Allahabad High Court
Udai Narayan @ Udai And Others vs State Of U.P. on 15 October, 2020
Equivalent citations: AIRONLINE 2020 ALL 2666
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 88 Case :- CRIMINAL APPEAL No. - 1132 of 1982 Appellant :- Udai Narayan @ Udai And Others Respondent :- State of U.P. Counsel for Appellant :- U.K. Misra, Anurag Pathak Counsel for Respondent :- A.G.A.,V.V. Mishra Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the appellants and learned A.G.A. for State-respondent.
2. Instant criminal appeal has been preferred challenging the judgment and order dated 26.03.1982 passed by 3rd Additional Sessions Judge, Ballia in Sessions Trial No.245 of 1980 convicting the appellants under Section 395 IPC and sentencing them to undergo five years rigorous imprisonment.
3. Vide impugned judgment and order dated 26.03.1982, eight accused persons had been convicted, out of them six had filed instant appeal.
4. As per FIR version, in the intervening night of 14/15 March, 1980 while first informant Ram Nagina Mishra (PW-2) was sleeping in his room situated towards north of the outer verandah of his house, a gang of 14-15 dacoits raided at his house and barged into the house after breaking the outer door. On strong resistance by the villagers, many of the dacoits managed to escape from the place of occurrence, but out of them five dacoits namely Udai Narayan, Ram Vachan, Jagdish, Mani Ram and Babban were caught by the villagers. Apart from that, two others namely Ghura and Dukhu were recognized by the villagers. During course of investigation police suspected one more accused namely Moti. In this view of the matter, total eight persons were blamed to be involved in commission of crime (i.e. dacoity). Informant Ram Nagina Mishra (PW-2) has moved written report dated 15.03.1980 (Exhibit Ka-1) with respect to incident in question on the basis of which Chik FIR (Exhibit Ka-5) has been registered under Section 395/397 IPC and same was scribed in the General Diary. Copy of which was exhibited as Exhibit Ka-6. After due investigation, the Investigating Officer has submitted charge sheet under Sections 395/397 IPC and case was registered in the Court of Judicial Magistrate-I, Ballia. Thereafter, case was committed to the Court of Sessions for trial.
5. In order to substantiate the charges levelled against the accused, prosecution has produced as many as ten witnesses. On the other side, defence has examined four witnesses. After considering the facts and circumstances and documents available on record, trial Court has passed the impugned judgment and order convicting the accused persons as mentioned above.
6. Against aforesaid judgment and order dated 26.03.1982, two criminal appeals were preferred which are registered as (i) Criminal Appeal No.1131 of 1982 (Ram Vachan and another vs. State of U.P.) and (ii) Criminal Appeal No.1132 of 1982 (Udai Narayan and five others vs. State of U.P.).
(i) So far as Criminal Appeal No.1131 of 1982 is concerned, it was preferred by two accused namely Ram Vachan (appellant no.1) and Mani Ram (appellant no.2). Aforesaid appeal was ordered to be dismissed as infructuous vide order dated 06.05.2013 passed by this Court on the ground that appellant no.1 Ram Vachan had already served out the sentence and has already been released from the jail. So far as appellant no.2 Mani Ram is concerned, he expired and appeal was already abated against him.
(ii) In the present criminal appeal i.e. Criminal Appeal no.1132 of 1982, which has been filed on behalf of six appellants/accused, out of them four had already died and vide order dated 12.03.2013, present appeal was ordered to be dismissed as abated against appellant nos.1, 2, 4 and 5. Now it survives only against appellant no.3 Babban Nonia and appellant no.6 Moti Ram.
