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TMI Blog2014 (5) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively. All the sentences have been directed to run concurrently. The accused persons Liladhar son of Lauki, Kundan Lal, Piarey Lal, Roop Lal and Liladhar son of Bihari Lal were acquitted of the said charges levelled against them by the impugned judgment and order dated 29.01.1980. It is relevant to mention here that in this appeal two accused appellants namely Sukhlal son of Moti Ram and Devi Ram son of Lalji, have already died during the pendency of this appeal hence their cases stood abated vide order dated 1.10.2012. Case of the surviving three appellants Lalman son of Jawahar, Ram Swaroop son of Liladhar and Chhotey Giri son of Pooran Giri for the purposes of this appeal is being considered by this Court. We have heard the learned counsel for the appellants and the learned AGA for the state. The biggest impediment we are confronting in this appeal is that even after exploring all possible resources at our command, the lower court record - exhibit Natthi (prosecution papers) - could not be made available to us. At the very outset it is relevant to mention that the entire lower court record is not available. The only lower court record available is the order sheets from 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v and Liladhar son of Hemraj. They challenged the accused persons whereupon Lalman fired a shot from pistol when the witnesses ran away. Thereafter the accused persons also made their escape good. The injured persons were taken to the Police Station Jahanabad on a cart where Budhsen lodged the report on 22.05.1978 at about 2:30 p.m. which is Ext. Ka-1. The first information report was noted down in the relevant chik and the case was registered against the accused persons and relevant entry was made in G.D. Ext. Ka-2. Shiv Kishore Mishra, S.I. Immediately proceeded to the spot and saw the dead body of Chaturi Lal lying on the field of Ghasi Ram. He prepared inquest report, diagram of the dead body, challan of the dead body vide Ext. Ka-3 to Ka-5 respectively. The Investigating Officer also collected the blood stained soil and plain earth on the field where dead body of Chaturi Lal was recovered and prepared memo thereof Ext. Ka-6. The dead body of Chaturi Lal was sent to the mortuary in a sealed cover for post mortem examination. Dr. V.P. Agrawal conducted the post mortem examination on dead body of Chaturi Lal on 23.5.1978 and prepared the report Ext. Ka-19. He found the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n middle. 4. Ecchymosis 5 cm x 4 cm on the and around left eye. 5. Ecchymosis 6 cm x 4.5 cm around right eye. 6. Lacerated wound 3 cm x 1 cm x bone on the inner aspect and back of right middle finger. Injuries sustained by Ghasi Ram on his person are as follows:- 1. Lacerated wound 5 cm x 1 cm x bone on left side of head. 2. Lacerated wound 4 cm x 0.5 cm x scalp on the right side of head. 3. Lacerated wound 5 cm x 0.5 cm x skin on the outer and middle of left upper arm. Injuries sustained by Mathura Prasad on his person are as follows:- 1. Lacerated wound 8 cm x 1 cm x scalp on right side of head. 2. Lacerated wound 4 cm x 1.5 cm x skin on the back of right ear. 3. Lacerated wound 1.5 cm x 0.5 cm x muscle at the root of nose. 4. Contused swelling 13 cm x 4 cm on the outer and upper of left leg. 5. Contused swelling 12 cm x 4.5 cm on the outer and upper part of right leg. Injuries sustained by Makhan Lal on his person are as follows:- 1. Lacerated wound 4 cm x 0.5 cm x bone on the right side of head. 2. Lacerated wound 7 cm x 0.5 cm x bone on the back of head right side. 3. Lacerated wound 1.5 cm x 0.3 cm x scalp on the right side of head. 4. Abraded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of head. 2. Lacerated wound 3 cm x 0.5 cm x skin on the left side of head. 3. Lacerated wound 3 cm x 0.5 cm x scalp on the right side back of head. 4. Contusion 4 cm x 2 cm on the back of left upper arm lower third. 5. Contusion 4 cm x 1 cm on the right side back of chest in middle. 