U.B. Saha, J.

(1) The instant application is filed by the petitioner under Section 5 of the Limitation Act for condoning the delay of 114 days in filing the connected appeal against the judgment and order dated 30. 9. 2010 passed by the learned Sessions Judge, Udaipur, South Tripura in ST 37 (S. T. /u)/2009 whereby and whereunder the learned Sessions Judge acquitted the respondents 2 and 3 from the charges levelled against them under Section 302 read with 34 IPC.

(2) The petitioner is the father of deceased Pooja Debnath (Das) who got married with respondent No. 2, Chandan Das.

(3) The petitioner has filed the connected appeal against the aforesaid judgment of acquittal under proviso to Section 372 read with Section 378 of Criminal Procedure Code, (hereinafter for short as code), claiming to be a victim.

(4) Heard Mr. S. Kar Bhowmik, learned Counsel for the appellant petitioner as well as Mr. Somik Deb, learned Counsel for the respondent No. 2 and 3 who at the very outset has raised question of maintainability of the instant petition on the ground that the petitioner is not the victim as defined under Section 2 (wa) of the Code and unless he is a victim, he has no locus to file the connected appeal and when right to appeal is not there, right to file condonation petition is also not there.

(5) The brief facts of the case needed to be discussed for disposal of the instant condonation petition are as under: The petitioner had given marriage of his daughter, Pooja, to Sri Chandan Das, the respondent No. 2 herein, who has been implicated as the accused in the sessions case, in accordance with Hindu rites and customs and it is alleged that while the daughter of the petitioner was residing in the house of the petitioner, she was killed by throttling. Thereafter, the petitioner lodged an information with Maharani outpost under R. K. Pur P. S alleging, inter alia, that his daughter Pooja was tortured both mentally and physically by the respondent No. 2, his son in law and other in-laws of his deceased daughter and they also put pressure upon her to fetch Rs. 50,000/- from him. Ultimately he paid Rs. 20,000/- to the respondent No. 2 in installments. But the respondent No. 2 and other in-laws of his daughter were not satisfied with such amount and they continued to torture on his daughter and due to such torture, she was compelled to leave her matrimonial house and take shelter in the house of the petitioner. Thereafter, on 14. 11. 2006, in the absence of the petitioner and his wife, the accused respondents entered into their house and killed their lone daughter by throttling and when they were fleeing away from their house, wife of the petitioner could recognize two of them, who were the respondent No. 2 and 3 i. e. the husband of the deceased Pooja and his brother.

(6) Upon receipt of the information about murder of pooja, the police registered R. K. Pur P. S case No. 458 of 2006 under Sections 498 (A) and 304 (B) IPC against the respondent No. 2 and 3, Chandan Das and his brother Nimai Das respectively and on completion of investigation filed charge sheet against the aforesaid accused respondents under Sections 498 (A) and 304 (B) IPC. But finally, the Court after hearing the parties and considering the evidence on record framed charge under Section 302 and 34 IPC and after trial acquitted both the respondent No. 2 and 3 on benefit of doubt.

(7) As the State did not prefer any appeal against the order of acquittal under Section 378 Cr. P. C. , the petitioner preferred a revision petition before this Court, being Rev. Pet. No. 7 of 2011, which was taken up by the learned Single Judge on 28. 4. 2011 as motion. At the time of motion hearing, the learned Counsel for the petitioner submitted that the petitioner was not willing to press the application for revision and he wants to withdraw the same as he has already filed an appropriate appeal before this Court which is also pending.

(8) The learned Single Judge upon hearing the learned Counsel for the petitioner as well as the learned Counsel for the respondent No. 2 and 3 herein, who were also the respondents in the revision petition, disposed of the revision petition as not pressed. Hence the instant petition for condoning the delay in preferring the connected appeal which was filed before withdraw of revision petition along with a petition for leave to prefer appeal as required under Section 378 of Cr. P. C.

(9) As Mr. Deb has raised the question of maintainability of the instant condonation petition, consequent thereto, leave to appeal as well as the connected appeal, it would be proper for us to record his submission first before dealing with the reasons for condoning the delay and the grounds for preferring appeal.

(10) At the very outset, Mr. Deb submits that the petitioner is not a victim as defined under Section 2 (wa) of the Code and unless a person is a victim as defined in Section 2 (wa), he has no right to appeal under Section 372 Cr. P. C, as the said provision was made only for the victim, not to any other person and unless the right to appeal is available under the provisions of Code, right to prefer for condoning the delay is also not available.

