Uttarakhand High Court
State vs Visarat And 10 Others on 24 July, 2019
Equivalent citations: AIRONLINE 2019 UTR 357, (2019) 109 ALLCRIC 857 (2019) 3 UC 1789, (2019) 3 UC 1789
Bench: Ramesh Ranganathan, Alok Kumar Verma
1
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No. 18 of 2018
(Old No.1345 of 1990)
State ......Appellant
Vs.
Visarat and 10 others ........Respondents
Present :
Mr. J.S. Virk, learned A.G.A. with Mr. Pratiroop Pandey, learned A.G.A.
for the State/appellant.
Mr. Mohd. Umar, learned counsel for the informant.
Mr. Narayan Hari Gupta, learned counsel for the respondents.
Reserved on : 18.07.2019
Delivered on : 24.07.2019
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Per : Alok Kumar Verma,J.
Fiat Justitia. Speedy trial is a part of right under Article 21 of the Constitution of India. It is a part of reasonable, fair and just procedure guaranteed under Article 21. The due process and right to a speedy trial is mentioned in clause 39 and 40 of the document of English law, the Magna Carta.
"Sword of Democles" should not hang over the head of the accused for an indefinite period and he is entitled to be relieved from the travail of the prosecution.2
Timely delivery of justice is a part of human rights. The trial should be judicious, fair, transparent and expeditious to ensure to achieve the goal of justice. In Hussainara Khatoon Vs. The State of Bihar, AIR 1979 SC 1379, the Hon'ble Apex Court observed, "Even a day of one year in the commencement of trial is bad enough how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice." In Kadra Pehadiya Vs. State of Bihar, AIR 1981 SC 939, it was held that speedy trial is a fundamental right of the accused under Article 21 of the constitution. In Raghubir Singh Vs. State of Bihar (1986) 4 SCC 481, the Hon'ble Apex Court has held that the right of a speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by Article 21. In Shailendra Kumar Vs. State of Delhi (2000) 4 SCC 178, the Hon'ble Apex Court observed that a criminal appeal is continuation of trial. In Abdul Rehman Antulay Vs. R.S. Nayak, AIR 1992 SC 1630. The Hon'ble Apex Court has held that the right to speedy trial flowing from Article 21 is available to accused at all stages including the stage of investigation, inquiry, trial and appeal. Undue delay may result in impairment of the ability of the accused to defend himself whether on account of death, disappearance or non-availability of witnesses 3 or otherwise. In Imtiyaj Ahmad Vs. State of Uttar Pradesh and others, (2012) 2 SCC 688, the Hon'ble Apex Court observed that long delay has the effect of blatant violation of rule of law and adverse impact on access to justice which is fundamental right. Denial of this right undermines public confidence in justice delivery.
2. In the instant matter the incident in question is of the year 1987. Against the judgment and order dated 29.03.1990 passed by Vth Additional Sessions Judge, Saharanpur in Sessions Trial No.333 of 1989, State Vs. Visarat and 10 others, whereby the respondents/accused were acquitted from the offences under Sections 147, 148, 302, 323, 324 all read with Section 149 of IPC, the Criminal Appeal, by way of sub-section (3) of Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), was preferred before the Hon'ble Allahabad High Court. The Hon'ble Allahabad High Court granted permission and admitted this Criminal Appeal No. 1345 of 1990 vide Order dated 08.07.1992.
3. On 13.12.2017, the Hon'ble Allahabad High Court observed that in respect of the lower court record, the report was received that only 43 pages of the judgment is available and other papers have been weeded out on 25.04.2012. The appeal is pending since 1990. The Hon'ble Allahabad High Court 4 further observed that since the matter pertains to District Haridwar, hence this Court had now no jurisdiction to entertain the appeal as the District Haridwar falls within the State of Uttarakhand, which had been carved out in the year 2000. Therefore, the Hon'ble Allahabad High Court has passed Order that in the interest of justice the entire record of the case along with the lower court record be transmitted to the High Court of Uttarakhand at Nainital within one month.
4. In the light of Order dated 13.12.2017 of the Hon'ble Allahabad High Court, the record of this Appeal is received by this Court. This appeal is renumbered as Government Appeal No. 18 of 2018.