7. Vide order dated 04.05.1982, instant appeal was admitted and notice was ordered to be issued to the State and appellants were enlarged on bail during pendency of appeal. With respect to the record of Court below, District Judge, Ballia had submitted report dated 18.02.2003 informing that record of Criminal Appeal No.1131 of 1982 relating to Sessions Trial No.245 of 1980 had already been weeded out by the concerned Record Keeper on 03.06.1992. After considering aforesaid report, this Court had passed order dated 29.01.2004 directing District Judge, Ballia for reconstruction of the record. Thereafter, sufficient number of communications have been made between Registry of High Court and concerned Court below. Ultimately, District Judge, Ballia had sent a detailed report dated 27.07.2016, through Special Messenger, along with a detailed enquiry report dated 06.07.2016 submitted by Additional District and Sessions Judge, Court no.3, Ballia. Record further reveals that District Judge, Ballia had sent another report to the same effect vide communication letter dated 08.07.2016 along with the detailed enquiry report dated 06.07.2016 submitted by Additional District and Sessions Judge, Court No.3, Ballia. In the aforesaid report, District Judge, Ballia has specifically mentioned that despite best efforts, reconstruction of record of Sessions Trial no.245 of 1980 is not possible.
8. In support of his observation, showing his inability to reconstruct the record, District Judge, Ballia had appended enquiry report dated 06.07.2016 as mentioned above, which reveals that learned Additional District and Sessions Judge, Ballia had made mammoth effort for reconstruction of the record relating to Sessions Trial No.245 of 1980 from all possible corners i.e. Office of District Government Advocate (Criminal), Office of Senior Superintendent of Police, Ballia, Office of concerned police station, and Record Room but all his efforts proved to be futile. He had also summoned accused persons namely Babban Nonia (appellant no.3) and Moti Ram (appellant no.6), who had stated that their counsel, in trial Court, had already died and all record relating to their case was with them and they did not possess any document relating to the case. After enquiry, it was found that first informant Ram Nagina Mishra (PW-2) had also died.
9. In the light of enquiry at the ground level, Additional District and Sessions Judge, Ballia had submitted a detailed report dated 06.07.2016 that no record/document could be found relating to Sessions Trial No.245 of 1980, therefore, reconstruction of record is not possible. In the light of aforesaid enquiry report dated 06.07.2016, District Judge, Ballia had also made his observation to the same effect.
10. Learned counsel for the appellants has submitted that since the record of Court below is missing and neither the reconstruction of record is possible nor retrial relating to present matter is possible, in the light of the fact that most of the accused persons had died, hence, instant appeal may be allowed and accused-appellants, who are alive, may kindly be acquitted. In support of his contention, learned counsel for the appellants has relied on Hon'ble Supreme Court's case passed in State of U.P. vs. Abhai Raj Singh and another, AIR 2004 SC 3235.
11. Learned A.G.A. has nodded the proposition of law, as submitted by learned counsel for the appellants, relating to the matter where record of trial Court is missing, and proper adjudication of the accusation against accused persons is not possible as required under Sections 385 and 386 of Cr.P.C.
12. In this view of the matter, the vexed question arose for consideration in this appeal is as to whether appeal can be allowed and accused-appellants can be acquitted for want of original record of Sessions Trial.
13. I have carefully considered the submissions advanced on behalf of both the parties and also gone through the relevant provisions of law.
14. After being convicted it is right of an accused to assail the impugned judgment and order in appeal and point out the ambiguity, perversity, illegality, irregularity and infirmity in the order and proceeding of the trial Court to prove his innocence, which is not possible in absence of original record of the Sessions Trial. As such, original record of Sessions Trial is most essential before the Appellate Court to examine the legality of conviction of accused-appellant
15. The procedure qua legitimate right of an accused to challenge the impugned judgment and order of conviction and prove his innocence is provided under Sections 385 and 386 Cr.P.C. Aforesaid sections fall under Chapter XXIX of Cr.P.C. which is captioned as "Appeals". Sections 385 and 386 Cr.P.C. deals with "Procedure for hearing appeals not dismissed summarily" and "Powers of the Appellate Court", respectively, which read as follows :
"385. Procedure for hearing appeals not dismissed summarily.-(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
(iv) if the appeal is under Section 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.
(2) The Appellate Court shall then send for the record of the case, if such record is not ready available in that Court, and hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.
