TMI Blog2014 (5) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - CRIMINAL APPEAL No. - 466 of 1980 - - - Dated:- 30-5-2014 - Hon'ble Arun Tandon and Hon'ble Arvind Kumar Mishra-I, JJ. For the Appellant :- Y.K. Shukla For the Respondent :- D.G.A.,S.K.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions Judge, Pilibhit Exhibit Natthi (prosecution papers) are not available. Thus the essential prosecution papers i.e. FIR, Chik report, inquest report, post mortem examination report, site plan, charge sheet, injury reports and G.D. etc. are missing. Although we explored all possible avenues to get the missing records reconstructed, but our endeavour did not deliver the required record. However, this particular aspect of the case relating to missing of the prosecution papers and its consequence will be considered by us at the appropriate stage. The prosecution story, in a nutshell, as disclosed in the first information report is that Bhoop Ram and Brij Lal had a quarrel wherein Liladhar son of Louki abused Chaturi Lal. A report in this connection was lodged by Smt. Mehki. On 22.05.1978 at about 12:00 noon, Sukh Lal, Ram Swarup, Kundan, Piarey, Devi Ram, Roop Lal, Chhotey Giri, Lalman and Liladhar son of Louki arrived at the house of Budhsen. Lalman and Sukh Lal were armed with Pharsa, Liladhar was armed with spear and Lalman was armed with pistol while other persons were armed with Lathis. They called out inmates of the house whereupon Budhsen and his father Chaturi Lal came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft side. 5. Incised wound 2 cm x 0.5 cm x muscle just below lower border of mandible. 6. Incised wound 2 cm x 1 cm x bone fractured on the left side of face. 7. Incised wound 1 cm x 1 cm x muscle on the left side face. 8. Incised wound 3 cm x 0.5 cm on the left side of face at the lower border of mandible. 9. Contusion 5 cm x 2 cm on the top and outer aspect of right upper arm. 10. Contusion 2 cm x 2 cm on the front aspect of left thigh upper part. 11. Contusion 8 cm x 2 cm on the front of left thigh. The cause of death was reported to be shock and haemorrhage as a result of the aforesaid injuries. At a distance of five steps from the dead body of Chaturi Lal, a Lathi was lying, recovery memo of which was made vide Ext. Ka-7. Thereafter further investigation was carried on by Muniraj Singh S.I. who completed rest of the formalities. He also went to the hospital but found that the witnesses were not in a position to make statement, therefore, he could interrogate only Budhsen and also Liladhar son of Hemraj. He also interrogated some other persons on 23.05.1978 and recovered blood stained clothes of the injured persons. He also prepared site plan of the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Contused swelling 12 cm x 3 cm on the back and lower left forearm. On 24.05.1978, Dr. V.P. Agrawal also conducted post mortem examination of dead body of Ghasi Ram and prepared report vide memo Ext. Ka-20. He found the following ante mortem injuries on the dead body:- 1. Lacerated wound 5 cm x 1 cm x bone fracture underneath the parietal bone on the left side of head. 2. Lacerated wound 4.5 cm x 0.6 cm x scalp on the right side of head. 3. Ecchymosis 5 cm x 4 cm around right eye and lacerated wound 0.75 cm x 0.3 cm on the outer part of Ecchymosis. 4. Abrasion 1.5 x 1 cm on the outer aspect of left upper arm. 5. Lacerated wound 4.5 cm x 0.6 cm x skin on the outer and middle of left upper arm. 6. Contusion 2 cm x 1 cm on the outer aspect of left upper arm. 7. Contusion 2.5 cm x 0.75 cm on the back and outer part of left elbow joint. 8. Abrasion 1.5 cm x 1 cm on the front of chest lower part. The cause of death was reported to be shock and haemorrhage as a result of ante mortem injuries. Dr. V.P. Agrawal also medically examined injuries of Sukh Lal, Ram Swaroop, Devi Ram, Lalman and Chhotey Giri - the accused - sustained by them on the very date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C. Accordingly, charges were framed against the accused persons on 24.04.1979 and the same were read over and explained in Hindi to them, to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case examined as many as seven witnesses namely Budhsen PW-1 informant, Ganga Ram PW-2, Liladhar son of Hemraj PW-3 eyewitness of the occurrence. They are witnesses of fact and they have narrated the very manner of the incident as to how it was perpetrated by the accused persons. Besides, the prosecution has also examined S.I. Ram Nivas Dixit PW-4 who recorded FIR and made entry thereof in G.D., S.I. Shiv Kishor Misra PW-5, and S.I. Muniraj Singh PW-6 both investigated the case and Dr. V.P. Agrawal PW-7 who medically examined injuries both on the side of the informant as well as the accused persons and conducted post mortem examinations of both the deceased persons. Except as above, no other testimony was adduced by the prosecution. Thereafter the case for the prosecution was closed and was posted for recording statement of the accused persons under section 313 Cr.P.C. In their statement under section 313 Cr.P.C, the accused persons stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records will be