5. According to the available 43 pages of judgment of the trial court, since all other papers of the trial court had been weeded out, the brief history of this case is that the informant/injured Ilyas, PW1, lodged FIR, Exhibit Ka-14 at Police Station Jwalapur, District Saharanpur (now Haridwar) on 14.01.1987 at 06:45 P.M. against 11 accused persons through his Tahrir, Ext.Ka-1. In his Tahrir, the informant stated that on 14.01.1987, the village Lekhpal had come to village Bharapur to carry out the measurements of the land of Gram Samaj given to the Patta-holders. The Lekhpal, Village Pradhan Liaqat, Patta-holders and some persons of the village were carrying out the measurements of the Gram Samaj land. The village residents Abbas, Riyasat, Tahir, Mahboob and others 5 had illegally taken the possession of this land and had sown the crop of wheat and Barseem. When the measurement party came at the field of Abbas measuring the land of Gram Samaj, accused Abbas opposed to measure the land. There upon Pradhan Liaqat insisted that the measurement has to be carried out as the land belongs Gram Samaj. It was about 04:00 PM accused Munsab, armed with axe, Riyasat with Phawra, accused Visarat, Abbas, Galib, Kamil, Talib, Tahir, Aiyaz, Usman and Mahboob, armed with lathies, forming unlawful assembly, rushed to kill Village Pradhan Liaqat. The informant Ilyas and Shafi tried to rescue the Village Pradhan but they were also beaten by the accused persons. Meanwhile, village-residents Saddique, Akbar, Asgar and Migdad also intervened in the matter to save the informant and Pradhan Liaqat. Pradhan Liaqat died on the spot. Accused Aiyaz and Visarat fired with their country-made pistols and all the accused persons ran away towards the village. The informant came to know that accused persons trespassed the houses of the informant party and set fire to them. Accused persons also pelted stones and bricks. The informant left the dead body of Village Pradhan in the superdgi of some of the village persons and went to lodge the FIR of this occurrence. He got the Tahrir of this occurrence written on his dictation by one Vijender Kumar and handed over same at Police Station Jwalapur on 14.01.1987 at 06:45 PM. The 6 distance of the place of occurrence from the Police Station was 18 Kms.
The informant/injured Ilyas was medically examined by Doctor V.K. Mittal, PW5, on 14.01.1987 at 09:05 PM. The following injuries were found on the body of Ilyas:-
1. A contused swelling 2 cm x 1.5 cm on left middle finger, last digit, purple-red in colour.
2. A linear abrasion 1 cm long on left palm, front and just below the thumb.
Bleeding present.
3. C/o plain in both sides abdomen and waist.
In the doctor's opinion, all the injuries were simple and caused by blunt object, except injury No.2, which was caused by friction against sharp- edged object. The duration was fresh.
The injured Mohd. Shafi was medically examined on 14.01.1987 at 09:15 PM by the same doctor. The following injuries were found on the body of Mohd. Shafi:-
1. An incised wound 6.00 cm x 0.5 cm x scalp deep on right side head lying obliquenly (parietal region), lower end is 8 cm above eye brow. Margins were sharp with tailing present on upper end.7
Muscles were sliced with fine cutting of scalp. Bleeding-present. Injury kept u/o.
2. A lacerated wound 'I' shaped 1.5 cm x 0.3 cm x scalp deep with haematoma of 4 cm x 2.5 cm around the wound on left side head back (occipital region) 11 cm from left ear. Bleeding present. Injury kept u/o.
3. An abraded contusion 4 cm x 2 cm on right side back on upper region of shoulder-blade, oozing with purple-red colour.
According to the doctor, injury No.3 was simple while injury No.1 and 2 were kept under observation. Injury No.1 was caused by sharp object while rest by blunt object. The duration at the time of medical examination was fresh. The injured was referred to H.M.G. Hospital, Haridwar for X-ray of his skull with treatment.
The autopsy on the dead body of Pradhan Liaqat, aged about 40 years, was performed on 15.01.1987 at 01:05 PM at H.M.G. Hospital, Haridwar by Dr. O.P. Sharma, PW6. Rigor mortis was present in upper and lower extremities. The doctor found the following anti-mortem-injuries on the dead- body of Liaqat:-
81. Incised wound 7 cm x 1 cm x bone deep on right parietal prominance. Margin-
clean-cut.
