Allahabad High Court
Baleshwar Lal And Others vs State Of U.P. on 14 January, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 81 Case :- CRIMINAL APPEAL No. - 74 of 1983 Appellant :- Baleshwar Lal And Others Respondent :- State of U.P. Counsel for Appellant :- Jai Singh Chandel,Rajesh Kumar Counsel for Respondent :- A.G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Rajesh Kumar, learned counsel for the appellant no. 2 and Sri G. P. Singh, learned A.G.A. for the State.
2. The appeal of appellant no. 1 has been abated vide court's order dated 18.11.2019.
3. This appeal has been preferred against the judgment and order dated 10.01.1983 passed in S.T. No. 179 of 1982 State of Baleshwar and another whereby the appellant no. 1 Baleshwar and appellant no. 2 Sunil Kumar were found guilty under Section 307 & 34 I.P.C. and each of them were sentenced to undergo rigorous imprisonment for seven years and for offence under Section 325 read with Section 34 I.P.C. the appellants were sentenced to undergo rigorous imprisonment for five years and both the sentences would run concurrently.
4. The lower court record was summoned by this Court and in response to which the copy of judgment passed by the trial court dated 10.01.1983 only has been sent and no other documents have been provided/sent by the the lower court. Thereafter, a direction was issued by this Court dated 15.11.2017 that in view of contradictory reports of District Judge, Ballia, he shall hold an inquiry with respect to dispatch of complete lower court record as stated by the Incharge of Record Room, Ballia and shall verify from the Register maintained by Incharge Record Room as to how many documents were sent to this Court.
5. In compliance of the said order, letter dated 30.01.2018 was received from District Judge, Ballia in which, it is submitted by him that in pursuance to this Court's order dated 15.11.2017, an inquiry was initiated with regard to dispatch of record of S.T. no. 179 of 1982 and also a report was called for from Officer-in-Charge of Record Room/Additional District Judge, Fast Track Court No. 3, Ballia, enclosing photo copy of the Goshwara of above case, the Officer-in-Charge has reported that Nathi 'Ka' and 'Kha' of the said S.T. had already been weeded out by the Record Keeper on 12.08.1993 and 27.07.1985 respectively. The statement of Class-IV employee namely Sri Harindra Kumar Yadav was also recorded in this matter, who stated that in compliance of order dated 08.06.2012 of District Judge, Ballia appointing him as Special Messenger, he had carried the record of the S.T. No. 179 of 1982 to High Court. Since, 09.06.2012 and 10.06.2012 were holidays, he got the record received on 11.06.2012 and had got received only judgment of S.T. No. 179 of 1982 in one Nathi and its four booklets, which he had received from Record Room. He has further stated that since Sampurna Patrawali was written in covering letter dated 30.05.2012 of Record Room, he had written Sampurna Patrawali Ek Natthi, in the Courier Register. Further, it is mentioned in the said letter that the District Judge, Ballia himself perused the report of Officer-in-Charge of Record-Room/Additional District Judge, Fast Track Court No. 03, Ballia as well as statement of Special Messenger Sri Harindra Kumar Yadav and was convinced that Natthi 'K' and 'Kha' of the said S.T. had already been weeded out by the then Record Keeper on 12.08.1993 and 27.07.1985 and that as per the Special Messenger, he had got only judgment of the said S.T. received in High Court on 11.06.2012 in one Natthi and its four booklets, which he had received from Record Room and District Judge has given final opinion that only judgment of the said S.T. in one Nathi and its four booklets were got received in the High Court by Special Messenger on 11.06.2012.
6. Thereafter, another order dated 14.10.2019 was passed by this Court directing the District Judge, Ballia to look into the matter and explore the possibility of reconstruction of the record and submit his report by the next date positively.