6. Contusion 4 cm x 1 cm on the left side back of chest lower part. 7. Contusion 6 cm x 1 cm on the left side back upper part. Injuries sustained by Chhotey Giri on his person are as follows: 1. Lacerated wound 5 cm x 0.75 cm x scalp on the head in mid-line. 2. Lacerated wound 1 cm x 0.5 cm x muscle on the back of chest on the right side upper part. In the opinion of doctor, injuries sustained by all the aforesaid five injured persons were caused by some blunt weapon like Lathi which could have been caused about 12:00 noon on that very day (22.05.1978). After completing the entire formalities, the Investigating Officer filed charge sheet Ext. Ka-9 on 29.06.1978 against the accused persons except Liladhar also. On 28.07.1978 charge sheet Ext. Ka-10 was filed against Liladhar also. Thereafter the case of the casued persons was committed to the court of Sessions where the case was poste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to reconstruct the same for ensuring proper disposal of this appeal. Perusal of order sheet of this appeal shows that this appeal was admitted on 11.03.1980 when notices were issued and appellants were admitted to bail and the appeal was directed to be listed for hearing. Later on as per procedure, the lower court records were summoned. Several letters/reminders were issued to the District & Sessions Judge, Pilibhit to make available the lower court records. This process continued for a long span of time till the appeal ripened up for hearing. Order sheet dated 29.04.2003 reveals that lower court records summoned by this Court were not sent by the District Judge, Pilibhit. This appeal was listed peremptorily for hearing on 13.07.2012. Later on, the appeal was taken up for hearing on 01.10.2012 when the predecessor division Bench was confronted with dilemma of non-availability of the prosecution records and the Court observed that during course of hearing of this appeal, none of original records/Exhibits either from the prosecution or from the defence i.e. copy of the first information report, Chik report, post mortem examination report, injury reports, recovery memos, inques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Judicial Magistrate, Session Clerk of Additional District & Sessions Judge, Court No.3, Pilibhit, Record Room Civil, S.D.O. Sadar, seeking information. In pursuance of the notices, complainant Budhsen appeared and submitted that he is not possessing any document whatever relating to the aforesaid session trial. He only submitted that he is having one copy of the judgment which he has submitted. From Police Record Room, information was furnished that the first information is kept only for three years, post mortem examination report for one year, case diary, site plan and recovery memo for five years and charge sheet for one year. Police Record Room informed that no relevant document, whatsoever, could be obtained. Even report was sought from concerned Police Station Jahanabad wherefrom also no document was discovered. S.D.O. Sadar Pilibhit also reported non-availability of the first information report. Record Room Criminal submitted report that at the time when the records were sent to the High Court, Exhibit Natthi and Kha Natthi were not available. Record Room Criminal further disclosed that no paper relating to the aforesaid session trial is available with it. Similarly, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments of prosecution was entrusted to Sri Chandroday Kumar, Addl. Sessions Judge, Court No.2. Sri Chandroday Kumar, Addl. Sessions Judge, Court No.2 has submitted his report dated 12.4.2013. I have gone through his report. After exhausting all possible resources for obtaining the copies of the lost documents, learned Judge has come to the conclusion that reconstruction of the above lost documents is not possible. I also concur with the finding of the learned Addl. Sessions Judge, Court No.2, Pilibhit." Reconstruction of missing record was sought to be made from prosecution side as well whereupon an affidavit dated 13.02.2014 has been filed by N. Kolanchi, Superintendent of Police, Pilibhit wherein hectic efforts have been detailed in para 4, 5, 6, 7 & 8 which are reproduced hereinbelow: "4. That Para 283 of the Uttar Pradesh Police Regulation provides for keeping the records in Police Station and list of the same is given in Appedix I and II. According to Appendix-I the first information for a period of three years, charge sheet for a period of one year, case diary for five years and general diary for five years has to be kept in safe custody at Police Station and thereafter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 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 hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses, 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." In the above referred case of Sita Ram (supra) the division Bench 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-cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In view of the relevant case law discussed hereinabove and particularly guidelines provided by Hon'ble Apex Court in the case of Abhai Raj (supra), it is our considered opinion that all the three option ..... X X X X Extracts X X X X X X X X Extracts X X X X
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