(11) He further contended that in the instant case, the deceased is the wife of the respondent No. 2 and if anybody is victim that is only the deceased and subsequent to her, the respondent No. 2 being the husband of her, as both of them were issue less at the time of alleged incident of murder and after the husband, his family members, not other family members of the deceased. In support of his aforesaid contention, he also placed reliance on Section 15 and 16 of the Hindu Succession Act, 1956 as the word victim used in Sec. 2 (wa) of the Code also includes his or her guardian or legal heirs.

(12) His second ground of submission is, inter alia, that right to appeal is a substantive right, not a procedural right and substantial right cannot be given retrospective effect, it is always prospective one. In the instant case, the proviso to Section 372 Cr. P. C. was inserted by way of amendment which was given effect on and from 31. 12. 2009 and the alleged incident of murder took place on 14. 11. 2006. Therefore, the proviso to Section 372 as amended has no application in the instant case. Thus petitioner is not entitled to prefer any appeal against the order of acquittal by the trial Judge.

(13) In support of his aforesaid contention, he placed reliance on the decision of the Apex Court in National Commission for women Vs. State of Delhi and Anr. : (2010) 12 SCC 599 , particularly, he para-8, which reads as follows:

"8. Chapter XXIX of the Code of Criminal Procedure deals with appeal (s). Section 372 specifically provides that no appeal shall lie from a judgment or order of a criminal court except as provided 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 right only on a victim and also does not envisage an appeal against an inadequate sentence. An appeal would thus be maintainable only under Section 377 to the High Court as it is effectively challenging the quantum of sentence. "

(14) Mr. Deb also relied upon a decision of the Apex Court in Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors. , (1994) 4 SCC 602 , particularly, para-26 which is as follows:

"26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. "

(15) The Apex Court noted that law relating to forum and limitation is procedural in nature whereas law relating to right of action and right of appeal even though remedial is substantive in nature and every litigant has a vested right in substantive law but no such right exists in procedural law, he contended.

(16) Mr. Deb also relied upon another decision of the Apex Court in Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and Ors. , (1999) 8 SCC 16 wherein the Apex Court taking note of Garikapati Veeraya Vs. N. Subbiah Choudhry, AIR 1957 SC 540 observed inter alia, that -

"the golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. "

(17) The Apex Court also in the said judgment took note of Hitendra Vishnu Thakur (supra), and ultimately stated that:

"we are unable to accept the contention of the respondent State that Section 6 of the amending Act of 1974 is retrospective. In sub-section (2) of Section 1 the legislature clearly stated that the Act would come into force at once i. e. from the date of publication in the Gazette. Neither in Section 6 nor in any other section of the amending Act was it mentioned that the Act would have retrospective effect. If we hold that the Act would have retrospective effect it would go against the intention of the legislation. "

(18) Referring to the aforesaid judgment of Maharaja Chintamani Saran Nath Shahdeo (supra), Mr. Deb would again contend that in the instant case also, the Legislature specifically mentioned that the amendment of Section 372 Cr. P. C would come into force on and from 31. 12. 2009. Therefore, this Court should not consider such amendment with retrospective effect to provide the benefit to the present petitioner.

(19) To prove his contention that the present petitioner is not a victim, he has placed reliance on a decision of the Delhi High Court dated 7. 1. 2011 in Chattar Singh Vs. Subhash and Ors. , in Crl. A. 443 of 2010 wherein primary question arose regarding the maintainability of the appeal preferred by the father of the deceased in that case wherein the Delhi High Court held that father of the deceased in that case is not the victim, as defined in Section 2 (wa) of the Code.

(20) He also placed reliance on a decision of the High Court of Punjab and Haryana in the case of Smt. Ram Kaur @ Jaswinder Kaur Vs. Jagbir Singh @ Jabi and Ors. , in Crl. Appeal No. 205 of 2010 wherein the Punjab and Haryana High Court while considering the word victim took note of 154th Report of Law Commission. The word victim was also defined as under: - "6. 2. The Declaration defines victim as "person who, individually 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. " And also noted that under the Code, the appeal against acquittal could have been preferred only with the permission of the High Court on an application filed for grant of leave to appeal against the order of acquittal. By proviso to Section 372 of the Code, a right has been conferred upon the victim to prefer an appeal against the order of acquittal being sufferer from the act or omission of the offender. But such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. The main provision of Section 372 provides that no appeal shall lie from the order of acquittal except as provided for by this Code or by any other law for the time being in force. So by the proviso, a right to file an appeal has been conferred on 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 the leave of the High Court to prefer such an appeal".

