TMI Blog2015 (12) TMI 1709X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER 1. Heard learned counsel for the appellants, learned AGA and perused the record. 2. The present appeal has been preferred by appellant no. 1 to 5 against the judgment and order of conviction and sentence dated 16.10.1981 passed by 5th Additional District and Sessions Judge, Bijnor in Session Trial No. 350/79, under sections 147, 148, 302/149 IPC, P.S. Chandpur, District Bijnor. 3. Appellant no. 5 died and as such the appeal in respect of him stood abated. In respect of appellant no. 1 to 4, namely, Tej Pal Singh, Prem Pal Singh, Sheo Dhian Singh, Om Pal Singh, in compliance of the Non Bailable Warrant issued by this Court, they surrendered before the C.J.M. Bijnor and were released on bail on 26.10.2015. 4. As per office report dated 28.4.2003, lower court record was not received. Thereafter on 29.4.2003, the other coordinate Bench of this Court directed to obtain the lower court record. As per office report, the information was received from District Court Bijnor to the effect that the lower court record was missing, hence, the direction was issued for reconstruction of the lower court record. Subsequently, the information was given that the witness Smt. Nara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered 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- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or his counsel and the prosecution if the appeal is not dismissed summarily under Section 384 Cr.P.C. 8. In an authoritative pronouncement reported in AIR 1996 Supreme Court 2439 (1) Bani Singh and others Vs. State of U.P., Hon'ble Apex Court has elaborated meaning of Section 385 and 386 of Criminal Procedure Code 1973 in Para No. 8 of the judgment which is being reproduced hereinbelow: Section 385 (2) clearly states that if the Appellate Court does not dismiss the appeal summarily, it `shall', after issuing notice as required by sub-section (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the Court need not call for the record. On a plain reading of the said provision, it seems clear to us that once the Appellate Court, on an examination of the grounds of appeal and the impugned judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally, unless the appeal is restricted to the extent and legality of the sentence. Obviously, the requirement to send for the record is provided for to enable the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. In a similar case where lower court record was not available and reconstruction of record did not succeed, a division Bench of this Court has in the case of Sita Ram and others Vs. State 1981 Crl.L.J 65, made observation in Para 11 which is quoted herebelow: On a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations 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. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the same, the appeal cannot be heard on merits. It appears that the re-construction of the record is also not possible, in-as-much as original documents have all burnt out. 4.. Under these circumstances, both the appeals stand allowed and the conviction of the appellants and sentences awarded to them are hereby set aside. They are on bail. They need not surrender. Their bail bonds and sureties shall stand discharged. 16. In view of the aforesaid discussion, considering the judgment of the Apex Court and of this Court, since inspite of best efforts neither reconstruction of record is possible nor re-trial is possible, hence, the criminal appeal cannot be decided on merit in absence of relevant prosecution papers including the statement of witnesses and as such there is no option but to set aside the impugned judgment of conviction. In view of the fact, the judgment and order of conviction and sentence dated 16.10.1981 passed by 5th Additional District and Sessions Judge, Bijnor in Session Trial No. 350/79, under sections 147, 148, 302/149 IPC, P.S. Chandpur, District Bijnor, is hereby set aside. 16. Accordingly, the present appeal is allowed. The appellants are on bai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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