are her husband and mother-in-law. The

Trial Court by the impugned judgment has acqutitted respodents No.2

& 3 for offence under Section 302 of IPC and has convicted them for

offence under Section 304-B of IPC and present appeal has been filed

against acquittal of respondents No.2 & 3 for offence under Section

302 of IPC. Since her husband/complainant has expired, therefore, she

should be permitted to continue the criminal appeal No.15/2011 filed

under section 372 of Cr.P.C.

Per contra, application is vehemently opposed by Counsel for

respondents No.2 & 3. It is submitted that the applicant has not filed an

affidavit in support of the application and secondly under Section 394

of Cr.P.C, the period of limitation is 30 days and since this application

has been filed beyond the period of 30 days without there being any

application under Section 5 of Limitation Act, therefore, the

application should not be entertained.

Heard learned Counsel for the parties.

The present appeal has been filed by the complainant under

Section 372 of Cr.P.C. This is an appeal arising out of the charge-sheet

filed by the Police. The respondents No.2 & 3 were also tried for

offence under Section 302 of IPC. Victim has been defined under

Section 2 (wa) of Cr.P.C which reads as under :-

2. (wa) "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;

The proposed appellant who is the widow of complainant is also

the mother of deceased, therefore, not only she is the legal heir of

orginal appellant, but she can also be placed under the category of

victim being the mother of deceased. Further, Section 394 of Cr.P.C is

applicable in the case of death of an accused. Thus, the period of

limitation presribed under Section 394 of Cr.P.C would not be

applicable to the present case. Furthermore, this Court in excercise of

power under Section 473 of Cr.P.C. can also extend the period of

limitation.

Looking to the facts and circumstances of the case that proposed

appellant is the mother of the deceased and the present appeal has been

filed against acquittal of respondents No.2 & 3 for charge under

Section 302 of IPC, this Court is of the considered opinion that

application filed by Smt.Asha Pateriya seeking permission to continue

the appeal deserves to be allowed.

Accordingly, I.A. No.5117/2022 is allowed. Let necessary

amendment be carried out in the cause title.

The arguments in connected Criminal Appeal No.80/2011 have

begun but due to reference at 3:30 pm, the arguments could not

conclude.

Call on 29.03.2022.

                        (G.S. Ahluwalia)                         (Rajeev Kumar Shrivastava)
                            Judge                                         Judge
Aman
  AMAN TIWARI
  2022.03.29 11:11:37
  +05'30'