Piarey Lal and Others vs State of U.P.

Vinod Prasad, J.—In this appeal four sibling brothers Piyare, Hiralal, Puran Lal and Sitaram, have challenged their conviction u/s 325/34, I.P.C. and imposed sentence of five years R.I. recorded by II Ird Addl. Sessions Judge, Pilibhit in S.T. No. 109 of 1977, State v. Piyarey Lal and Ors. vide his impugned judgment and order dated 6.7.1979.

In bird''s eye view, prosecution allegations against four Appellants are that on 30.4.1976 at 5 p.m. they committed murder of Gendan Lal by a blunt object near a water channel. Information about the occurrence was lodged by Lalta Prasad at the police station Jahanabad on the same day at 11 p.m. covering a distance of four k.ms. Autopsy on the dead body was conducted by Dr. R. S. Sharma, P.W. 5, who had proved his post-mortem examination report Ext. Ka Doctor has noted three ante-mortem injuries on the corpse of the deceased. The F.I.R. of the informant was registered as Ext. Ka-1 and corresponding G.D. entry is Ext. Ka-2. S.I. Babu Singh commenced the investigation of the crime who got the inquest on the dead body conducted and got prepared the inquest report and other papers Exts. Ka-3 to Ka-5 and thereafter sealing it, the same was dispatched to the mortuary through constable Sri Krishna Mishra and Naubat Singh for the purpose of autopsy. Blood stained earth and articles were recovered vide Ext. Ka-6. Investigating Officer also recovered the weapon of assault and the rope material Exts. 2 and 3 and prepared their recovery memo Ext. Ka-7. During investigation Investigating Officer had also made spot inspection and had prepared site plan Ext. Ka-8. Completing investigation he has charge-sheeted accused-Appellants vide Ext. Ka-9.

Submission of charge-sheet resulted in summoning of all the accused persons by the court of the Magistrate, who finding their case triable by Court of Session''s committed it to Sessions Court for trial.

During trial, in order to establish Appellants guilty prosecution examined in all five witnesses out of whom P.W. 1 Lalta Prasad, P.W. 2 Puran Lal were the witnesses of facts. S.I. Bhagwat Singh, P.W. 3, S.I. Babu Singh P.W. 4 and Dr. R. S. Sharma, P.W. 5 were formal witnesses.

On the evidence led before it, after summation of facts and circumstances of the case trial court vide his impugned order dated 6.7.1979 convicted all the Appellants u/s 325/34, I.P.C. and imposed sentence of five years R.I. Hence, instant appeal challenging that judgment and order by the Appellants.

6., This appeal was admitted on 12.7.1979, and trial court record was requisitioned for disposal of this appeal. However, order sheet of the appeal indicate that Sessions Judge, Pilibhit had informed on 6.8.2003 that trial court record has already been weeded out on 17.3.1999. In such a situation this Court ordered for reconstruction of the record on 3.9.2003 with a period of three months.

In pursuance of the direction by this Court, District Judge, Pilibhit endeavoured for the reconstruction of the record and had appointed Addl. Sessions Judge/F.T.C. No. 3, Pilibhit, Sri S. S. Lal an enquiring officer to inquire into the matter. The Inquiring Officer vide his report dated 18.9.2004, found that reconstruction of the record of the concerned Sessions Trial No. 109 of 1977, State v. Pyarey Lal and Ors. is impossible and therefore, in turn, Sessions Judge, Pilibhit also reported to this Court on 21.8.2009, that reconstruction of the record is not possible. After perusing both the reports I am of the opinion that any further direction or endeavour for reconstruction of the record will only be a futile exercise without any fruitful result.

On the merits of the matter as can be perceived through the impugned judgment and order it transpires that according to the prosecution allegation because of grazing of buffaloes an altercation ensued between the deceased Gendan Lal and Piyarey Lal Appellant. At the instigation of Piyarey Lal all other Appellants reached the spot and belaboured Gendan Lal near a water channel, who after sustaining serious injuries squatted on the ground and the accused persons then retreated from the spot. Informant and many co-villagers had witnessed this incident. Lalta Prasad, informant, thereafter, brought his family members to the scene of the assault and leaving the injured under their supervision went to search village chaukidar whom he found in village Kharua. Accompanied with the village chaukidar Lalta Prasad went to the police station Jahanabad, where he lodged his written first information report, which was recorded at 11 p.m.

Dr. R. S. Sharma, P.W. 5 who had conducted autopsy on the dead body of the deceased on 1.5.1976 on the internal examination had found parietal and temporal bone fractured, membrane were ruptured and brain matter was coming out of the wound. Semi-digested food material was present in the large intestine. Following ante-mortem injuries were detected on the dead body by the doctor:

In doctor''s opinion cause of deceased death was shock and haemorrhage as a result of sustaining injury.

All the accused had denied prosecution allegations and incriminating circumstance appearing against them in the prosecution evidence in their statements u/s 313, Code of Criminal Procedure

The trial Judge after going through the evidences came to the conclusion that the charge u/s 302/34 is not established, but the Appellants are guilty for offences u/s 325/34, I.P.C. and therefore, convicted them for the said charge and sentenced them as noted in the opening paragraph of this order. Hence, this appeal.

When the appeal was called out, nobody appeared for the Appellants to support the appeal and therefore, Sri Amit Saxena, advocate was appointed amicus curiae to argue the appeal.