2. Incised wound 3 cm x 1 cm x bone deep, 1 cm interior to injury no.1.
3. Incised wound 3 cm x 1 cm x bone deep on left parietal prominance.
4. Incised wound 4 cm x 1 cm x muscle deep 2 cm behind injury no.3.
5. Incised wound 3 cm x 1 cm x bone deep 2 cm below injury no.4.
6. Incised wound 3 cm x 1 cm x bone deep, 1 cm anterior to injury no.5.
7. Incised wound 3 cm x 0.5 cm x skin deep on left side face.
8. Incised wound 2 cm x 0.7 cm x muscle deep left side upper lip.
9. Incised wound 3 cm x 1 cm x through and through left side chin.
10. Incised wound 8 cm x 4 cm x cervical vertebra deep left side neck 3 cm below mandible.
11. Incised wound 6 cm x 2 cm x bone deep on left shoulder.
912. Incised wound 1 cm x 0.5 cm x muscle deep on left thumb.
In the doctor's opinion, the cause of death was shock and haemorrhage due to anti- mortem-injuries and these injuries were sufficient in the ordinary course of nature to cause the death of deceased.
The case was committed to the court of Sessions by the Munsif-Magistrate, Lower Criminal Court, Haridwar on 26.05.1989.
Charges under Sections 302/149, 324/149 and 323/149 of IPC were framed against all the accused persons. Accused Visarat, Abbas, Galib, Kamil, Talib, Tahir, Aiyaz, Usman and Mehboob had further been charged under Section 147 IPC. Accused Riyasat and Munsab had further been charged under Section 148 IPC. Accused persons pleaded not guilty and claimed to be tried.
The prosecution in order to establish the charges against the accused persons, examined 8 witnesses, namely informant/injured Ilyas, PW1, injured Mohd. Shafi, PW2, eye- witness Asgar, PW3, Dr. V.K. Mittal, PW4, Dr. O.P. Sharma, PW5, H.C. Gajram Singh, PW6, S.I. Ranvir Singh, PW7 and M.K. Mishra, PW8.
10PW6 was the scribe of Chik-report and the G.D. of kayami Mukadma. S.I. Ranvir Singh, PW7 was investigating officer. He proved the inquest report and completed the inquest formalities. He proved the site plan. He took the sample of simple earth and blood stained earth from the place of occurrence and prepared a Fard. He proved the Fard in respect of blood stained clothes of injured Mohd. Shafi. He recorded the statements of witnesses. He proved the chik-report and the copy of G.D. of Kayami Mukadma. S.I. M.K. Mishra, P.W.8 proved the charge-sheet submitted against the accused persons.
The accused persons had been examined under Section 313 Cr.P.C. They stated their false implication in the instant case due to enmity. According to the judgment of the trial court, the accused persons had taken plea of right of private defence of property.
The learned trial court heard the arguments of both the parties, appreciated the evidences and held that the prosecution had not been successful to prove its case against the accused persons beyond all reasonable doubt and they deserved the benefit of doubt.
116. Mr. J.S. Virk, learned A.G.A. appearing for appellant-State submitted that learned trial court has not weighed and assessed the prosecution evidence since the material evidence available on the record. Therefore, the order of acquittal is not justified in the eyes of law.
7. On the other hand, Mr. Narayan Hari Gupta, learned counsel for respondents/accused submitted that a person is believed to be innocent until he is found guilty and it would not be appropriate upon this Court to overturn the factual findings without perusing the record of the trial court as mentioned in the Section 386 of the Code.
8. We have considered the submissions on behalf of the parties. The primary question for our consideration in the present appeal is, whether the criminal appeal can be decided on merits without perusal of trial court record.
9. Section 378 of the Code provides appeal in case of acquittal. Section 382 of the Code stipulates that every appeal shall be made in form of a petition. Section 383 is procedure when appellant is in jail. An appellate court has power to dismiss an appeal summarily under Section 384 of the Code. Section 385 of the Code makes it clear that if the appellate court does not consider the appeal fit for summarily dismissal, the court must call for the record and 12 Section 386 mandates that after the record is received the appellate court may dispose of the appeal after hearing the accused or his counsel.
