Allahabad High Court
State Of U.P. vs Shiv Prasad & Others on 14 May, 2018
Author: Vijay Lakshmi
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 41 Case :- GOVERNMENT APPEAL No. - 2381 of 1987 Appellant :- State Of U.P. Respondent :- Shiv Prasad & Others Counsel for Appellant :- A.G.A. Hon'ble Rajesh Dayal Khare,J.
Hon'ble Mrs. Vijay Lakshmi,J.
This Appeal has been filed by the State against the judgment and order dated 12.6.1987 passed by learned Special Judge (E.C. Act)/Additional Sessions Judge, Jalaun at Orai, in Sessions Trial No. 97 of 1985, connected with S.T. Nos.121, 122, 123 and 124 of 1985, u/s 307/279 I.P.C., 9 of the Opium Act, section 112 of the Motor Vehicle Act, 25 of the Arms Act and 60 of the Excise Act, whereby all the accused-respondents have been acquitted of the charges levelled against them. This appeal, was admitted as far back as on 17.1.1992, however, when the lower court's record was summoned, only a copy of judgment impugned was received along with the report that the record has been weeded out on 10.1.1990 (Natthi Kha) and on 21.1.1998 (Natthi Ka).
This Court, by various orders had directed the Sessions Judge, Jalaun at Orai, to make all sincere efforts to get the record reconstructed.
In compliance of the aforesaid orders, a letter dated 11.05.2018 has been sent by the District & Sessions Judge, Jalaun at Orai, along with the detailed report of the Special Judge (E.C. Act), Jalaun at Orai, stating therein that despite all possible efforts and due to non-availability of any document with any party, reconstruction of the lower court's record is not possible.
Except copy of the impugned judgment, no other document is available on the record because all other documents including the case diary have been weeded out and no copy is available with any party. Due to non-availability of the lower court's record, disposal of the appeal is not possible.
The Hon'ble Apex Court in the case of State of U.P. Versus Abhai Raj Singh & another reported in 2004 Supreme Court Cases (Cri) 901 has laid down the guidelines in cases where the record has been weeded out or has been destroyed or lost and its reconstruction is not possible. According to the Hon'ble Supreme Court :-
".........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 judgment shall operate and the matter shall stand closed. The appeals are accordingly disposed of."
In a similar case where lower court record was not available and reconstruction of record was not possible, a division Bench of this Court (Sita Ram and others Vs. State; 1981 Crl.L.J 65), acquitted the accused in view of the fact that the lower court record could not be reconstructed. This aspect of Sita Ram case (supra) was again considered by another division Bench of this Court in the case of Ram Nath Vs. State 1982 (19) ACC 128 (decided on 3.11.1981) wherein also following observations were made :-
"After making the aforementioned observations and in view of the fact that the court was not in a position to have the record of the case re-constructed, the Bench directed acquittal of the accused in that case. The principle laid down in Sita Ram's case fully applies to the facts of the present case. As all attempts to have the record re-constructed have failed, this Court is not in a position to affirm the conviction recorded by the trial court. So far as the question of ordering a re-trial is concerned, we find that in the instant case the incident in connection with which the accused were prosecuted, took place as far back as 13th of September, 1970, that is, more than eleven years earlier. In such circumstances it will not be desirable to direct a re-trial. In this view of the matter we have no option but to allow Criminal Appeal No.857 of 1976 and to set aside the conviction and sentence of Ram Nath and to acquit him of the offence with which he has been charged."
In similar circumstances another division Bench of this Court in the case of Brahmanand Shukla Vs. State of U.P. 2010 (69) ACC 749 made following observation in Para 10:-
"In the present case, as we have mentioned in the earlier part of the judgment only a copy of the Trial Court's judgment is available and no other documents like FIR, post-mortem report, copies of the documents which had been filed by the prosecution and were exhibited during trial, the statement of the witnesses recorded under section 161, Cr.P.C. are available despite various attempts to reconstruct the record. The incident is of the year 1979 i.e., the incident took place about 30 years back. In these circumstances, no fruitful purpose would be served by ordering retrial as the same cannot be conducted at all in absence of these documents.
In the light of the above discussions and circumstances mentioned above, we have no other alternative but to dispose of the appeal."
Under these circumstances and in absence of lower courts record the matter stands closed and the appeal is accordingly disposed of.
Office is directed to send a copy of this judgment to the court concerned for compliance.
Order Date :- 14.5.2018 Pcl