Jagdish and Others vs State of U.P.

Vinod Prasad, J.—Three Appellants namely Jagdish, Aman Singh and Devi Dutt are aggrieved by the judgment and order dated 17.12.1980 passed by 4th Additional and Sessions Judge, Muzaffarnagar in S.T. No. 233 of 1980 (State v. Jagdish and Ors., by which, trial Judge found the case of prosecution proved to hilt against the Appellants only for the charge u/s 201 I.P.C. and convicted them for the said charge for three years RI vide impugned judgment and order dated 17.12.1980. Appeal filed by the Appellants was admitted by this Court on 7.1.1981.

Pendent elite this appeal, one of the Appellant Amar Singh expired and his appeal stands abated vide order dated 5.7.2007 by this Court, which order is on the order sheet. Hence now, this Court is left with appeals filed by rest of the three Appellants being Appellant No. 1 Jagdish, Appellant No. 2 Aman Singh and Appellant No. 4 Devi Dutt.

Out of the three, two Appellants, Jagdish and Amar Singh are real sibling brothers being sons of Sunder and Devi Dutt is son of Sita Ram is alleged to be their friend.

According to the prosecution case, Appellants were the resident of village Pelbha, P.S. Jhinjhana, District Muzaffarnagar. Three of the Appellants Jagdish, Aman Singh and Amar Singh, real sibling brothers and Devi Dutt their friend, on the intervening night between 29/30th March, 1979 at about mid night were alleged to have murdered Harbiri. FIR of the incident was got registered, matter was investigated and ultimately accused persons were charge sheeted. FIR of the incident is Ex. Ka-1, chik FIR Ex. Ka-2, which was prepared by head constable Raj Bahadur Singh on 6.4.1979 at 12.05 A.M. Investigation into the crime was conducted by S.I. Talewer Singh P.W.-5, who after preparing site plan Ex. Ka-4 and after conducting investigatory formalities, charge sheeted the accused by Ex. Ka-5 on 4.5.1979. Finding the case of the accused triable by court of sessions, it was committed to the Sessions Court and 4th Additional Sessions Judge, Muzaffarnagar tried them in S.T. No. 233 of 1980 (State v. Jagdish and Ors..

As stated above, trial Judge found the case of the prosecution disproved so far as charge of murder was concerned, acquitted the accused for offence u/s 302 I.P.C. However, it found credible and reliable evidences against the accused for committing offence u/s 201 I.P.C. and, therefore, convicted them for the said charge implanting a sentence of three years RI vide impugned judgment and order of conviction. Hence this appeal.

Perusal of the order sheet of the appeal indicate that the trial court record was weeded out and in spite of the best efforts, it could not be reconstructed. Incident, as is mentioned herein before is of the year 1979. More than 31 years has lapsed since that time. In absence of record, the appeal of the Appellants cannot be heard on merits nor this Court is in a position to critically appreciate the evidences. Directing retrial of the Appellants after lapse of three decades when the original record has been weeded out will not be in the interest of justice. Retrial should not be ordered only for the purposes of harassment of the accused. The other reason is scanty chance of availability of witnesses and it is quite likely that the parties may have been living without any pickring among them. Conviction is also only for an offence of 201 I.P.C. On such facts and circumstances of the case, the view has been taken by the Apex Court in case of State of U.P. v. Abhai Raj Singh and Anr. 2004 SCC (Crl) 901 as follows;

The High Court shall direct reconstruction of the records within a period of six months from the date of receipt of our judgment from all available or possible sources with the assistance of the prosecuting agency as well as the defending parties and their respective counsel. If it is possible to have the records reconstructed to enable the High Court itself to hear and dispose of the appeals in the manner envisaged u/s 386 of the Code, rehear the appeals and dispose of the same, on their own merits and in accordance with law. If it finds that reconstruction is not practicable but by ordering retrial interest of justice could be better served -adopt that course and direct retrial - and from that stage law shall take its normal course. If only reconstruction is not possible to facilitate the High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the Sessions Court is also rendered impossible due to loss of vitally important basic records -in that case and situation only, the direction given in the impugned judgment shall operate and the matter shall stand closed.

Time and again, this Court has been faced with a situation like the one which has cropped up in the instant appeal. It has taken a view that in case reconstruction of the record is not possible, the appeal cannot be decided in consonance with Section 386 Code of Criminal Procedure and, therefore, it should be allowed. Some of the exemplar decisions in this respect are Deena Nath v. State of U.P. 1983 (1) crimes 131 , Hira Lal and Others Vs. State of U.P., Bhunda and Others Vs. State of U.P., Sornam v. State of Tamilnadu 1989 Mad.L.W. (Crl) 449 , Prabhat Narain Mehrotra Vs. State of U.P., Piarey Lal v. State 1988 (2) crimes 37 , Vishwa Nath and Another Vs. State of U.P., and Sita Ram and Ors. v. State, 1981 CriLJ 65

The conviction of the Appellants is only for an offence u/s 201 I.P.C. of concealing evidence of crime and the maximum sentence imposed upon them is only three years. It will be a futile exercise to remand the case back to the trial court for retrial because reconstruction of the record is not possible. There is no appeal by the State for enhancement of sentence and, therefore, futility of a remand order is per se, writ large on the facts and circumstances of the appeal.

In view of above, the appeal is allowed. Impugned judgment of conviction and sentence dated 17.12.1980 passed by 4th Additional and Sessions Judge, Muzaffarnagar in S.T. No. 233 of 1980 (State v. Jagdish and Ors., u/s 201 I.P.C. is hereby set aside and the three Appellants Jagdish, Aman Singh and Devi Dutt are hereby acquitted of the said charge. Appellants are on bail, they need not surrender. Their bail bonds and surety bonds are discharged.

Let a copy of this judgment be certified to the trial court for its intimation.