Chhate Lal vs State of U.P. and Others

Vinod Prasad, J.—This appeal was filed in the year 1980 and after a gap of 30 years it has been listed for final hearing.

In the revised call, Sri S. Goswami, learned Counsel for the Appellant, who has filed this appeal, is not present to argue the appeal.

Sri Sarvesh Kumar Dubey advocate is appointed as Amicus Curiae to argue the appeal.

The sole Appellant Chhote Lal is aggrieved by order of acquittal, recorded by Ist Judicial Magistrate, Mathura, in Criminal Case Trial No. 818 /78 of 1977, dated 25.4.1979, by which trial Judge has acquitted seven Respondents-accused namely; Bhajan Lal, Chandan, Hira Lal, Smt. Ladli Devi, Ratan Lal, Sukhdeo Painter and Batkan Lal. Appeal was admitted by this Court on 1.5.1980 and the trial court record was summoned. After a gap of 30 years this appeal is listed for final hearing in the cause list, but Sri S.V. Goswami, learned Counsel for the Appellant is not present to argue the appeal, even in the revised call.

Applying law laid down by apex court in Bani Singh and ohters Vs. State of U.P., Sarvesh Kumar Dubey advocate was appointed as Amicus Curiae to argue the appeal.

Perusal of the record of this appeal indicate that trial court record was requisitioned by this Court. Initially the said record was received in this Court in Criminal Misc. Case No. 3690 B of 1979 but vide Dispatch No. 3001 dated 1.7.1980 the same was retransmitted to the court of Sessions Judge Mathura, vide office report dated 18.2.2010. Sessions Judge, Mathura, therefore, was requested to transmit the record of the trial court to this Court. In reply the Sessions Judge, Mathura has sent a letter dated 25.2.2010 intimating this Court that according to the Goswara, available in record room, district court Mathura, the original record of the trial court has already been weeded out on 30.6.1984. The aforesaid letter by District Judge, Mathura is flagged ''b'' to this appeal.

In above view, reconstruction of the trial court record is impossible. The appeal is against acquittal for offences triable by Magistrate. Perusal of the judgment of acquittal is also not possible, as the same is not available on record of this appeal.

In the above view of the matter, the appeal is liable to be dismissed, as the judgment of acquittal cannot be converted into one of conviction. The incident must have occurred prior to 1980, three decades ago, and therefore, after such laps of time, in absence of original record, it will not be in the interest of justice to remand the case back, when reconstruction of the original record is impossible.

The appeal therefore stands dismissed and acquittal of Respondent accused through impugned judgment is hereby confirmed.

Dismissed.

For assistance to this Court, as Amicus Crrie, office is directed to pay Rs. 2000/- (Two thousand) only to Sri Sarvesh Kumar Dubey as his fees.