2014 (5) TMI 1152 - HC - Indian Laws

Re-trial of the case on account of absence of the essential prosecution papers - conviction under Section 148 302/149 and 307/149 I.P.C - Held that - We find ourselves unable to decide this appeal on merits. It is pertinent to mention that learned counsel for the appellants insisted time and again when the appeal was taken up for hearing that in absence of the prosecution papers he will not be able to make any submission on merits of the case for which availability of the prosecution papers are essential. As discussed above re-trial of the case is not possible on account of absence of the essential prosecution papers i.e. first information report Chik FIR site plan inquest report post mortem examination report charge sheet case diary injury reports etc. Even affidavit filed by Sri N. Kolanchi Superintendent of Police Pilibhit dated 13.02.2014 unambiguously discloses information regarding the period for preservation of the prosecution papers and consequent thereto weeding out of the same after lapse of the stipulated period. In para 9 of the affidavit it has been disclosed that the relevant prosecution papers have been weeded out due to which the deponent is handicapped to reconstruct the documents pertaining to the present case. In view of the above particular circumstances the order of re-trial will not serve any purpose after gap of around 35 years when the incident took place on 12.05.1978. As per the settled principles of criminal jurisprudence every accused carries with him presumption of innocence even at appellate stage. Therefore as per guidelines laid down in the case of Abhai Raj (2004 (3) TMI 774 - SUPREME COURT ) we conclude that the lower court judgment of conviction and sentence dated 29.01.1980 is liable to be set aside. Accordingly the appeal is allowed. The impugned judgment and order dated 29.01.1980 is hereby set aside and the present surviving appellants namely Lalman Ram Swaroop and Chhotey Giri are acquitted of offences with which they have been charged. Their bail bonds are cancelled and sureties are discharged.

Summary

Issues Involved:
1. Non-availability of lower court records.
2. Efforts for reconstruction of missing records.
3. Legal implications of missing records on appeal hearing.
4. Determination of retrial feasibility.
5. Final judgment and acquittal due to missing records.

Detailed Analysis:

1. Non-availability of lower court records:
The court faced a significant impediment as the lower court record, including essential prosecution papers like FIR, charge sheet, inquest report, post mortem examination report, site plan, and injury reports, were missing. Despite extensive efforts, these records could not be made available, which posed a challenge for the appeal's adjudication.

2. Efforts for reconstruction of missing records:
The court and the District & Sessions Judge, Pilibhit, undertook various measures to reconstruct the missing records. Notices were issued to the complainant, police record room, medical officers, and other relevant authorities. Despite these efforts, it was reported that the documents had been weeded out as per the retention policy, and reconstruction was deemed impossible.

3. Legal implications of missing records on appeal hearing:
The court examined the legal framework under Sections 384, 385, and 386 of the Criminal Procedure Code, which mandates the perusal of lower court records for a fair hearing of the appeal. The absence of these records prevented the court from fulfilling this requirement, thus impacting the ability to decide the appeal on its merits.

4. Determination of retrial feasibility:
The court considered the feasibility of a retrial in light of the missing records. Citing precedents, it was observed that a retrial would not serve justice due to the significant time lapse (around 35 years) since the incident, which would strain witnesses' memories and hinder the prosecution's ability to present a coherent case.

5. Final judgment and acquittal due to missing records:
Given the inability to reconstruct the records and the impracticality of a retrial, the court followed the guidelines laid down by the Supreme Court in similar cases. The presumption of innocence favored the accused, leading to the conclusion that the conviction could not be upheld without the essential records. Consequently, the court set aside the lower court's judgment and acquitted the surviving appellants, canceling their bail bonds and discharging their sureties.

Conclusion:
The appeal was allowed, and the judgment of conviction and sentence dated 29.01.1980 was set aside. The surviving appellants were acquitted due to the non-availability of essential prosecution records, which rendered a fair hearing and retrial unfeasible.