10. Sections 378, 382, 383, 384, 385 and 386 of the Code, are reproduced here-in-below:-
378. Appeal in case of acquittal (as before substituted by Act No.25 of 2005).--[(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-
sections (3) and (5), the State Government may, in any Case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court [or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any Case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor, to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal.
(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) 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 13 acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other Case, computed from the date of that order of acquittal.
(6) If, in any Case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2).
382. Petition of appeal.--Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against.
383. Procedure when appellant in jail.--If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper Appellate Court.
384. Summary dismissal of appeal.--(1) If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:
Provided that--
(a) no appeal presented under section 382 shall be dismissed unless the appellant or his pleader has had a 14 reasonable opportunity of being heard in support of the same;
(b) no appeal presented under section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;
(c) no appeal presented under section 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case. (3) Where the Appellate Court dismissing an appeal under this section is a Court of Session or of the Chief Judicial Magistrate, it shall record its reasons for doing so.
(4) Where an appeal presented under section 383 has been dismissed summarily under this section and the Appellate Court finds that another petition of appeal duly presented under section 382 on behalf of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law.
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--
15(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 already 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) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
16(b) in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence--
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or, the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.17
11. A cumulative reading of the above referred provisions make it crystal clear that the criminal appeal is to be decided on merit after perusal of lower court record if the appeal is not dismissed summarily.
12. The appellate court ought not to substitute its view in place of that of the trial court unless the view taken by the trial court is perverse. In an appeal against acquittal, the High Court cannot interfere unless there are substantial and compelling reasons to reverse the order of acquittal.
13. This criminal appeal has been received incomplete from the Hon'ble Allahabad High Court as the copy of FIR, charge-sheet, site plan, inquest report, medical reports, post-mortem report, memo of sample of simple and blood stained earth, blood stained clothes of Mohd. Shafi, PW2, oral evidences of prosecution witnesses, statements recorded under Section 313 of the Code and defence evidence, are not available.
14. The learned counsel for appellant submitted that before the Hon'ble Allahabad High Court, the informant filed the copies of FIR and oral evidences of the informant Ilyas, PW1, injured Mohd. Shafi, PW2 and eye-witness Asgar, PW3. These copies are not certified copies. There are no signature of the Presiding Officer or witnesses on these copies. These copies are not admitted by the learned counsel 18 appearing for respondents/accused. Our attention was drawn by the learned counsel for respondents/accused on the copies of oral evidences where some cuttings and over-writings are present.
No reasons have been furnished by the learned counsel for appellant regarding these cuttings and over-writings present on the copies of oral-evidences. These situations are remained unexplained. Therefore, these copies of the oral evidences are not reliable and hence it is not safe to act on these copies.
15. In Abbash Ali Vs. Emperor, (1913)14 Cri. L.J. 182, A Division Bench of Hon'ble Calcutta High Court observed that the appellate court must peruse the record before deciding the appeal. A decision upon a perusal only of the judgment appealed against is not legal.
16. In Shyam Deo Pandey Vs. State of Bihar, 1971 (1) SCC 855, the Hon'ble Apex Court held that fulfillment of requirement for availability of record is necessary to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against not only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded.
17. In Sita Ram and others Vs. State, 1981 Cri. L.J. 65, it was held that in absence of the original record it is not possible to arrive at a decision 19 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.
18. In Bani Singh and others Vs. State of U.P., 1996(4) SCC 720, the Hon'ble Apex Court has held that the plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summarily dismissal, it must call the records and Section 386 mandates that after record is received, the appellate court may dispose of the appeal after hearing as indicated in the section.
19. After referring to various judgments in Chandrappa and others Vs. State of Karnataka, (2007)4 SCC 415, the Hon'ble Apex Court summarised the general principles regarding the powers of the appellate court while dealing with an appeal against the order of acquittal and held as under:-
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law;20
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
2120. Therefore, a judgment of acquittal cannot be interfered with unless the assessment of evidence and the conclusion drawn by the trial court are unreasonable, erroneous or perverse and for that purpose the appellate court must examine the reasons on which the order of acquittal was based but without the records, this Court cannot appreciate the evidences. Therefore, considering the case in hand, the impugned judgment of the acquittal of the respondents/accused cannot be interfered.
21. During the pendency of the appeal before Hon'ble Allahabad High Court, the original records, except judgment of the trial court, were weeded out. When records are destroyed, reconstruction of the records may be ordered and after reconstruction of records, if the order of acquittal is set aside, retrial may be ordered.