Sri Saxena submitted that in the absence of the lower court record when reconstruction is also not possible the appeal of the Appellants cannot be decided on merits. He submitted that the procedure prescribed u/s 385/386, Code of Criminal Procedure has to be observed in deciding an appeal on merits and the said procedure lays down that if an appeal is not dismissed in limine at the stage of admission then a date has to be fixed for hearing of the same after noticing both the parties. On the date so fixed record of the case has to be perused and then only the appeal can be decided on merits after hearing Appellant or his pleader in support of the appeal. In support of his contention Sri Saxena relied upon Sections 384, 385 and 386 of the Code (Code of Criminal Procedure) which are extracted below for a ready reference:

Summary dismissal of appeal.- (1) If upon examining the petition of appeal and copy of the judgment received u/s 382 or Section 383, the appellate court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:

Provided that--

(a) no appeal presented u/s 382 shall be dismissed unless the Appellant or his pleader has had a reasonable opportunity of being heard in support of the same;

(b) no appeal presented u/s 383 shall be dismissed except after giving the Appellant a reasonable opportunity of being heard in support of the same, unless the appellate court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such inconvenience as would be disproportionate in the circumstances of the case;

(c) no appeal presented u/s 383 shall be dismissed summarily until the period allowed for preferring such appeal has expired.

(2)....

(3) Where the appellate court dismissing an appeal under this section is a Court of Sessions or of the Chief Judicial Magistrate, it shall record its reasons for doing so.

(4) Where an appeal presented u/s 383 has been dismissed summarily under this section and the appellate court finds that another petition of appeal duly presented u/s 382 on behalf of the same Appellant has not been considered by it, that Court may, notwithstanding anything contained in Section 393, it satisfied that it is necessary in the interest of justice so to do, hear and dispose of such appeal in accordance with law.

Procedure for hearing appeals not dismissed summarily.- (1) if the appellate court does not dismiss the appeal, it shall cause notice of the time and place at which such appeal will be heard to be given--

(i) to the Appellant or his pleader;

(ii) to such officer as the State Government may appoint in this behalf

(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant; and

(iv) if the appeal is u/s 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.

(2)....

(3)....

Powers of the appellate court.- After perusing such record and hearing the Appellant or his pleader, if he appears, and the public prosecutor, if he appears, and in case of an appeal u/s 377 or Section 378, the accused, if he appears, the appellate court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction:

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence--

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order; and

(e) make any amendment or any consequential or incidental order that may be Just or proper.

Thus, what has been enacted in the statute is that no appeal can be decided without perusal of the record. Even if the appeal has to be dismissed summarily, the perusal of the consideration thereof is indispensable as is laid down u/s 384, Code of Criminal Procedure u/s 385, Code of Criminal Procedure procedure which has to be followed if the appeal is not dismissed summarily is provided according to which a notice is required to be given mentioning time and place of hearing of the appeal to the Appellant, the Government advocate and to the complainant. Subsequent Section 386, Code of Criminal Procedure provides that after perusal of the record and hearing the Appellant or his pleader and the public prosecutor appellate court may pass judgment in the appeal. Under such a procedure when I scan the present appeal I find that perusal of record is not possible as the same has already been weeded out. Reconstruction of the record after a lapse of more than three decades of the incident is also an impossibility and the court below has shown it''s inability for such reconstruction. In such a situation it has been observed by the Apex Court in the case of State of U.P. v. Abhai Raj Singh 2004 SCC 901 : 2004 (2) ACR 1491 (SC), as follows:

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 its own merits and in accordance with law. If it finds that re-construction is not practicable but by order 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 High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by 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.

Earlier also it has been held that in absence of record appeal has to be decided by acquitting the accused. For a ready reference see Bani Singh and ohters Vs. State of U.P., Rishi Nandan Pandit and Others Vs. State of Bihar, State of U.P. v. Shankar 1154; State of Tamil Nadu Vs. Rajendran, State of U.P. v. Kishan AIR 2005 SC 1250 : 2005 (1) ACR 192 (SC) and State of U.P. v. Pappu alias Yunus AIR 2005 SC 1248 : 2005 (1) ACR 194 (SC).

Mr. Saxena submits that directing for re-trial of the whole case, while the incident had occurred 34 years ago, will not be a justified exercise as all the evidences of the occurrence must have lost its efficacy. He further submits that statement u/s 161, Code of Criminal Procedure as well as other record including original postmortem examination report, inquest report and other documents also must have been weeded out and therefore, directing for re-trial for the case will only amount to the harassment of the parties without any fruitful results.

Learned A.G.A., after having gone through the report of the Sessions Judge also submits that on the peculiar facts of the case, directing for retrial will not be very material but he contended that the Judge was not very justified.

Having given anxious consideration to all the attending circumstances I am of the view that the appeal preferred by the accused persons against their conviction in this Court is their first appeal. The Apex Court has held that the first appeal is a continuation of trial. Sections 384 to 386, Code of Criminal Procedure leaves no room for doubt that for deciding an appeal on merits perusal of the trial court record is sine qua non to critically appreciate evidences to separate the grains from the chaff. It is incumbent upon the appellate court to look into the record independently than what has been stated by the trial court and come to it''s own conclusions which is not possible in this appeal. So far as direction of retrial is concerned, in view of the fact that total documentary as well as other evidences have been lost directing for re-trial will be very unfair to the accused persons as they will never be able to convince the Court that allegations levelled by the prosecution and the deposition by it''s witnesses are not true. The spot scene must have been altered by now. Resultantly in consonance with above exposition of law by the Supreme Court there is no option left but to allow this appeal and set aside the impugned conviction and sentences imposed on the Appellant.

In view of the above, this appeal is allowed. The conviction and sentence of the accused-Appellants are hereby set aside and they are acquitted charged u/s 325/34, I.P.C. All the Appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.

A copy of judgment is directed to transmit to the trial court for its intimation.