(21) In the instant case, the petitioner has admittedly filed an application for granting leave to prefer appeal against the order of acquittal of accused respondent No. 2 and 3. . Therefore, it is not necessary on our part to discuss so far as the application for granting leave as required under Section 378 with reference to Section 372 of the Code is concerned.

(22) He finally contended that the present condonation petition and consequent thereto, the connected appeal against the judgment impugned is also not maintainable on the ground that the petitioner on earlier occasion approached this Court by way of filing a revision petition and subsequently, he withdrew the same without taking any liberty for preferring an appeal before the appropriate Court. In support of his aforesaid contention, he relied upon a decision of the Apex Court in K. Ramachandran Vs. V. N. Rajan and Anr. , (2009) 14 SCC 569 , particularly, he para-10,12 and 13 which are reproduced hereunder:

"10. Very strangely, at the time when the condonation of delay application in filing the appeal was considered by the High Court, it was not pointed out by the Government Advocate on criminal side who appeared for the State, that a revision had already been filed and was pending against the acquittal, at the instance of the father of Nalini. Now, in fact the State Government was very much a party in that revision and was also served. After all, the said revision was admitted by the High Court. However, since the Division Bench was totally unmindful of the pendency of the said revision it merely dismissed the condonation of delay application. We have seen that order. That is an order merely refusing to condone the delay and there is nothing in the order to suggest that the High Court ever considered the merits of the order of the trial court.

12. The learned counsel appearing on behalf of the appellant-accused firstly contended that the effect of dismissal of the condonation of delay application was the dismissal of appeal. It was pointed out that the Division Bench which considered the matter had made an observation in the order to the effect that the appellant-accused was already acquitted in the year 1999 and, therefore, to condone the delay and to admit the appeal would cause prejudice to him. The counsel, therefore, urged that this revision should have been dismissed.

13. Learned counsel for the complainant, however, argues that the revision was filed prior in time as compared to the appeal filed against acquittal and the said revision was also admitted by the High Court. Further, the High Court had no occasion to consider the merits of the matter as it proceeded to dismiss the application for condonation of delay. If that was so, there was nothing wrong in the learned Judge considering the revision on its merits. "

(23) He also placed reliance on the decision of the Apex Court in N. T. Devin Katti and Ors. Vs. Karnataka Public Service Commission and Ors. , (1990) 3 SCC 157 wherein the Apex Court considered when an amended Rules would be given effect with prospective or retrospective effect, particularly, he para-11 of the said judgment, which are quoted hereunder:

"11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallizes on the date of publication of advertisement, however, he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any rested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature. "

(24) On the same point, he also placed reliance on the decision of the Apex Court in P. Mahendran and Ors. Vs. State of Karnataka and Ors. , (1990) 1 SCC 411.

(25) Mr. S. Kar Bhowmik, learned Counsel while dislodging the submission of Mr. Deb, regarding the question of maintainability distinguished the case by Mr. Deb. While distinguishing the cases decided by the Apex Court in Hitendra Vishnu Thakur and ors (supra), he would contend that there is no doubt that the right to appeal is a substantive right, but to achieve that right, certain procedures have to be followed and the procedure is prescribed in proviso to Section 372 of the Code wherein the Legislature provided some extra benefit and new right which was earlier not there in the Code to the persons who has suffered injury and loss on account of a crime caused either nearest or dearest person to them or any other person with whom they are connected i. e. like the petitioner who is very much concerned to know the reasons for the death of his daughter.

(26) In the instant case, right to appeal of the petitioner had accrued only after the decision in the sessions trial where the respondent No. 2 and 3 were acquitted on 30. 9. 2010, whereas admittedly the effect of the amendment of Section 372 was given on and from 31. 12. 2009 i. e. prior to delivery of the judgment in the trial whereby and whereunder the respondent 2 and 3 were acquitted. Therefore, even if the amendment is given effect prospectively, then also the petitioner is entitled to prefer an appeal in view of the right accrued to him on the basis of amendment of the Code only after the order of acquittal and thus the case of Hitendra Vishnu Thakur (Supra) has no bearing so far as the case in hand is concerned, wherein the Apex Court held that the statute which affects substantive right is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. In the instant case, the petitioner is not asking for providing any extending meaning of the amendment of the Code, rather the right of the petitioner accrued only on 30. 9. 2010, not prior to that.

