Ashraf Shah and Ors. vs State

IkramulBari, J.—The appellants Ashraf Shah, Nathoo and Ram Behari alias Murgaha Pandit were convicted by the IXth Addl. Sessions Judge, Bareilly, of the offence punishable under Sections 399,402 and 326, IPC and were sentenced to various periods of rigorous imprisonment.

It was, however, reported that the record of the case burnt in the incident of fire in the record room of the District Judge, Bareilly, in the year 1979. On 11121995 the District Judge, Bareilly, informed this Court that the efforts to reconstruct the record could not succeed and it is not possible now to reconstruct the record of the case.

The learned Addl. Government Advocate submitted that in the absence of the record of the case, the only option for this Court is to tecord acquittal of the appellant. He has referred to the case of Sita Ram and others v State, 1981, CrLJ 65.

In the above mentioned case, the original record of the case was destroyed as a result of accidental fire and attempts to reconstruct the record did not succeed. This Court observed that for deciding the appeal perusal of the record is obligatory and the direction for retrial is not justified in view of the lapse of a long time between the trial and the decision of the appeal. The appeal in that case pertains to 1974 and the decision by this Court was recorded on 2081980. In the present case, the appeal was filed in 1977 and it has come up for hearing today. The circumstances of this appeal are similar to the case referred to by the learned Addl. Government Advocate.

Therefore, the appeal is to be allowed and the order of conviction and sentence under appeal is set aside. The appellants are acquitted of the charges under Sections 399,402 and 326.