TaxTMI 
TaxTMI 
2014 (5) TMI 1152
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....sonment and three years' R.I. respectively. All the sentences have been directed to run concurrently. The accused persons Liladhar son of Lauki, Kundan Lal, Piarey Lal, Roop Lal and Liladhar son of Bihari Lal were acquitted of the said charges levelled against them by the impugned judgment and order dated 29.01.1980. It is relevant to mention here that in this appeal two accused appellants namely Sukhlal son of Moti Ram and Devi Ram son of Lalji, have already died during the pendency of this appeal hence their cases stood abated vide order dated 1.10.2012. Case of the surviving three appellants Lalman son of Jawahar, Ram Swaroop son of Liladhar and Chhotey Giri son of Pooran Giri for the purposes of this appeal is being considered by this Court. We have heard the learned counsel for the appellants and the learned AGA for the state. The biggest impediment we are confronting in this appeal is that even after exploring all possible resources at our command, the lower court record - exhibit Natthi (prosecution papers) - could not be made available to us. At the very outset it is relevant to mention that the entire lower court record is not available. The only lower c....
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....ospital. The occurrence was seen by Munnal Lal, Bhudev and Liladhar son of Hemraj. They challenged the accused persons whereupon Lalman fired a shot from pistol when the witnesses ran away. Thereafter the accused persons also made their escape good. The injured persons were taken to the Police Station Jahanabad on a cart where Budhsen lodged the report on 22.05.1978 at about 2:30 p.m. which is Ext. Ka-1. The first information report was noted down in the relevant chik and the case was registered against the accused persons and relevant entry was made in G.D. Ext. Ka-2. Shiv Kishore Mishra, S.I. Immediately proceeded to the spot and saw the dead body of Chaturi Lal lying on the field of Ghasi Ram. He prepared inquest report, diagram of the dead body, challan of the dead body vide Ext. Ka-3 to Ka-5 respectively. The Investigating Officer also collected the blood stained soil and plain earth on the field where dead body of Chaturi Lal was recovered and prepared memo thereof Ext. Ka-6. The dead body of Chaturi Lal was sent to the mortuary in a sealed cover for post mortem examination. Dr. V.P. Agrawal conducted the post mortem examination on dead body of Chaturi Lal on 23.5.1978 ....
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....deep at the root of nose. 2. Lacerated wound 1.5 cm x 0.5 cm x skin on the right upper lip. 3. Lacerated wound 1.5 cm x 0.5 cm x skin on the chin in middle. 4. Ecchymosis 5 cm x 4 cm on the and around left eye. 5. Ecchymosis 6 cm x 4.5 cm around right eye. 6. Lacerated wound 3 cm x 1 cm x bone on the inner aspect and back of right middle finger. Injuries sustained by Ghasi Ram on his person are as follows:- 1. Lacerated wound 5 cm x 1 cm x bone on left side of head. 2. Lacerated wound 4 cm x 0.5 cm x scalp on the right side of head. 3. Lacerated wound 5 cm x 0.5 cm x skin on the outer and middle of left upper arm. Injuries sustained by Mathura Prasad on his person are as follows:- 1. Lacerated wound 8 cm x 1 cm x scalp on right side of head. 2. Lacerated wound 4 cm x 1.5 cm x skin on the back of right ear. 3. Lacerated wound 1.5 cm x 0.5 cm x muscle at the root of nose. 4. Contused swelling 13 cm x 4 cm on the outer and upper of left leg. 5. Contused swelling 12 cm x 4.5 cm on the outer and upper part of right leg. Injuries sustained by Makhan Lal on his per....
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.... 3. Contusion 8 cm x 4 cm on the left side back of chest, lower part. Injuries sustained by Devi Ram on his person are as follows: 1. Lacerated wound 6 cm x 0.5 cm x scalp on the left side head. 2. Contusion 4 cm x 2 cm on the inner side and back of left forearm in middle. Injuries sustained by Lalman on his person are as follows: 1. Lacerated wound 4 cm x 0.5 cm x scalp on the right side of head. 2. Lacerated wound 3 cm x 0.5 cm x skin on the left side of head. 3. Lacerated wound 3 cm x 0.5 cm x scalp on the right side back of head. 4. Contusion 4 cm x 2 cm on the back of left upper arm lower third. 5. Contusion 4 cm x 1 cm on the right side back of chest in middle. 6. Contusion 4 cm x 1 cm on the left side back of chest lower part. 7. Contusion 6 cm x 1 cm on the left side back upper part. Injuries sustained by Chhotey Giri on his person are as follows: 1. Lacerated wound 5 cm x 0.75 cm x scalp on the head in mid-line. 2. Lacerated wound 1 cm x 0.5 cm x muscle on the back of chest on the right side upper part. In the opinion of doctor, injuries sustained by all the afor....
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....ri are found guilty of committing the crime charged with. Accordingly, the trial court acquitted rest of the accused persons-Liladhar son of Lauki, Kundan Lal, Piarey Lal, Roop Lal and Liladhar son of Bihari Lal. We are conscious of the fact that in absence of records- basically the prosecution papers - it would not be feasible for us to express any view on merits of the appeal. Perusal of order sheet shows the various steps taken by this Court to trace out the missing records and efforts made to reconstruct the same for ensuring proper disposal of this appeal. Perusal of order sheet of this appeal shows that this appeal was admitted on 11.03.1980 when notices were issued and appellants were admitted to bail and the appeal was directed to be listed for hearing. Later on as per procedure, the lower court records were summoned. Several letters/reminders were issued to the District & Sessions Judge, Pilibhit to make available the lower court records. This process continued for a long span of time till the appeal ripened up for hearing. Order sheet dated 29.04.2003 reveals that lower court records summoned by this Court were not sent by the District Judge, Pilibhit. This appea....
