Anil Kumar Sharma @APPELLANT@Hash State of Rajasthan And Ors

This criminal appeal under Section 374 of the Code of Criminal Procedure has been filed by accused-appellant assailing judgment and order dated

04.12.1993 of learned Sessions Judge, Jaipur City, Jaipur in Sessions Case No.4/92, whereby the accused-appellant has been convicted for offence

under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment.

An application bearing inward no.21994 dated 23.10.2017 has been filed by applicant Smt. Sunita Sharma wife of accused-appellant under Section 482

of the Cr.P.C. for permitting her to prosecute the appeal stating therein that accused-appellant Anil Kumar Sharma has expired on 23.02.2007. The

applicant has also filed an amended cause-title. The accused-appellant was a

Government servant working in the Rajasthan Electricity Regulatory Commission. The applicant has filed death certificate of the accused-appellant

issued by the Deputy Registrar (Birth-Death), Jaipur Municipal Corporation, Jaipur. It is further stated that applicant Smt. Sunita Sharma is the only

legal heir of the accused-appellant and therefore it is prayed that she may be taken on record as his legal heir to prosecute the appeal. Since the said

application is filed with delay, the applicant has also filed an application under Section 5 of the Limitation Act bearing inward no.2126 dated 23.01.2018

for condonation of the delay in its filing. It is stated therein that when the applicant received information by the counsel that the appeal is listed for

hearing then she contracted in the office of the counsel and told about the death of the accused appellant on 23.02.2007 and it was only thereafter that

the application was filed for permission to prosecute the appeal. It was a bona-fide mistake on the part of the applicant and therefore prayer is made

for condonation of delay in filing the application.

Learned counsel for the applicant submitted that the court should construe provisions of Section 394 of the Cr.P.C. liberally and condone the delay by

invoking Section 5 of the Limitation Act.

Learned Public Prosecutor opposed the application contending that a detailed provision has been made by the Cr.P.C. to apply for permission of the

Appellate Court to continue the appeal. Besides, learned Public Prosecutor argued that no explanation whatsoever has been furnished by the applicant

for such enormous delay. In support of the argument, learned Public Prosecutor has relied on a judgment of the Supreme Court in Hari Prasad

Chhapolia Vs. Union of India â€" (2008) 7 SCC 690, wherein the Supreme Court treated the appeal as abated on death of the appellant dismissing the

application filed nearly after one year stating that no acceptable explanation was offered for delayed presentation.

Having heard learned counsel for the applicant, this court finds that as per Section 394 of the Cr.P.C., such application is required to be filed within

thirty days of the death of appellant. The accused-appellant died on 23.02.2007 and the application under Section 482 Cr.P.C. was filed on 23.10.2017

and application for condonation of delay has been filed on 23.01.2018 with delay of almost ten years. In neither of two applications, has the applicant

furnished any explanation, let alone any satisfactory explanation, for such enormous delay of almost a decade except saying that this was a bona-fide

mistake. Mere statement that it was a bona-fide mistake, does not amount to any explanation. The applicant cannot be permitted to prosecute the

appeal when she has failed to furnish an acceptable explanation muchless a sufficient cause which, prevented her from filing the application within the

prescribed period of limitation. It cannot be accepted that the applicant would not be aware of the factum of conviction of her husband and that of

pendency of the appeal.

Both the applications are accordingly dismissed. Consequently, the appeal abates and the same is dismissed as such.