(27) In the case of National Commission for Women (supra), the question of locus of the National Commission for women came into consideration before the Apex Court and secondly in that case, the Court considered mainly what should be the procedure when inadequacy of sentence is concerned. Ultimately, the Apex Court held that Section 377 Cr. P. C is the provision for raising voice against inadequacy of sentence either by the State Government or by the Central Government which can issue a direction to the Public Prosecutor to present an appeal before the Court of Sessions or the High court on the ground of inadequacy of the sentence and the said section does not in any manner authorize an appeal to the Supreme Court.

(28) Therefore, the learned Counsel Mr. Bhowmik while distinguishing the case of National Commission for Women (supra) would contend that the fact of that case is totally different than the case in hand. According to him, in that case, National Commission for women wanted to intervene by way of preferring the appeal to protect the interest of another woman, as the sentence awarded was not sufficient, but not by the father of the deceased like the petitioner herein. More so, the National Commission for women approached the Apex Court without approaching the High Court under Section 377 of the Code, which is the appropriate forum.

(29) It would be evident from Para-15 of the judgment of National Commission for Women (supra) wherein it is stated, inter alia,

"a reading of the aforesaid excerpts from the two judgments would reveal that while an appeal by a private individual can be entertained but it should be done sparingly and after due vigilance and particularly in a case where the remedy has been shut out for the victims due to mala fides on the part of the State functionaries or due to inability of the victims to approach the Court. In the present matter, we find that neither the State which is the complainant nor the heirs of the deceased have chosen to file a petition in the High Court. As this responsibility has been taken up by the Commission at its own volition this is clearly not permissible in the light of the aforesaid judgments. "

(30) While distinguishing the case of Chattar Singh (supra), Mr. Kar Bhowmik submits that Delhi High Court rightly dismissed the appeal preferred by Chattar Singh for not pleading him as victim as defined in Section 2 (wa) of the Code as Chattar Singh preferred the said appeal on account of death of his son when the wife and son of his deceased son were alive and according to Hindu Succession Act, the first heirs are son and daughter and the husband in case of female Hindu and in case of male Hindu, son, daughter and wife. In the case of Chattar Singh (supra), wife of the deceased and his children were the legal heirs and only in absence of them, Chattar Singh would be the legal heirs being father. Therefore, the said case has also no direct bearing with the case in hand, particularly when the fact of that case is wholly different than the case in hand.

(31) He also placed reliance on another decision of the High Court of Delhi in Criminal MA 13541/2010 in Crl. A 940/2010 dated 7. 1. 2011, Kareemul Hajazi Vs. State of NCT of Delhi and Ors. wherein a Delhi High Court considering the Chattar Singh (supra) and taking note of Section 2 (wa) of the code and Muslim Person Law held that father of a Muslim lady is a victim and the legal heirs and also held that the limitation for preferring appeal against the order of acquittal by a victim would be sixty days, not ninety days as mentioned in Section 378 of the Code.

(32) He finally contended that to decide whether a person is a victim due to a crime committed by other persons depends upon particular facts and circumstances of the case and law of inheritance cannot be only the deciding factor to be declared one person as victim. While placing the definition clause Section 2 (wa) of the Code, Mr. Kar Bhowmik submits that there are two parts in the said definition clause. One is who has suffered any loss or injury caused by reason of the act or omission for which the accused persons has been charged and in the second part the Legislature included the legal heirs and guardians extending the meaning of victim. In the instant case, the petitioner being biological father of the deceased and informant of the criminal case in which the respondent No. 2 and 3 faced trial being accused is obviously a victim as he has suffered mental injury caused to him by the respondent 2 and 3 committing murder of his deceased daughter and has also suffered loss of his lone daughter. Unless a father is a victim in a case where son in law killed the daughter, who would be then the victim , particularly, when the daughter is also issueless at the time of her death and in such a case, he accused husband of the deceased cannot be treated as victim as defined in Section 2 (wa) of the Code. If the accused is considered a victim, then he will be a gainer whereas legislature intended that a victim has to be a person who has suffered loss and injury caused by reason of the act or omission for which the accused person has been charged, he contended.

