Hira Lal and Others vs State of U.P.

B.K. Sharma, J.—This is an appeal against the judgment and order dated 15-4-1978 passed by Sri S.K. Verma, the then Vth Additional District and Sessions Judge, Bareilly in S.T. No. 396 of 1975, whereby he has convicted the accused appellants Hira Lal, Pathi Ram and Bankey of the offence u/s 307 34 IPC and sentenced each one of them to undergo R.I. for a period of 4 years.

Heard the learned counsel for the appellants and the learned A.G.A.

In this case, as per the report of the District Judge, the trial Court record was not available and the record could not be reconstructed and only the case diary of the police relating to the case could be available which could be of no avail for deciding this appeal on merits.

Learned counsel for the appellants has argued that in the absence of the record of the trial Court, the conviction of the accused-appellants cannot be maintained. He has further argued that in this case even a remand for retrial also would not be justified while the appeal has come up for hearing before this Hon''ble Court today on 24-3-1999 i.e. after a period of 25 years. In support of his contention, he has placed reliance on the following observations of a Division Bench authority Sita Ram v. State 1981 Cri LJ 65 in which it has been held (Para 11):

Where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible of the appellant 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 the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of FIR, statements of witnesses u/s 161 Cr.P.C, reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of FIR and statements of witnesses u/s 161 Cr.P.C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, 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.

He has also pointed out that this authority has been followed by three others Division of this Court :

(1) Ram Nath Vs. State, .

(2) 1992 ACC 219 SC (Saya Ram v. State).

(3) (29) 1992 ACC 233 (Aziz Khan v. State of U.P.).

In view of these authorities, it is plain that the conviction of the accused appellants cannot be affirmed in the help of the trial Court record. The case diary could be of no help without the Trial court record.

In the present case, even retrial cannot be justly and fairly ordered and would also be futile since the time gap between the occurrence and today''s date when the appeal come up for hearing is more than 25 years.

Consequently, the appeal is allowed. The conviction of the accused appellants Hira Lal, Pothi Ram and Bankey for the offence u/s 307 34 IPC is set aside and both of them are acquitted of the said offence. They are on bail from this court. They need not surrender to it. Their bail bonds are cancelled and sureties discharged.

Let a copy of this judgment be sent to the learned Sessions Judge, Bareilly for information and necessary compliance in the records.