Nand Ji and Others v. State of U.P

Court No. - 86 Case :- CRIMINAL APPEAL No. - 759 of 1983 Appellant :- Nand Ji And Others Respondent :- State of U.P. Counsel for Appellant :- B.N. Tewari,Abhay Raj Singh Counsel for Respondent :- A.G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1This criminal appeal has been preferred by the appellants - Nandji, Hardas and Lilawati against the judgement and order dated 24.03.1983 passed by Special Judge / Additional Sessions Judge, Ballia in Session Trial No.8 of 1983 (State Vs. Nandji and others) under Sections 304 Part-II/34, 323/34 IPC, Police Station Bansdih Road, District Ballia convicting and sentencing the appellants for the offence under section 304 Part-II/34 IPC to undergo 5 years rigorous imprisonment and under section 323/34 IPC to undergo 6 months rigorous imprisonment.

¶2In this appeal, out of three appellants, appellant no.1 Nandji and appellant no.2 Hardas were reported to have died pending appeal so appeal has been ordered to have abated in respect of appellants no.1 and 2 vide orders dated 4.1.2024 and 20.11.2019 respectively. Thus, the appeal is being decided only in respect of appellant no.3 Lilawati.

¶3Sri Abhay Raj Singh, learned amicus curiae appearing for the sole surviving appellant - Lilawati 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 amicus curiae for the appellant has prayed for acquittal of the sole surviving appellant Lilawati, as the entire record of this case has been weeded out as per report of District Judge, Ballia and now hearing of this Appeal is not possible for want of record. A perusal of the record reveals that complete trial court record was summoned, but only a part of the record was sent by the District Judge, Ballia which includes only impugned judgment and order. No other document is available on record to proceed with the present appeal.

¶6It reveals from the perusal of the record that except the impugned judgment and order, rest of the record has been destroyed / weeded out. Report dated 6.1.2020 submitted by the District Judge, Ballia shows that the entire record of this case (except judgment and order in original) has been weeded out on

16.8.1993. This Court vide orders dated 7.8.2020 and 29.8.2024 called for the report from the concerned District Judge as to whether the retrial and reconstruction of the trial court record pertaining to the present case was possible or not. In compliance thereof, reports dated 12.10.2020 and 10.9.2024 sent by the District Judge, Ballia were received wherein it was submitted that neither reconstruction of the record nor retrial of the present case is possible.

¶7In 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."

¶8Subsequently 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."

¶9It 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."

¶10The 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)

¶11The judgment of the Hon'ble Supreme Court was also considered in Government Appeal No.2528 of 1987 (supra).

¶12The 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 be permitted to operate and the matter shall stand closed.

¶13In the present case, as admitted by the prosecution itself, since the reconstruction of the record is not possible and no other record except the impugned judgment and order of the trial court is available, as a natural consequence thereof, retrial of the case is also not possible.

¶14Hence, 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 appellant and to acquit him.

¶15Resultantly, the appeal is allowed and the conviction and sentence of the appellant, as recorded by the trial court vide impugned judgement and order dated 24.03.1983, is set-aside and the sole surviving appellant Lilawati is acquitted of the charges under Sections 304 Part-II/34, 323/34 IPC levelled against her. Her sureties and personal bonds are ordered to be discharged.

¶16Let a copy of this judgment be certified to the trial court for intimation and necessary action.

¶17Registrar General of this Court is directed to pay honorarium of Rs.10,000/- to Shri Abhay Raj Singh, learned amicus curiae for rendering assistance in the matter. Order Date :- 26.9.2024 ss High Court of Judicature at Allahabad