Court No. - 50
Case :- CRIMINAL APPEAL No. - 1325 of 1982 Appellant :- Bishan Deo Singh and 2 others Respondent :- State Of U.P.
Counsel for Appellants :- Tilak Dhari Singh,Achyut Jee, Arvind Singh, Jagdish Lal Counsel for Respondent :- A.G.A.
Hon'ble Mrs. Vijay Lakshmi,J.
Supplementary affidavit filed today by learned counsel for the appellants is taken on record.
Sri Achyut Jee, learned counsel for the appellants is present.
In compliance of the order dated 3.2.2018, the office has submitted its report Flagged 'X' on the record that a letter dated 20.3.2018 has been received from District Judge, Ballia. The District Judge, Ballia has submitted that despite all possible efforts, reconstruction of record of S.T. No. 201 of 1979 (State Vs. Bishandeo Singh) is not possible. Alongwith report of the District Judge, the report of C.J.M., Ballia dated 13.3.2018 is also annexed which shows that the complainant of this Case namely Paras Nath Singh has filed an affidavit before the C.J.M., Ballia that he has no document relating to the aforesaid case with him. He has also stated that the parties have amicably settled the matter by way of compromise.
Out of the three appellants, the appeal has already abated in respect of appellant no. 1 - Bishundeo Singh.
The appellants have been convicted under Sections 323/34 I.P.C. only and have been punished with simple imprisonment of 4 months. The offence is compoundable in nature which can be compounded. Moreover, the reconstruction of record is not possible as per the report of the Sessions Judge, Ballia.
The Hon'ble Apex Court in the case of State of U.P. Versus Abhai Raj Singh & another reported in 2004 Supreme Court Cases (Cri) 901 has laid down the guidelines in cases where the record has been weeded out or has been destroyed or lost and its reconstruction is not possible. According to the Hon'ble Supreme Court :-
".........If only reconstruction is not possible to facilitate the High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the 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."
In a similar case where lower court record was not available and reconstruction of record was not possible, a division Bench of this Court (Sita Ram and others Vs. State; 1981 Crl.L.J 65), acquitted the accused in view of the fact that the lower court record could not be reconstructed. This aspect of Sita Ram case (supra) was again considered by another division Ben.ch of this Court in the case of Ram Nath Vs. State 1982 (19) ACC 128 (decided on 3.11.1981) wherein also following observations were made :-
"After making the aforementioned observations and in view of the fact that the court was not in a position to have the record of the case reconstructed, the Bench directed acquittal of the accused in that case. The principle laid down in Sita Ram's case fully applies to the facts of the present case. As all attempts to have the record reconstructed have failed, this Court is not in a position to affirm the conviction recorded by the trial court. So far as the question of ordering a retrial is concerned, we find that in the instant case the incident in connection with which the accused were prosecuted, took place as far back as 13th of September, 1970, that is, more than eleven years earlier. In such circumstances it will not be desirable to direct a retrial. In this view of the matter we have no option but to allow Criminal Appeal No.857 of 1976 and to set aside the conviction and sentence of Ram Nath and to acquit him of the offence with which he has been charged."
In similar circumstances another division Bench of this Court in the case of Brahmanand Shukla Vs. State of U.P. 2010 (69) ACC 749 made following observation in Para 10:-
"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, postmortem 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 retrial as the same cannot be conducted at all in absence of these documents.
In the light of the above discussions and 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."
Under these circumstances and keeping in view the fact that the offence under Section 323 I.P.C. being compoundable and both the parties have put to an end their dispute by way of compromise and in absence of lower courts record the matter stands closed and the appeal is accordingly allowed. The appellants are acquitted of the charges framed against them.
Office is directed to send a copy of this judgment to the court concerned for compliance.
Order Date :- 29.3.2018 S.B.