7. In compliance to the said order, it is submitted by District Judge, Ballia vide letter dated 08.11.2019 that the Special Judge (E.C. Act)/Additional District & Sessions Judge, Ballia was directed to explore the possibility of reconstruction of record of S.T. No. 179 of 1982 and as per the report of the said officer dated 07.11.2019, the reconstruction was not possible for the reasons given in the said report, copy of which was enclosed. Further it is recorded in the said letter that for further compliance of this Court's order, the C.J.M. Ballia was directed to enquire the living status of appellant no. 1 Baleshwar Lal. After making inquiry about the living status of Baleshwar Lal, Chief Judicial Magistrate, Ballia had sent the required death report of the said appellant to High Court vide endorsement No. 3664/XV dated 07.11.2019, copy of which has been enclosed. In the report of the said officer Sri Pran Vijay Singh, Additional District Judge, Special Judge (E. C. Act.) dated 07.11.2019, it was mentioned that he had given a notice to S.H.O. P.S. Gadwar, District Ballia and according to the report of said S.H.O. there was no paper available at the P.S. pertaining to said S.T. Thereafter he also sent a notice to the Record Keeper of District Court, Ballia and as per the report of said Record Keeper, Nathi 'Kha' on 27.07.1985 and Nathi 'Ka' on 12.08.1993 were destroyed/weeded out leaving aside the judgment for disposal of the criminal appeal No. 74 of 1983 pending before this Court, copy of the said judgment was transmitted to High Court on 10.06.2012 and only requisition was available in record. It is further mentioned by him that the co-appellant of the said criminal appeal namely Sunil Kumar was also issued notice who submitted in his report dated 05.11.2019 that no documents relating to the said S.T. were available with him as the said S.T. was contested through counsel Raja Ram Singh, who had file with him and he has already expired and he could not make available any documents and thus, the said officer expressed opinion that the reconstruction of the record of the said S.T. was not possible.
8. Thereafter, this Court passed order dated 18.11.2019, directing the District Judge, Ballia that after thorough examination of the said report sent earlier, it was found that the said report did not contain the fact as to whether the informant of this case was approached or not in order to ensure whether he had any documents available with him which would be helpful in reconstruction of the record, therefore, within 15 days time he would sent a report to that effect. In pursuance to that order, District Judge Ballia has sent a letter dated 04.12.2019 by which it was reported that the Special Judge(E.C. Act)/Additional District and Sessions Judge, Ballia was directed to take all such steps which might be required in accomplishment of this Court's order and submit its report and vide report of that officer dated 30.11.2019, it was stated that he called the informant of the case through S.O. of Police Station Garwar, who has submitted his report supported with report of Gram Pradhan of concerned village to the effect that the informant Jamuna has died much before, his son Sheoji was approached who stated that his father died in the year 1985 and at that time he was just five years old, therefore, he neither has any specific knowledge nor was he in possession of any documents. Therefore, despite best possible efforts, the reconstruction of the record of said S.T. was not possible and copy of the report of Additional District Judge/Special Judge (E.C. Act) was enclosed. In the said report dated 30.11.2019, the said officer has mentioned that he had summoned a report from S.H.O. Garwar to produce the informant of this case before him so as to find out as to whether any document relating to the said S.T. was available with him or not in order to reconstruct the record of the said case and S.O. Garwal sent a report dated 30.11.2019 whereby it was mentioned that Jamuna (informant) had died and written report of Gram Pradhan was also annexed. There was only son of the deceased namely, Shivji, with whom telephonic conversation was made on his mobile phone No. 8896855424 whereon he informed that he does a job in Lucknow and also disclosed that his father has already died in the year 1985 and he does not have any knowledge of this case nor did he have any paper related to it.
