HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 396 of 1981 Court No. - 87 HON'BLE ABDUL SHAHID, J. 1. Heard Sri Ravi Prakash Srivastava, learned counsel for the opposite party no.3/Rohan and the learned A.G.A. for the State. 2. This criminal appeal has been preferred against the order of acquittal dated 28.2.1979, passed by IVth Additional Munsif Magistrate-Ist Class, Etah, in Criminal Case No. 1284 of 1978 (Rajpal Vs. Doongar Singh and others) acquitting the accused Doongar Singh, Suraj Pal and Rohan, under Section 435 IPC. 3. On 25.8.2025, the following order was passed :- "1. As per office report dated 10.02.2022, appellant Rajpal Singh died on 14.03.2021, opposite party no.1 Doongar Singh died thirty years before and opposite party no.2 Suraj Pal Singh died twelve years before. 2. Let notices be issued to heirs of appellant Rajpal Singh in regard to pendency of present appeal and for substitution of heirs in the present case. 3. List after service of notice. " 4. As per the office report dated 18.02.2026, based on the letter of the learned Chief Judicial Magistrate, Etah, dated 26.09.2025, the heir (son) of the deceased appellant, Rajpal Singh, has made a statement on oath that he does not wish to pursue the matter further. 5. Section 378(4) Cr.P.C. provides that if such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. 6. Section 372 Cr.P.C. provides that no appeal to lie unless otherwise provided. No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code by any other law for the time Versus Counsel for Appellant(s) : Kamleshwar Singh Counsel for Respondent(s) : A.G.A., Ravi Prakash Srivastava, S.K.Kulshehtra Raj Pal Singh .....Appellant(s) Doongar Singh And Others .....Respondent(s) being in force:[Provided that the 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 or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.] [Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009), Section 29, with effect from 31.12.2009.] Act 11 further provides that the victim shall have the right to prefer an appeal against any order passed by the Court acquitting the accused, convicting the accused for a lesser offence, or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. 7. The Division Bench of this Court had passed an order in Criminal Misc. Application U/S 372 CR.P.C (Leave to Appeal) No. - 329 of 2012 (Prithvi Singh Vs. State of U.P. and others) on 21.4.2022 holding that we are, therefore, in respectful agreement with the view taken by the Punjab and Haryana High Court in Avtar Singh Dhesi (supra) that the appeal filed under Section 372 Cr.P.C. 1973 would stand abated on the death of the appellant. 8. In paragraph 7 of the said judgment it is held by the Division Bench of this Court that Punjab and Haryana High Court in Avtar Singh Dhesi vs. Ajaib Singh (Jabba) 2015 SCC Online P & H 10017 decided on 12.5.2015 taking a different view of the matter, although taking note of the judgment of Hon'ble Apex Court in Khedu Mohton (supra), held that the appeal would abate. The aforesaid judgment dated 12.5.2015 is quoted as under:- "The present appeal against the judgment dated 11.11.2014 was preferred by the complainant on whose complaint a First Information Report No.20 dated 05.03.2008 for the offences under Section 364, 342, 384, 506, 323, 148, 149 of Indian Penal Code was lodged. After the filing of appeal, the complainant died even before the appeal came up for motion hearing. Admittedly, no legal heir has come forward to continue with the present appeal. 2. Learned counsel for the appellant argues that even in the absence of any legal heir, this Court is bound to decide appeal on merits as the provisions of Section 394 of Criminal Procedure Code 1973 (for short 'Code'), deals with abatement of appeals only on account of death of accused. Since there is no provision for abatement of appeal filed on behalf of the complainant, therefore, the appeal is bound to be heard and decided on merits. He relies upon an order passed by the Hon'ble Supreme Court in a judgment reported as AIR 1971 SC 66 titled Khedu Mohton and others v. State of Bihar and GULATI DIWAKER 2015.05.14 14:26 I attest to the accuracy and authenticity of this document order passed by a Division Bench of this Court reported as 1963 PLR 191 titled Dr. Megh Raj v. Shri Joginder Singh and others. 3. We have heard learned counsel for the appellant and find no merit in the said argument. Section 394 of the Code reads as under:- "394. Abatement of appeals. (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. CRLA No. 396 of 1981 2 (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate." 4. Sub-Section (1) of Section 394 of the Code deals with an appeal filed under Section 377 and 378 of Code i.e. appeal by the State against conviction and sentence and appeal in the case of acquittal. Such appeal would abate on the death of the accused. Whereas sub-Section (2) contemplates that all other appeals shall abate on the death of the appellant. Since the State has continuous existence, it is bound to prosecute an appeal filed. Thus, such an appeal would abate only on death of the accused. 5. But all other appeals i.e. other than the appeals preferred by the State under Section 377 or 378 of the Code would abate on the death of appellant in terms of sub-Section (2) of Section 394 of Code. 6. The judgments referred to by learned counsel for the appellant are not applicable to the facts of the present case. In Khedu Mohton's case (supra), the appeal was preferred by the State against the acquittal; therefore, while interpreting Section 431 of Criminal Procedure Code, 1898 corresponding to Section 394 of the Code, it has been observed that the appeal would abate only on account of death of accused. 7. Similarly, in Dr. Megh Raj's case (supra), the complaint was filed by the appellant and resulted into acquittal of the respondents. During the pendency of the appeal, Dr. Megh Raj died. Considering Section 431 of Criminal Procedure Code, 1898, it was held that all appeals preferred by an accused person must abate on his death. So far as the appeals against acquittals are concerned, it is laid down that they must also abate if the accused dies but death of the appellant in an appeal against acquittal, however, would not affect the continuation of the appeal. The Court held that the appeal by the complainant is saved from abatement under Section 431 of Criminal Procedure Code, 1898. 8. We do not find that such judgment advances the argument raised by the appellant in view of sub-Section (2) of Section 394 of Code which provides that all other appeals shall abate on the death of the appellant Thus, the death of the appellant during the pendency of appeal will entail abatement of appeal. 9. Consequently, the present appeal stands abated." 9. In view of the discussions made above, and particularly in light of the law laid down by the Division Bench of this Court, the present appeal stands dismissed as having abated. February 19, 2026 M. Tarik CRLA No. 396 of 1981 3 (Abdul Shahid,J.) Digitally signed by :- MOHD TARIK High Court of Judicature at Allahabad