Piarey Lal and Others vs State

A.N. Dikshita, J.—The appeal arises against the judgment and order dated 20-2-79 passed by VIII Additional Sessions Judge, Bareilly in ST No. 653 of 1976 convicting Piarey Lal u/s 307 IPC and sentencing him to undergo RI for a period of 3 years while Sunder Lal and Deshraj who were found guilty and convicted u/s 307/34 IPC were also sentenced to undergo RI for a period of 3 years.

Facts in brief are that Piarey Lal was charged u/s 307 IPC for attempting to murder Manik Chand by inflicting knife injuries on his person on 10-4-76 at about 5.30 p.m. in Mohalla Surkha, District Bareilly with such intention or knowledge that by such act it may cause death of Manik Chand, Sunder Lal and Deshraj who were also companions of Piarey Lal were also prosecuted alongwith him on charges under Sections 307/34 IPC.

The prosecution story was that Raghunandan owned an Ahata in Mohalla Surkha, P.S. Prem Nagar, district Bareilly. This Ahata was bounded by high walls with a gate on the southern wall. About 10-13 persons were occupying various tenements as tenants. Manik Chand few months back to the date of the incident took on rent a tenement in this Ahata and was living with his wife. To the south of the house of Piarey Lal was the house of Manik Chand. The house occupied by Manik Chand was needed by Piarey Lal but instead of being let out to him the landlord gave it on rent to Manik Chand. Thus a grudge was nursed by Piarey Lal against Manik Chand.

In support of the prosecution case necessary evidence was adduced. Dr. P.K. Bose PW 1, Manik Chand PW 2, Sub-Inspector V.K. Sharma PW 3, Smt. Kamlesh PW 4, S.I.A.K. Tiwari PW 5 and Dr. S.K. Mukerji PW 6 were examined. In defence Het Ram Harit, Puran Lal, Chaddami Lal and Somnath were produced to decry the prosection case. Manik Chand PW 2, Sub-Inspector V.K. Sharma PW 3 and Smt. Kamlesh PW 4 produced on behalf of the prosecution supported the prosecution story. The medical evidence of the doctors Dr. P.K. Bose PW 1 and Dr. S.K. Mukerji PW 6 also indicated that the injury could have been caused on the date and time as alleged by the prosecution by a sharp edged weapon which was sufficient in the ordinary course of nature to cause death. The learned lower Court believed the prosecution version and discarded the defence set up by the accused. The Appellant Piarey Lal was convicted u/s 307 IPC while Sunder Lal and Desh Raj were convicted under Sections 307/34 IPC and all the three of them were sentenced to undergo RI for three years.

Aggrieved the Appellants have filed the instant appeal which was admitted on 2-3-79. The Appellants were ordered to be released on bail during the pendency of the appeal.

This appeal has come up for hearing after a lapse of more than 8 years. However, before the appeal could be listed for hearing an incident of fire in the record room of civil Court, Bareilly took place. When the record of the lower Court was sent for it was revealed that it has been destroyed in fire. Later on vide letter dated 13-12-83 it was directed that the record of the case be reconstructed. In reply to this letter Sri. Mahesh Chand VIII Additional Sess. Judge, Bareilly vide his letter dated 6-2-84 informed that inspite of all the efforts having been made for reconstructing the record the same could not be done. Even the D.G.C. expressed his helplessness in rendering assistance for the reconstruction of the record. The report from the police station also indicated that the case diaries were also not available. The accused persons also filed an application that they have no paper available with them which may assist the Court below for the reconstruction of the record. It is thus manifest that the record of the lower Court could not be reconstructed.

Besieged with such a situation apparently the material before me is not sufficient enough which may help me in the disposal of the instant appeal on merits. Sub-section (2) of Section 385 Code of Criminal Procedure provides for the summoning of the record of the Court below while the powers of this Court are enjoined u/s 386 Code of Criminal Procedure which provides the manner in which the appeal has to be disposed of. While exercising such powers a perusal of the record of Court below and hearing Counsel for the parties is necessary. The requirement of Section 386 Code of Criminal Procedure cannot be met in view of non-availability of the record. A mandatory duty is cast on the appellate Court to peruse the record before deciding the appeal and any decision without such perusal and only on the basis of the judgment appealed against would not be in conformity with the requirement of law. In Queen Empress v. Khimat Singh 1889 All. WN 55 it was observed by this Court as under:

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....

To affirm the conviction of the Appellant merely on the basis of the judgment of the trial Court which is appealed against would be neither safe nor legally permissible. Records of the lower Court comprises of the relevant material the Statement of the witnesses, the injury report, the charge sheet and all such records and which material is essential element for the disposal of the appeal. A mandatory duty is thus cast on the Appellate Court to persue 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) Indian Cases 181. The perusal of the record having the evidence of the parties and the 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 retrial 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 (supra) was approved by another Bench of this Court in Ram Nath v. State. In the case of Khalil Ahmad v. State of U.P. 1986 ACR 493 a similar view was taken by me.

In the present appeal all attempts have failed for the reconstruction of the record as stated above and in such a situation it is not possible to affirm the conviction of the Appellants.

To issue any direction at this stage for the re-trial would also be a futile exercise and moreso after a lapse of about 12 years. I have as such no option but to acquit the Appellants.

In view of the above, the appeal is allowed and the conviction and sentence recorded against the Appellants by VIII Addl. Sess. Judge Bareilly vide order dated 20-2-1979 are hereby set aside. The Appellants are on bail. They need not surrender and their bail bonds are discharged.