(33) Mr. A. Ghosh, learned Addl. P. P supports the contention of Mr. Kar Bhowmik and would contend that the State has no objection to the prayer for condoning the delay

(34) In the instant case, the questions arise for decision by this Court are:

(i) Whether the petitioner can be treated as a victim in terms of Section 2 (wa) of the Code (ii) Whether he has any right to prefer an appeal against the impugned judgment and order of acquittal taking the benefit of proviso to Section 372 of the Code which has been inserted by way of amendment giving effect and if so, the present condonation petition is maintainable (iii) Whether withdrawal of revision petition when an appeal is pending before the appropriate forum is tantamount to dismissal on merit or not and if not , whether the appeal can be heard by this Court having jurisdiction and whether petitioner would be entitled to the benefit of Section 470 of the Code

(35) At this stage, Mr. Deb further submits that the petitioner will not get the benefit of Section 470 of the Code and Section 470 of the Code prescribes for exclusion of time in a certain case where a person preferred an appeal or revision before a Court having no jurisdiction.

(36) Having heard the learned Counsel of the parties and on going through the relevant law reports cited, we have decided to first discuss whether the petitioner before us is a victim and he has any right to prefer any appeal with the aid of proviso to Section 372 read with Section 378 of the Code.

(37) As Mr. Deb relying on the judgment in Chattar Singh (supra) tried to convince this Court that the petitioner is not victim as defined in Section 2 (wa) of the Code and therefore, he has no right to prefer appeal far to application for condonation of delay. Therefore, it would be proper to visit the facts and circumstances of Chattar Singh (supra).

(38) Before dealing with the submission of the learned Counsel for the parties and law reports cited, it would be proper to reproduce the Section 2 (wa) and Proviso to Section 372 of the Code.

"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 expressing victim includes his or her guardian or legal heir; Proviso to Section 372 of the Code: "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. "

(39) In Chattar Singh (supra), admittedly the appellant Chattar Singh is the father of deceased Satish who was murdered and who was the real and natural victim of the crime and ordinary sense and left behind his widow and children and none of them have come forward for filing an appeal as victim and the question which fells for consideration before the High Court of Delhi is as to whether the appellant Chattar Singh can be regarded as a victim within the meaning of 2 (wa) of the Code. According to us, the Delhi High Court very rightly decided that the appellant Chattar Singh cannot be treated as victim. In fact, in that case, the deceased son Satish was the real victim and after his death for the purpose of getting benefit of the proviso to Section 372 of the Code, the next victims are his wife and children in view of the provisions of Succession Act read with provisions of Section 2 (wa) of the Code. Therefore, the case of Chattar Singh (supra) in no way helps the respondents accused persons i. e. the respondent No. 2 and 3.

(40) Now let us see whether the case of Smt. Ram Kaur (supra) is applicable to this case or not.

(41) In the case of Smt. Ram Kaur, the High Court of Punjab and Haryana while examined the Section 2 (wa) of the Code took note of the Minutes of the 96th Plenary meeting on 29th November, 1985 of the General Assembly of the United Nations wherein the United Nations made a Declaration of Basic Principles of Justice for victims of Crime and Abuse of Power, recognizing that millions of people throughout the world suffer hard as a result of crime and the abuse of power and that the right of these victims have not been adequately recognized and also that frequently their families witnesses and other who aid them are unjustly subjected to loss, damage or injury. The Assembly affirmed the necessity of adopting national and international norms in order to secure universal and effective recognition of and respect for, the rights of victims of crimes and abuse of power. In the said declaration, the word victim was defined as under: 6. 2:-" 6. 2 The Declaration defines victims as "person who, individually or collectively, have suffered hard, 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."

(42) The aforesaid definition of victim has been discussed in 154th Report of the Law Commission, but the legislation has not adopted the said definition and have given a restricted meaning to the word "victim" means only a person, who has suffered any loss or injury caused by reason of the act or omission of the offender and victim includes his or her guardian or legal heir, which in fact subsequently incorporated in the amendment of the Code by way of inserting the clause (wa) of Section 2 of the Code.

(43) A joint reading of Smt. Ram Kaur (supra) and Section 2 (wa) of the Code, we are of the opinion that person who has suffered loss due to a crime is obviously a victim and more particularly we are also in agreement with Mr. Kar Bhowmik as well as Mr. Deb that in Section 2 (wa) of the Code, there are two parts. One part is relating to victim who has suffered loss and injury and by way of other part, the Legislature expanded the applicability of the word victim even to the persons who are the guardian and legal heirs.

