Phool Chand and Others v. State of U.P

Court No. - 86 Case :- CRIMINAL APPEAL No. - 719 of 1986 Appellant :- Phool Chand And Others Respondent :- State of U.P. Counsel for Appellant :- S.D. N.Singh,Chandra Bhushan Mishra,Prem Shanker Mishra,S.D.N. Singh Counsel for Respondent :- A.G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1This criminal appeal has been preferred by the appellants - Phool Chand, Banwari Lal and Sohan against the judgement and order dated 27.02.1986 passed by Special Judge / Additional Session Judge, Allahabad in Session Trial No.242 of 1984 (State Vs. Phool Chand and others) under Sections 307, 307/34 IPC, Police Station Handia, District Allahabad convicting and sentencing the appellant Phool Chand for the offence under section 307 IPC to undergo 3 years rigorous imprisonment and appellants Banwari Lal and Sohan for the offence under section 307/34 IPC to undergo 3 years rigorous imprisonment.

¶2In this appeal, out of three appellants, appellant no.3 Sohan was reported to have died pending appeal so appeal has been ordered to have abated in respect of appellants no.3 Sohan vide order dated

9.11.2020. Thus, the appeal is being decided only in respect of appellant no.1 Phool Chand and appellant no.2 Banwari Lal.

¶3Learned counsel appearing for the surviving appellants as well as learned A.G.A. for the State are present.

¶4A pertinent question involved in this appeal is as to if the original record of the trial court is not available before the Appellate Court, what legal consequence would ensue.

¶5Learned counsel for the appellants has prayed for acquittal of the surviving appellants Phool Chand and Banwari Lal, as the entire record of this is missing and there is no possibility of reconstruction of lost record, as per report submitted by the District Judge, Prayagraj and now hearing of this Appeal is not possible for want of record. The present appeal pertains to year 1986. In view of all these facts particularly considering the fact that this appeal is pending for the last 37 years, it appears desirable that this appeal may be decided finally.

¶6A perusal of the record reveals that complete trial court record was summoned, but since original record of this case was missing and despite of making all efforts reconstruction of the record was not possible except the judgment, no other document is available on record to proceed with the present appeal.

¶7This Court vide order dated 2.8.2024 called for the report from the concerned District Judge as to whether the reconstruction of the trial court record pertaining to the present case was possible or not. In compliance thereof, a report dated 4.9.2024 sent by the District Judge, Prayagraj was received wherein it was submitted that reconstruction of the record of the present case is not possible.

¶8In the similar circumstances, a Division Bench of this Court dealt with the matter in Brahmanand Shukla Vs. State of U.P. reported in 2010 (5) ADJ 158 (D.B.). In the said matter, it was observed that - "In the present case, as we have mentioned in the earlier part of the judgment only a copy of the trial court's judgment is available and no other documents like FIR, post mortem report, copies of the documents which had been filed by the prosecution and were exhibited during trial, the statement of the witnesses recorded under Section 161 Cr.P.C. are available despite various attempts to reconstruct the record. The incident is of the year 1979 i.e. the incident took place about 30 years back. In these circumstances, no fruitful purpose would be served by ordering re-trial as the same cannot be conducted at all in absence of these documents. In the light of the above discussions and the circumstances mentioned above,we have no other alternative but to allow the appeal, set aside the conviction and sentence of the appellant and to acquit him. The appeal is allowed and the conviction and sentence of the appellant as recorded by the trial court is set aside and the appellant is acquitted of the charge levelled against him. His sureties and personal bonds are discharged. Let a copy of this judgment be certified to the trial court for its intimation."

¶9Subsequently the issue was again raised before the Division Bench of this Court in Government Appeal No.2528 of 1987, State of U.P. Vs. Subedar and others, which was an acquittal appeal and the Division Bench in the aforesaid matter found that - "The incident in the present case is of the year 1986 almost 29 years ago. The judgment of the trial court is of the year 1987. The appeal is pending for the last 29 years. In absence of the record the direction for retrial would be of no purpose inasmuch as, the FIR, inquest report, the injury report, the postmortem report, site plan and other recovery memos are not available and as such nothing can be proved by directing retrial. Further retrial after a lapse of such a long time would also not serve the ends of justice, inasmuch as, requiring the witnesses to depose about the incident which took place 29 years ago, their memory would be falling and they would not be in a position to give an accurate account of the incident. For the above reasons, we are not inclined to issue any direction for retrial. In such circumstances, we relying upon the judgment of the Apex Court in the case of State of U.P. Vs. Abhai Raj Singh and another [2004 (2) JIC 337 (SC)] and Division Bench judgment of this Court in the case of Brahmanand Shukla Vs. State of U.P. [LAWS (ALL)-2010-4-14], proceed to decide the appeals accordingly. The only option that remains with us is to dismiss the Government Appeal. Accordingly, the Government Appeal is dismissed."

¶10It is evident that the law laid down in Brahmanand Shukla (supra) case was also taken into account by the Division Bench in the judgment and order passed in Government Appeal No.2528 of 1987 (supra) and the law promulgated by the Hon'ble Apex Court in the matter of State of U.P. Vs. Abhai Raj Singh and Anr. (supra) established a principle on the subject that where substantial portion of record was not available and it was observed like this - "We, therefore, set aside the order of the High Court and remit the matter back for fresh consideration. It is to be noted at this juncture that one of the respondents i.e. Om Pal has died during the pendency of the appeal before this Court. The High Court shall direct re-construction 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 under Section 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. The appeals are accordingly disposed of."

¶11The same principle of law echoes in several decisions of the Hon'ble Supreme Court and this Court as well, such as Hari Ram Vs. State, Criminal Appeal No. 1239 of 1982 (date of decision

10.5.2016) and Raj Kumar Vs. State of U.P., Criminal Appeal No.29 of 1989 (delivered on 25.11.2020)

¶12The judgment of the Hon'ble Supreme Court was also considered in Government Appeal No.2528 of 1987 (supra).

¶13The dictum of law, which flows from the above is that if the substantial portion of trial court record is not available before the Appellate Court, an endeavour should be made firstly for the reconstruction of the record and if only reconstruction is not possible to facilitate the High Court to hear and dispose of the appeal, then possibility should be looked into for the retrial of the case and if due to the loss of vital and basic records of the trial court retrial and fresh adjudication of the matter is not possible, then in that case the impugned judgment and order should not be permitted to operate and the matter shall stand closed.

¶14In the present case, as admitted by the prosecution itself, since the reconstruction of the record is not possible except the impugned judgment and order, as a natural consequence thereof, retrial of the case is also not possible.

¶15Hence, in view of the legal principle enumerated in the aforesaid judgments, in my view, nothing remains in this appeal and on account of non-availability of the vital and important basic records, the conviction order cannot be sustained. This Court has no other alternative in these circumstances but to allow the appeal and set-aside the conviction and sentence of the appellants and to acquit them.

¶16Resultantly, the appeal is allowed and the conviction and sentence of the appellants, as recorded by the trial court vide impugned judgement and order dated 27.02.1986, is set-aside and the surviving appellants Phool Chand and Banwari Lal are acquitted of the charge levelled against them under Sections 307, 307/34 IPC respectively. Their sureties and personal bonds are ordered to be discharged.

¶17Let a copy of this judgment be certified to the trial court for intimation and necessary action. Order Date :- 9.9.2024 ss High Court of Judicature at Allahabad