Khalil Ahmad vs State of U.P.

This appeal arises out of the judgment and order dated 24-8-1977 passed by the 1st Additional District and Sessions Judge, Bareilly, in ST No. 181 of 1975 convicting the Appellant u/s 324 IPC and sentencing him to a fine of Rs. 500/- and in default of payment of fine to undergo six months RI.

Briefly stated, the Appellant Khalil was charged u/s 307 IPC while another co-accused Sarwar Ali was charged u/s 307 read with Section 34 IPC for inflicting knife injuries to one Israr Ali on the night between 10th/11th April 1974. The 1st Additional District and Sessions Judge vide the impugned order dated 24-8-1977 found the Appellant not guilty u/s 307 IPC but convicted him u/s 324 IPC and sentenced him to the period already undergone and a fine of Rs. 500/-. Similarly, Co-accused Sarwar Ali was found not guilty u/s 307/34 IPO but was convicted u/s 352/34 IPC and was sentenced to the period already undergone.

The instant appeal was admitted by this Court on 30-8-77 and the realisation of fine from the Appellant was stayed. However, before the appeal could come up for hearing there was an incident of fire in the record room, Civil Courts, Bareilly. In reply to letter No. 802 dated 5-2-82 summoning the record of the Sessions Trial Sri P.K. Dixit, Officer Incharge Record Room, Bareilly, vide his letter dated 12-2-1982 informed this Court that it was not possible to send the record of the case as it was not available and appeared to have been burnt in the fire. In view of the non-availability of the record efforts were made for reconstructing it. However, vide letter dated 25-1-1984 Sri Mehrotra, Ist Additional District Sessions Judge. Bareilly, informed this Court that the record of ST No. 181 of 1975 which had been destroyed in the fire as reported earlier could not be reconstructed inspite of all the efforts. Accordingly, on 15-5-1984 this Court ordered for the hearing of the appeal.

Apparently the material before me is not sufficient which may help me in the disposal of the appeal on merits. As contemplated by Sub-section (2) of Section 385 Code of Criminal Procedure this Court had sent for the record of the case. Section 386 Code of Criminal Procedure lays down the powers of the appellate court. Such power for deciding the appeal has to be exercised on a perusal of the record and hearing counsel for the parties. In view of the non-availability of the record in this case the requirement of Section 386 Code of Criminal Procedure cannot be met. In Queen Empress v. Khimat Singh 1889 AWN 55 this Court observed:

The Appellant is entitled in law to have a hearing in this Court of his appeal, but the loss of the record has deprived him of the only means of making good the pleas of the appeal....

A mandatory duty is thus cast on the appellate Court to peruse the record before deciding the appeal and a decision upon a perusal only of the judgment appealed against is not legal. This view finds support from a Division Bench decision of the Calcutta High Court in Abbas Ali v. Emperor (1913) 19 Ind. Cas. 181 : 14 CrLJ 182. It would thus be not safe nor legally permissible to affirm the conviction of the Appellant merely on the basis of the judgment of the trial court. The perusal of the record having the evidence of the parties and other material are essential elements for the hearing of the appeal. Such a situation arose in Sita Ram v. State 1981 ACR 65 and a Division Bench of this Court observed that where it was not possible to reconstruct the record which had been either lost or destroyed it was not legally permissible for the appellate court to affirm the conviction of the Appellant and that the perusal of the record of the case was one of the essential elements of the hearing of the appeal. The Division Bench further observed that if the time gap between the incident and the date on which the appeal came up for hearing was short then a re-trial could be ordered as the witnesses could be available to depose about the case without straining their memory, but if the case came up for consideration after a long gap of years, it was neither proper nor just to direct re-trial of the case. The view taken by the Division Bench in Sita Ram''s case (supra) was approved by another Division Bench of this Court in Ram Nath v. State 1982 ACR 128. In that case Ram Nath was convicted for an offence u/s 302 IPC and was sentenced to imprisonment for life. An appeal was preferred. The other accused Ram Narain was, however, acquitted of the charges under Sections 307, 148, 149/324 and 149/323 IPC. The State preferred an appeal against the acquittal of Ram Narain. When both the appeals came up for hearing it was found that the record of the case was not available and efforts to reconstruct it went futile. The Court accordingly acquitted Ram Nath and dismissed the State appeal against acquittal.

In the instant case also all attempts have failed to reconstruct the record and thus this Court is not in a position to affirm the conviction. As regards the direction for re-trial I think it would also be futile at this stage after a lapse of about eleven years. In the circumstances I have no option left but to acquit the Appellant.

In the result the appeal is allowed and the conviction and sentence passed against the Appellant by the 1st Addl. District and Sessions Judge, Bareilly, vide order date 24-8-77 are set aside.

Appeal allowed.