386. Powers of the Appellate Court.-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may-
(a) ***
(b) ***
(c) ***
(d) ***
(e) ***"
16. As per procedure embodied under Section 385 Cr.P.C., Appellate Court, in case not dismissing the appeal summarily, is entrusted with the duty to issue notice to persons as mentioned in several categories of Section 385 (1) Cr.P.C. Appellate Court has also been entrusted to call for the record of Court below with one exception, where the appeal is only to the extent or the legality of sentence, it may dispose of an appeal without summoning the record. Further, in defining power of the Appellate Court, Section 386 Cr.P.C. enumerates that Appellate Court is empowered to reverse the finding of the Court below or uphold the sentence or acquit the accused and, in exercising its power, Appellate Court has to go through the record of Court below and submissions made by the appellant and Public Prosecutor. In this view of the matter, Appellate Court cannot properly exercise its jurisdiction of acquittal, reversal or upholding the sentence without perusing the record of Sessions Trial.
17. Dealing with the matter wherein record of Court below is missing and reconstruction is not possible, even retrial of the case has also become difficult owing to so many reasons, Hon'ble Supreme Court has enumerated the law relating to these matter and expounded that in such eventuality, matter should be closed. In State of U.P. Vs Abhai Raj Singh (supra), Hon'ble Supreme Court has observed as under :
"The powers of the appellate court when dealing with an appeal from a conviction are delineated in sub-clauses (I), (ii) and (iii) of clause (b) of section 386 of the code. The appellate court is empowered by section 386 to reverse the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence. The appellate court of competent jurisdiction subordinate to the appellate court or committed for trial . For exercise of the powers in cases of first two categories, obviously a finding on merits after consideration of the materials on record is imperative. Where that is not possible because of circumstances like the case at hand i.e. destruction of the records , the proper course for the appellate court would be to direct retrial after reconstruction of the records the same was impossible. If on the other hand, from the copies available with the prosecuting agency or the defence and/or their respective counsel, reconstruction is possible to be made, the said course indicated in sub-clause (i) and (ii). After perusal of the records and hearing the appellant's pleader and Public Prosecutor under section 377 or 378, the exercise of power as indicated above can be resorted to. As was observed in Bani Singh v. State of U.P. (1996) 4 SCC 720 . The plain language of section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it must call for the records and section 386 mandates that after record is received, the appellate court may dispose of the appeal after hearing as indicated.
A question would further arise as to what happens when reconstruction is not possible. Section 386 empowers the appellate court to order that the case be committed for trial and this power is not circumscribed to cases exclusively triable by the Court of Session.(See State of U.P. v. Shankar AIR 1962 SC1154).
It has been the consistent view taken by several High court that when records are destroyed by fire or on account of natural or unnatural calamities reconstruction should be ordered. In Queen Empress v. Khimat Singh 1889 AWN 55 the view taken was that the provisions of section 423(1) of the criminal procedure code,1898(in short " the old code") made it obligatory for the court to obtain and examine the record at the time of hearing. When it was not possible to do so, the only available course was a direction for reconstruction. The said view was reiterated more than six decades back in Sevuaperumal, Re AIR 1943 Mad 391(2). The view has been reiterated by several high Courts as well,even thereafter.
The High court did not keep the relevant aspects and consideration in view and came to the abrupt conclusion that reconstruction was not possible merely because there was no response from the Session Judge. The order for reconstruction was 1-11-1993 and the judgement of the high court is in Criminal Appeal No. 1970 of 1979 dated 25-2-1994. the order was followed in Criminal Appeal No. 1962 of 1979 disposed of on 16-9-1995. it is not clear as to why the high court did not require the session court to furnish the information about reconstruction of records; and/or itself take initiative by issuing positive directions as to the manner, method and nature of attempts,efforts and exercise to be undertaken to effectively achieve the purpose in the best interests of justice and to avoid ultimately any miscarriage of justice resulting from any lapse,inaction or inappropriate or perfunctory action,in this regard; particularly when no action was taken by the high court to pass necessary orders for about a decade when it received information about destruction of record. The course adopted by the high court, if approved, would encourage dubious persons and detractors of justice by allowing undeserved premium to violators of law by acting hand in glove with those anti-social elements coming to hold sway,behind the screen, in the ordinary and normal course of justice.