9. It is argued by the learned counsel for the appellant that in view of the said reports, it is apparent that due to lack of availability of record of lower court this appeal cannot be decided on merits, and has placed reliance upon the judgment of Hon'ble Apex Court passed in State of U.P. Vs. Abhay Raj Singh and another, 2004 50 ACC 691, relevant para of which is quoted hereinbelow:
"9.The High Court did not keep the relevant aspects and considerations in view and came to the abrupt conclusion that re-construction was not possible merely because there was no response from the Sessions Judge. The order for re- construction was on 1.11.1993 and the judgment of the High Court is in Criminal Appeal 1970 of 1979 dated 25.2.1994. The order was followed in Criminal Appeal No.1962 of 1979 disposed of on 16.8.1995. It is not clear as to why the High Court did not require the Sessions Court to furnish the information about re-construction 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 re-construction 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 reconstructed 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 its own merits and in accordance with law. If it finds that re- construction is not practicable but by order retrial interest of justice could be better served - adopt that course and direct retrial - and from that stage law shall take its normal course. If only reconstruction is not possible to facilitate High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by 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."
10. In brief, the prosecution case is that the appellant, in the intervening night of 19/20.05.1980, at about 01:00AM in pursuance of common object had caused injuries by fire arm weapon to the injured Jamuna Yadav (PW1) by which he suffered as many as four injuries which included fracture also. After examining as many as five witnesses which included Shiv Shankar (PW2), Dr. R. N. Sharma (PW3), Sri Chandra Shekhar Singh, I.O. (PW4) and Dr. I.B. Devedi as PW5. The trial court convicted the accused appellant under the above Sections.
11. Section 385, Cr. P.C. provides that 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. Sub-section (2) provides that 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. Section 386 prescribes the powers of the appellate court. That power has to be exercised after perusing the record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears. In Queen-Empress v. Khimat Singh, 1889 A.W.N. 55 this Court observed "the appellant is entitled in law to have a hearing in this Court of his appeal, but the loss of the record has deprived him of the only means of making good the pleas of the appeal...." A Division Bench of the Calcutta High Court in Abbash Ali v. Emperor, 19 Ind. Cases 182 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.
12. 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.
13. 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 this Court 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.
14. In such a situation two courses are open to this 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 Sevugaperumal, AIR 1943 Mad 391 (2) 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 (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 22.06.1942. The appeal was filed on 06.08.1942 and the original record was destroyed by fire on 17-8-1942. The appeal came up for hearing on 05.11.1942. 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.
15. In Madhu Sudhan Pradhani v. The State, 1963 (2) Cr. L.J. 103, 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.
16. A similar situation arose before this Court in Zila v. State, 1956 A.W.R. 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.
17. On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before this Court, I am 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. I am 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.
18. In the present case, the incident took place in the intervening night of 19/20.05.1980 while the appellants have been convicted vide order dated 10.01.1983 and the appeal was preferred before this Court on 11.01.1983 and since then the appeal is pending and by now approximately 37 years have passed. The record 'Nathi Ka & Nathi Kha' of the S.T. No. 179 of 1982 are reported to have been weeded out on two respective dates i.e. 12.08.1993 and 27.07.1985. As per the report of District Judge, Ballia dated 08.11.2019 with which the report of Officer i.e. Additional District Judge, Special Judge, E.C. Act, Ballia is also annexed, on the basis of which the District Judge has submitted his report, it has also been mentioned that all possible efforts have been made but there is no possibility of reconstructing the record and the injured of this case who could be the best witness to prove the case has also died. Therefore, this Court finds that at this far distant point of time, it is being found that even the statement of witnesses which were recorded during the investigation are not available and therefore if re-trial is ordered, the statement of whatever number of witnesses surviving is recorded, regarding which there is no status report except that the injured has been reported dead, the Court would find it difficult to appreciate the evidence of said witnesses for want of their earlier statement recorded by the police under Section 161 Cr.P.C. Therefore, in view of the law cited above, I do not find that any useful purpose would be served to order retrial.
19. In these circumstances, this appeal deserves to be allowed and the impugned judgment and order deserves to be set aside and appellant stands acquitted, they are on bail, they need not to surrender and their bail bonds are discharged.
20. Let a copy of this order be transmitted to the lower court below through concerned District Judge by Fax.
Order Date :- 14.1.2020 VPS