(44) Therefore, not only the person who has suffered loss and injury, but the person who is the guardian and legal heir would also come within the purview of victim. In the instant case, the deceased daughter of the petitioner, who was handed over to the respondent No. 2 as his legally married wife, is alleged to have been killed by her husband, respondent-2, who is accused before the Trial Court and thus, cannot be treated as a victim as in that case he would be a gainer whereas the legislature intended that the victim has to be a person who has suffered loss and injury due to the result of crime, more so, when due to marital relation, there was no issue of the deceased daughter of the petitioner, in that case, the petitioner and his family members are the victim next to the real victim deceased as he and his family has suffered loss and injury. As the words loss and injury were not defined in the Code, we have to consider that loss and injury, as mental and physical injury and also emotional sufferings and the deceased being the lone daughter of the petitioner, absence of his daughter due to alleged murder by the accused respondents created a void in the heart of the petitioner and also his family members. We are also of the view when the allegations against the accused husband of deceased and his brother are the subject matter of the appeal, if the appeal succeeds, in that case, the family members of legal heirs of the husband of the deceased would not come as victim for preferring appeal. Thus the contention of Mr. Deb has no force.

(45) In view of the above, we are of the further opinion that the petitioner is the victim within the meaning of clause (wa) of Section 2 of the Code. If we consider Sub-section (4) of Section 378 Cr. P. C, it would be evident that in a case instituted upon a complaint, the complainant has given a right to prefer an appeal against the order of acquittal and the Court has also been given the power to grant special leave, as for the informant in a police case, there is no right to prefer an appeal against an order of acquittal when the State as prosecutor is not preferring an appeal. Legislature considered that such right to appeal should be provided by way of insertion of proviso to Section 372 of the Code and with that legislative intent, the provisions of Section 372 was amended though straightway the Legislature did not use the word informant. Legislature considered the word victim. Therefore, we again hold that every informant may not have the right to prefer an appeal against the order of acquittal. but undoubtedly every victim has the right to prefer an appeal against the order of acquittal. Unless that right is provided to a victim like the petitioner herein, then there will be no remedy for the father and family members of the deceased, the real victim particularly in a case where married women are victim either by her husband or in-laws and in that case, the object for insertion of provision to Section 372 of the Code would be frustrated. The object behind it that the persons who are not in a position to prefer an appeal under the provisions of Section 378 of the Code, they should be provided a right for preferring an appeal under the amended proviso.

(46) In view of the above discussion and considering the entire facts and circumstances of the case at hand, we have no hesitation in holding that the petitioner being a victim i. e. the person suffering loss and injury has the right to appeal in connection with the death of his daughter.

(47) Now question is whether an appeal can be preferred for an incident that happened prior to giving effect of the amendment of the Code. There is no doubt that if a Court considers that from the date of incident, the right to appeal accrued, then obviously that would be unreasonable and unfair, more so, when the amendment is given prospective effect and that would also go against the law of limitation as prescribed under Article 114 of the Limitation Act. In this Case it is not necessary for us to discuss even that aspect, as right to appeal of the petitioner accrued only after the decision in the sessions case by the trial Court i. e. the date on which the judgment was delivered i. e. on 30. 9. 2010.

(48) Now let us see, whether the filing of revision and withdrawal of the same with a prayer that an appeal has been preferred before the Court and the same is pending as to whether in any way creates a bar for preferring appeal with a prayer for condonation of delay.

(49) It appears from the order of withdrawal that when the revision petition was withdrawn, at that relevant time, there was an appeal pending before this Court, though same was during pendency of revision petition not admitted and in that circumstance, the learned Counsel for the petitioner considered that when the petitioner is entitled to approach either of the forum, it was proper on his part to withdraw revision petition. Accordingly, the petitioner has withdrawn the revision petition and at the time of allowing the prayer of the petitioner for withdrawal of the revision petition, the learned Counsel for the respondent 2 and 3 was also heard.

(50) In a criminal case, principle of res judicata has no application. More so, from the case of K. Ramachandran (supra) as relied upon by Mr. Deb, it appears that when the condonation application in filing the appeal was considered by the High Court, at that time, a revision petition was pending against the order of acquittal and keeping the revision pending, an appeal cannot be admitted. But in the instant case when this Court is considering the instant condonation application, there is no other petition pending except the leave application and the connected appeal for admission.