10. We , therefore, set aside the order of the high court and remit the matter back for fresh consideration. It is to be noted at this juncture that one of the respondents i.e. Om pal has died during the pendency of the appeal before this court .The High court shall direct reconstruction of the records within a period of six months from the date of receipt of our judgment from all available or possible sources with the assistance of the prosecuting agency as well as the defending parties and their respective counsel. If it is possible to have the records reonstructed to enable the high court itself to hear and dispose of the appeals in the manner envisaged under section 386 of the code,rehear the appeals and dispose of the same, on their own merits and in ordering retrial interest of justice could be better served-adopt that course. If only reconstruction is not possible to facilitate the high court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the sessions court is also rendered impossible due to loss of vitally important basic records- in that case and situation only, the direction given in the impugned judgement shall operate and the matter shall stand closed. The appeals are accordingly disposed of."
18. In Sita Ram and others vs. State, 1981 Cri.L.J. 65, it is held that appellant has a right to show in the appeal that the decision arrived at by the Court below, was not supported by the evidence on record and in absence of original record, it is not possible to examine the legality of the judgment in question that as to whether same is supported by the evidence available on record and order of conviction passed and sentence imposed is legally justified and proper. Relevant paragraphs 5, 6, 7, 8, 9, 10, 11 of aforesaid judgment are reproduced herein below :
"5. Since it is incumbent on the appellate court to send for the record and peruse it and hear the counsel for the parties before it can exercise its power under Section 386, the present appeal cannot possibly be heard and decided on merit.
6. The appellants have a right to show to this Court that the decision arrived at by the court below was not supported by the evidence on record. They can legitimately contend that material evidence and circumstances have either been ignored or incorrectly appraised. This right cannot be denied to the appellants. In the absence of the original record it is not possible for us to arrive at a decision that the impugned judgment is supported by the evidence on record and the order of conviction passed and the sentence imposed on the appellants is legally justified and proper.
7. In such a situation two courses are open to the Court; (1) to order retrial after setting aside the impugned judgment; or (2) to acquit the appellants. A situation like the present one arose before Courts earlier also. In re Sevugaperumal AIR 1943 Mad 391 (2) : 44 Cri LJ 611 the accused were convicted under Sections 457, 395 and 397 Penal Code, and sentenced to various terms of imprisonment. Following the decision of this Court in Queen-Empress v. Khimat Singh 1889 All WN 55 (supra) the Madras High Court ordered retrial after setting aside the convictions. From the reports of these decisions it is not clear how much time had elapsed between the incident and the date when retrial was directed. In the Madras case the impugned order of the trial court was dated 22-6-1942. The appeal was filed on 6-8-1942 and the original record was destroyed by fire on 17-8-1942. The appeal came up for hearing on 5-11-1942. It may be that the time lapse between the date of the incident and the date of decision by the appellate court was not long. Moreover the Public Prosecutor conceded in those cases that no other course was possible under the circumstances.
8. In Madhusudhan v. State 1963 (2) Cri LJ 103 (Orissa) the appellant was convicted under Section 302, I.P.C. and sentenced to imprisonment for life by an order of the Sessions Judge dated 17-4-1962. The incident had taken place on 29-3-1962. The appeal came up for hearing on 12-12-1962. The appellate court directed retrial of the case. It may be noted that the order for retrial was passed well within two years of the incident.
9. A similar situation arose before this Court in Zillar v. State 1956 All WR (HC) 613. In this case the appellants were convicted by the Sessions Judge on 21-1-1951 under Sections 304 and 148, I.P.C. in respect of the offence committed on 2-4-1950. The appeal was filed in this Court on 24-1-1951 which came up for hearing in April 1956 when it was brought to the notice of the Court that the entire record of the case had been lost. Attempt was made to reconstruct the record but it proved futile. This Court refused to direct retrial of the case on the reasoning that the case related to an offence which was committed more than six years ago and five years had elapsed since the judgment of the Sessions Judge convicting the appellants was passed. The court took into account the further fact that even the copies of the F.I.R. and the statements of witnesses taken under Section 161 Cr. P.C. were not available as they had been weeded out in the ordinary course.
10. A Division Bench of this Court in Criminal Appeal No. 3235 of 1971 (Jit Narain v. State) decided on 15-3-1978 in similar circumstances allowed the appeal and acquitted the appellants instead of directing their retrial.