essential for just and proper decision of this appeal. Then efforts were made by the devision Bench to make available the missing records with the help of the counsel for the parties concerned and one month's time was granted to both the sides to make available relevant prosecution records/papers at their respective end. Hearing of the appeal was adjourned accordingly to next date. In the same order dated 01.10.2012, however it was also directed that a message be sent to the District Judge, Pilibhit with the request to intimate the Court shortly about the above progress. Thereafter the appeal was taken up for hearing by our predecessor Bench when again the same impediment blocked the way for proper hearing of this appeal. At that point of time, the division Bench explicitly observed that hearing of the appeal is not possible unless missing records are reconstructed. In this regard, our predecessor Bench of this Court specifically observed vide order dated 19.02.2013 that we have lower court records but there is no first information report, charge sheet, post mortem examination report, inquest report and other relevant documents of the prosecution and we give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed their inability to produce any document relating to the concerned session trial, even their counsel Sri V.D. Pandey, expressed his inability to produce any document. One of the counsel for accused died, therefore, information was sought from his son who orally informed that he is not possessing any papers relating to the aforesaid session trial. The aforesaid accused persons Lalman and Ram Swaroop were again summoned and they were asked to make available papers whereupon they expressed their inability to produce the papers. They submitted that they are not possessing any papers like the first information report, site plan, post mortem examination report and charge sheet etc. Notices were also issued to another accused Chhotey Giri at his address whereupon report was submitted from Police Station Jahanabad that the accused Chhotey Giri is living at present in village Deen Nagar, Police Station Bahedi, District Bareilly. On information being sought from Bareilly it transpired that the accused Chhotey Giri went somewhere away from village Deen Nagar in October, 2012. It was reported that the accused Chhotey Giri perhaps has fallen in company with saints and his whereabout ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t mortem report, injury report, site plan of aforesaid case crime has been sent to the Court concerned along with the charge sheet on 29.6.1978. 6. That in compliance of the order passed by this Hon'ble Court, one Sub-Inspector namely Sri Swami Nath Mishra of Police Station Jahanabad has contacted the complainant of the present case namely Sri Budhsen and the complainant has told that he has no document pertaining to the aforesaid case except copy of the judgment. A photostat copies of GD entries made in this regard are collectively annexed herewith as Annexure-1 to this affidavit. 7. That the police has also contacted counsel of the complainant namely Sri Somdutt Sharma and he has also told that he has no documents pertaining to the aforesaid case crime. 8. That the police has also contacted Sri Abhay Kumar Saxena, the present DGC Criminal, Pilibhit and he has also told that he has no document pertaining to the present case. He has further stated that between the period from 1978 to 1980 Sri Dungar Singh was DGC Criminal and now he has died. Thus reconstruction of the missing record i.e. exhibit Natthi (prosecution papers) was not possible even after exhausting al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385(1) which requires the Court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard. At this stage, we may record that the learned counsel for the appellants has laid stress on point that in the absence of relevant prosecution papers, he will not be able to extend argument and assail the finding of the conviction recorded by lower court. He further submitted that perusal of the record is necessary for proper appreciation of case. Learned AGA for the State also concurred with above submissions. Absence of prosecution papers is great impediment and we look forward to seeking guidance from authoritative pronouncement of Hon'ble Apex Court. In the case of State of U.P. Vs. Abhai Raj Singh and another reported in AIR 2004 SC 3235, in Para 8, it has been held as under: It has been the consistent view taken by several High Courts that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.05.1978 and missing record could not be reconstructed even after exhausting all possible means. Papers like FIR, Chik report, injury reports, inquest report, post mortem examination report and site plan etc. are vital prosecution papers. Thus direction for retrial and fresh adjudication at this stage will not serve the purpose because retrial is rendered almost impossible due to loss of basic prosecution papers discussed above. 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 careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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