Chhotey Khan and Others vs State of U.P.

Hon''ble Vinod Prasad, J.—Heard learned Amicus Curiae and learned A.G.A.

The three appellants, who are real sibling brothers namely Chhotey Khan, Halley Khan and Nanhey Khan, all sons of Aziz Khan, resident of Village Chandrapur Qaaiyana, Police Station Killa, District Bareilly have challenged their conviction under sections 307/34 I.P.C. and imposed sentence of three years R.I vide judgment and order dated 22.12.1978 passed by Ist Additional District and Session''s Judge, Bareilly in S.T. No.156 of 1977.

Perusal of the trial court record indicates that only three appellants were convicted and rest of three accused were acquitted by trial Judge. The appeal was admitted in this Court on 19.1.1979 and trial court record was requisitioned. There is a report that reconstruction of the record is not possible. Both the parties, accused and informant, were noticed for getting record reconstructed but inspite of best efforts endeavor went in-vain. Incident in the present case had occurred on 31.8.1975 at 11.00 A.M. in Village Chandrapur Qaziyan, P.S. Killa more than 36 years ago. In the absence of original evidences, exhibits and material document, it is not possible to decide the appeal on merits. Sentence which has been awarded is only of three years.

In the absence of original record, since reconstruction is not possible, remanding the appeal back for retrial will not serve any useful purpose at all.

Since, reconstruction of the record is not possible, applying the decision of the Apex Court in State of U.P. Vs. Abhai Raj Singh and Another, , there is no option left for this Court but to allow the appeal specially in view of unsatisfactory nature of evidences as is called out from the impugned judgment.

The appeal is allowed.

The impugned judgment of conviction and sentence of all appellants are hereby set aside and all the appellants are acquitted of all the charges. Appellants are on bail, they need not surrender, their bail bonds and surety bonds are discharged.

Let copy of the judgment be certified to the trial court for it''s intimation.