11. On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are of the opinion that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal. The appellant has a right to try to satisfy the appellate court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of F.I.R., statements of witnesses under Section 161, Cr. P.C. reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of F.I.R. and statements of witnesses under Section 161, Cr. P.C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State.
In the present case the incident took place on 23-8-1971. The appellants were convicted by the Sessions Court by an order dated 18-11-1974. The appeal has been pending in this Court for about six years. We are informed that copies of the First Information Report and statements of witnesses recorded under Section 161, Cr. P.C. have been weeded out and are not available. All attempts to reconstruct the record have proved futile. In such a situation it is not permissible for us to affirm the order of conviction of the appellants, since in the absence of the record we cannot possibly feel satisfied that the appellants have been rightly convicted. Due to lapse of time and non-availability of papers like First Information Report, statements under Section 161, Criminal Procedure Code etc, we do not consider it either just or expedient to order retrial of the case."
19. Similar view was expressed by a Division Bench of this Court in Criminal Appeal No.522 of 1980 (Bachchi Lal and others vs. State of U.P.) decided on 11.02.2020.
20. I have examined the matter in the light of the expressed view expounded by Hon'ble Supreme Court as well as Division Bench of this Court as mentioned above. It is apparent that in deciding appeal at the time of examining legality of judgment and order passed by Court below, Appellate Court is required to peruse the record of Sessions Trial to ascertain as to whether evidence which have been relied on by the trial Court in convicting or acquitting the accused, has properly been appreciated or not.
21. In the present matter, as discussed above, sincere effort had been made by the concerned authorities of Subordinate Court qua reconstruction of original record and after proper and elaborate enquiry made by the concerned Additional District and Sessions Judge, a report had been submitted by him that reconstruction of original record of Sessions Trial is not possible, inasmuch as, any paper or document relating to Sessions Trial No.245 of 1980, despite sincere efforts, could not be collected or procured from any possible corner, from where documents were expected to be available. So far as retrial of the case is concerned, after examining the matter in the light of report submitted by Subordinate Court and perusal of record, I am of the opinion that in the present scenario retrial of the instant matter is not possible. Out of eight accused, who had been convicted by impugned judgment and order dated 26.03.1982, five had already died and one accused namely Ram Vachan had already completed his sentence and released from jail. Here, it is made clear, as discussed above, that two accused namely Ram Vachan and Mani Ram had filed Criminal Appeal No.1131 of 1982, which was dismissed as infructuous vide order dated 06.05.2013 and remaining six accused persons have filed the instant criminal appeal. As per enquiry report of Additional District and Sessions Judge, Ballia, first informant Ram Nagina Mishra (PW-2) had also died years back.
22. In the light of aforesaid fact, that many of the persons relating to case including the accused and first informant had died, it is quite possible that many of the witnesses must have also died. Therefore, in the present scenario, taking into account the death of the parties and non availability of the documents, retrial in the present case is almost impossible. Time passed in the matter is also relevant to be considered. Initially incident took place long back in March, 1980 and impugned judgment and order was passed in March, 1982. Thereafter, appeal was filed and the same was admitted vide order dated 04.05.1982. Since, the date of occurrence up to till date, about 40 years had passed and at this stage issuing direction for retrial would be an exercise in futility, therefore, in the eventuality that record of Sessions Trial is missing, no fruitful purpose would be served in protracting the appeal.
23. In the light of law laid down by Hon'ble Supreme Court and provisions of law wherein record of Sessions Trial is essentially required to be perused before deciding an appeal, but same is neither traceable nor reconstruction of aforesaid record is possible nor even retrial of the case is possible, I am of the considered view that present appeal should be allowed and impugned judgment and order dated 26.03.1982 passed by Sessions Court should be quashed and surviving appellants should be acquitted.
24. Resultantly, present appeal is allowed. Impugned judgment and order dated 26.03.1982 passed in Sessions Trial No.245 of 1980 is hereby quashed so far it relates to conviction and sentence to appellant no.3, Babban Nonia and appellant no.6, Moti Ram.
25. A copy of this order along with lower Court record be sent to concerned Court forthwith for information and immediate compliance.
Order Date : 15.10.2020 Manish Himwan