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....ns Judge, Court No.2, Pilibhit vide his order dated 08.03.2013 whereby he specifically directed him to reconstruct the records of Session Trial No.14 of 1979 State Vs. Sukhpal and others whereupon the Additional District & Sessions Judge, Pilibhit took various measures and explored all possible means to reconstruct the missing records of Session Trial No.14 of 1979. He issued notices to the complainant, his counsel, Police Record Room, office of Chief Medical Officer, Chief Medical Superintendent, Chief Judicial Magistrate, Session Clerk of Additional District & Sessions Judge, Court No.3, Pilibhit, Record Room Civil, S.D.O. Sadar, seeking information. In pursuance of the notices, complainant Budhsen appeared and submitted that he is not possessing any document whatever relating to the aforesaid session trial. He only submitted that he is having one copy of the judgment which he has submitted. From Police Record Room, information was furnished that the first information is kept only for three years, post mortem examination report for one year, case diary, site plan and recovery memo for five years and charge sheet for one year. Police Record Room informed that no relevant docume....
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....ated: Pilibhit: April 25, 2013 considered the above report and opined that reconstruction of the above lost documents is not possible. The relevant report of the District & Sessions Judge, Pilibhit dated 25.04.2013 is reproduced hereinbelow: "In compliance of Hon'ble Court's order dated 19.2.2013 passed in Crl. Appeal No.466 of 1980 Sukh Lal & anr. Vs. State of U.p., it is respectfully submitted that the task of reconstruction of FIR, charge-sheet, postmortem report, inquest report and other relevant documents of prosecution was entrusted to Sri Chandroday Kumar, Addl. Sessions Judge, Court No.2. Sri Chandroday Kumar, Addl. Sessions Judge, Court No.2 has submitted his report dated 12.4.2013. I have gone through his report. After exhausting all possible resources for obtaining the copies of the lost documents, learned Judge has come to the conclusion that reconstruction of the above lost documents is not possible. I also concur with the finding of the learned Addl. Sessions Judge, Court No.2, Pilibhit." Reconstruction of missing record was sought to be made from prosecution side as well whereupon an affidavit dated 13.02.2014 has been filed by N. Kolanchi, Superi....
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....is chapter contains Sections 372 to 394 but relevant provisions dealing with hearing of appeal are contained under Sections 384, 385, 386 Cr.P.C. Section 384 Cr.P.C. basically deals with summarily dismissal of appeal and stipulates that "upon examining the petition of appeal and copy of the judgment received under Section 382 or Section 383, the appellate court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily..............." Further Sections 385 and 386 Cr.P.C. are reproduced hereinbelow. "385. Procedure for hearing appeals not dismissed summarily.- (1) If the Appellate Court does not dismiss the appeal summarily, 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; (iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.....
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....that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." A cumulative reading of the above referred three Sections ( 384, 385, 386) make it abundantly clear that the appeal is to be decided on merit after perusal of lower court record and hearing the appellant or his counsel and the prosecution if the appeal is not dismissed summarily under Section 384 Cr.P.C. In an authoritative pronouncement reported in AIR 1996 Supreme Court 2439 (1) Bani Singh and others Vs. State of U.P., Hon'ble Apex Court has elaborated meaning of Section 385 and 386 of Criminal Procedure Code 1973 in Para No.8 of the judgment which is being reproduced hereinbelow: "Section 385 (2) clearly states that if the Appellate Court does not dismiss the appeal summarily, it `shall', after issuing notice as required by sub-section (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the Court need not call for the ....
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....he time of hearing. When it was not possible to do so, the only available course was a direction for re-construction. The said view was reiterated more than six decades back in Re Sevugaperumal and Ors. (AIR 1943 (Madras) 391). The view has been reiterated by several High Courts as well, even thereafter." Again in the same case, Hon'ble Apex Court has expressed about various alternative steps to be taken in the matter of loss of records in Para 10 of the judgment which is extracted as hereinbelow: "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 ....
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....d not cause undue strain on the memory of witnesses. Copies of F.I.R., statements of witnesses under Section 161 Cr. P.C. reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduely long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of F.I.R. and statements of witnesses under Section 161 Cr. P.C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State." In the above referr....
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.... In view of the above discussed citations of this Court as well as Hon'ble Apex Court, it is abundantly clear that in such a situation when records of the case are missing and as per dictum of Sections 385 and 386 Cr.P.C., criminal appeal is to be decided after perusal of the records and hearing the submissions of the parties. This Court cannot overlook above mandate of law and confirm the judgment of conviction at appellate stage. We find ourselves unable to decide this appeal on merits. It is pertinent to mention that learned counsel for the appellants insisted time and again when the appeal was taken up for hearing that in absence of the prosecution papers, he will not be able to make any submission on merits of the case for which availability of the prosecution papers are essential. As discussed above, re-trial of the case is not possible on account of absence of the essential prosecution papers i.e. first information report, Chik FIR, site plan, inquest report, post mortem examination report, charge sheet, case diary, injury reports etc. Even affidavit filed by Sri N. Kolanchi, Superintendent of Police, Pilibhit dated 13.02.2014 unambiguously discloses information....