22. Mr. Narayan Hari Gupta, learned Advocate appearing for the respondents/accused submitted that in the circumstances of this appeal reconstruction of the records and retrial are not possible since in this very old matter important basic records are lost. In support of his submissions learned counsel for respondents-accused referred to the judgment dated 30.05.2018 of the Hon'ble Allahabad High Court passed in the case of Criminal Revision No. 1528 of 1991, Sri Kishan Vs. State. The Hon'ble Allahabad High Court posed the question 22 that a question would arise as to what happens when reconstruction is not possible and retrial will serve no useful purpose. In that matter a Criminal Revision was filed against the judgment dated 10.05.1989, passed by VIIth Assistant Sessions Judge, Agra in Sessions Trial No. 147 of 1988, under Section 308 IPC, whereby the revisionist was convicted and sentenced under Section 308 IPC and against the judgment and order dated 13.11.1991, passed by Vth Additional Sessions Judge in Criminal Appeal No. 71 of 1989, whereby Criminal Appeal had been dismissed and Judgment and Order of the court below was affirmed.
23. In that matter it was found that record of Criminal Appeal No. 71 of 1989 and Sessions Trial No. 147 of 1988 had been weeded out. After referring to various judgments, the Hon'ble Allahabad High Court answered the reference that after a lapse of approximately 34 years order of retrial will prove a mere wastage of time, money and energy without serving any good purpose. In these circumstances, the revisionists were acquitted.
24. In the matter of Zillar Vs. State, 1956 All WR (HC) 613, the appellants were convicted by the Sessions Judge on 21.01.1951 under Sections 304 and 148 IPC in respect of the offence committed on 02.04.1950. The appeal was filed on 24.01.1951 which came up for hearing in April, 1956 when it was 23 brought to the notice of the Court that the entire record of the case had been lost. The 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 FIR and the statements of witnesses taken under Section 161 of the Code were not available as they had been weeded out in the ordinary course.
25. "Retrial" means that the accused should be tried again. Such "Retrial" may be de novo trial or it may be from a particular stage. Before passing the order of reconstruction of records or for retrial, the court must consider whether directions for reconstruction and retrial would be practicable to arrive at the just decision of the case.
26. In Sita Ram and others Vs. State (Supra), it was held that where it is not possible to reconstruct the records 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.
27. In Karam Chand Vs. State of Uttar Pradesh, 2010(2) NCC 255, this High Court has held 24 that the offence took place in the year of 1987 i.e. 23 years ago, the reconstruction of the records was not practicable.
28. In the instant case, the incident in question is of the year 1987 and we are already in the middle of the year of 2019 and due to this inordinate delay all the records, except 43 pages of judgment of the trial court, had been weeded out. In the instant case, the said incident took place on 14.01.1987 and the respondents-accused were acquitted on 29.03.1990. Due to lapse of time and non-availability of important basic records, we do not consider it either practicable or just or expedient to order for reconstruction of records.
29. In State of U.P. Vs. Abhay Raj Singh and another (2004)4 SCC 6, the Hon'ble Apex Court has held that the proper course for the appellate court in the circumstances where records of trial court has been destroyed or is not available or is not made available to appellate court, direction for retrial should be issued but it has also been held that if 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 may be given for acquitting the accused. And the matter shall stand closed.
2530. A callous and inordinate prolonged delay of more than 32 years, which does not arise from the default of the respondents-accused, in this matter for the offence of punishable with death would plainly violate the constitutional guarantee of a speedy trial under Article 21 of the Constitution of India.
31. As a result, in the facts and circumstances of this instant appeal, after relying the decision of the Hon'ble Apex Court in State of U.P. Vs. Abhay Raj Singh (Supra), the appeal is dismissed accordingly. The respondents are on bail. Their bail bonds and surety bonds are discharged.
32. Respondents are directed to make compliance of Section 437-A of the Code within 15 days from the date of this order by appearing before the court concerned at District Haridwar and execute personal bonds and two reliable sureties each in the like amount to the satisfaction of the court concerned, which shall be effective for a period of six months.
33. Let a copy of this order be sent to the concerned court for intimation and compliance.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, CJ.) 24.07.2019 Sanjay