2000 Supreme(SC) 1907

2001(7) Supreme 431
SUPREME COURT OF INDIA
(From Allahabad High Court)
Syed Shah Mohammed Quadri and S.N. Phukan, JJ.
Kunwar Bahadur Singh -Appellant
versus
Sheo Baran Singh & Ors. -Respondents
Criminal Appeal Nos. 1078-1082 of 2000
(Arising out of SLP (Crl.) Nos. 1459-1463 of 1999)
With
Criminal Appeal Nos. 1083-1086 of 2000
(Arising out of SLP (Crl.) Nos. 1928-31/99)
Decided on 29-11-2000
Counsel for the Parties :
For the Appearing Parties : Sushil Kumar and Rakesh Dwivedi, Sr. Advocates, R.B. Misra, K. Mishra, Ms. Sangeeta Sharma, Pramod Swarup, Ms. Pareena Swarup, Praveen Swarup, Vishwajit Singh, N.S. Gahlot, R.K. Singh, Prakash Kumar Singh, Ravi Kumar Verma, Advocates.

VERY IMPORTANT POINT
In the instant case there is properly reconstructed file, therefore, High Court erred in not going into the merits of the case and acquitting the convict - appellants before it by allowing the appeals. High Court is now directed to consider and decide the appeals on merits on the basis of reconstructed records with liberty stated in this case.

Headnote:Criminal trial on reconstructed records-Practice and Procedure-Convictions for various offences-Appeals against to High Court -On date of actual hearing all the records including those which were called for from the trial Court were found missing in the High Court -While ordering the inquiry into the matter, the High Court directed the trial Court to reconstruct the record-Trial Court reconstructing records-High Court not accepting them on doubting their genuineness-Acquitted the accused-Appeal against to Supreme Court-Whether High Court was right in its approach? (No)-Appeal allowed with directions to High Court to hear the appeals an merits with certain precautions.

       Held : A perusal of the judgment of the High Court, impugned in these appeals, discloses two reasons for not deciding the case on merits, allowing the appeals by setting aside the conviction and sentences ordered by the trial court and acquitting the respondents of all the charges. The first is that the carbon copies of the statements of the witnesses were not counter-signed by the Reader of the Court and that there was no endorsement on the carbon copies as contemplated in the circulars of the High Court so it was doubted that the copies were supplied to the complainant. The second is that even a seemingly slight variation in the evidence recorded at the trial with the alleged carbon copies can change the entire complexion of the case. From the above narration of the steps taken to reconstruct the records, we are satisfied that there is no valid reason to doubt the genuineness of the copies of the statements of witnesses examined at the trial and that the learned Additional District & Sessions Judge had reconstructed the file in the best possible manner. The fact that the copies of the statements and other documents were given to the complainant, had been spoken to by the advocates of the parties before the learned Sessions Judge. That fact was corroborated by verifying the authenticity of the carbon copies of the statements of the witnesses produced by the appellant appearing along with his advocate. To dispel the doubt expressed by one of the respondents who appeared before the learned Sessions Judge, time was granted to him to produce copies of the statements which he admitted to be in his possession. In the absence of such copies being filed the Sessions Judge satisfied himself about the correctness of the copies produced by the complainant by examining all those persons connected with the reconstructed records. He gave notice to both the learned counsel for the prosecution as well as of the accused to render necessary assistance in the construction of the file. The learned counsel rendered assistance to the extent they could. In view of facts afore-mentioned, the reason given by the High Court for doubting the authenticity of the reconstructed records, is untenable. However, Mr. Dwivedi argues that as the respondents herein did not have an opportunity to cross-examine the Peshkar (Reader) and that before the accused appeared in Court the statement of the Peshkar was already recorded so it cannot be relied upon in verification of the copies furnished by the complainant to reconstruct the record. We are afraid, we cannot accept the contention of the learned counsel for the simple reason that before recording the statement of the Peshkar (Reader) notice was already issued to all the accused to appear on May 31, 1984. The statement of the Peshkar (Reader) was recorded on June 15, 1984. It is a fact that one of the respondents - accused Inder Bahadur Singh, appeared on June 19, 1984 and stated that as he was out of station so he could not appear earlier. It is true that the Peshkar (Reader) was examined in the Court before the said respondent appeared in Court so he could not be cross-examined. But the advocate of the respondents who appeared before the Court did not come forward to cross-examine the Peshkar (Reader). It may also be pointed out that after appearing on June 19, 1984, he promised to get the copies of the statements of the witnesses given to him at the trial but thereafter neither did he appear nor produced the copies which were admittedly received by him, nor made an application to cross-examine the Peshkar (Reader). In view of these facts, mere suspicion or doubt expressed by the advocates of the respondents (appellants before the High Court) cannot destroy or discredit the authenticity of the record reconstructed by the learned Sessions Judge. A distinction must be made between a case where the trial court reports that the reconstruction of file is impossible or the reconstructed file is scanty and incomplete lacking in material documents of which no extracts are to be found in the judgment of the trial court and a case where the trial court after due verification reconstructs the file. In the former case declining to go into the merits may be justifiable but in the latter case it is impermissible. There can be no doubt that jurisprudentially an accused is presumed to be innocent till he is found to be guilty by a competent court. In giving its verdict the court will give benefit of doubt arising on consideration of evidence brought on record by the prosecution or on account of absence of material evidence which ought to have been adduced but is not brought on record, to the accused person and acquit him of the offence charged against. But a doubt arising on the basis of surmises and conjectures should never be allowed to influence the verdict of the court as in such cases giving benefit of doubt to the accused but will be counter productive and destructive of system of delivery of justice in criminal cases having repercussions on existence of every civilised and peaceful society. The courts will have to be cautious and prudent to secure the ends of justice. From the above discussion, it follows that in the instant cases there is properly reconstructed file, therefore, the High Court erred in not going into the merits of the case and acquitting the convict appellants before it by allowing the appeals. Ergo we set aside the impugned order and restore the aforementioned criminal appeals to the file of the High Court to be heard and disposed of on merits. The High Court shall now consider and decide the appeals on merits on the basis of the reconstructed records. It is needless to mention that while examining the merits of the case, it would be open to the High Court to examine the copies of statements in the reconstructed record on the basis of intrinsic inconsistency between the reconstructed records as the contents of the judgment of the learned Sessions Judge or with reference to any irrefragible evidence placed before it by the appellants therein. The appeals are accordingly allowed. (Paras 20 to 27)