IMPORTANT POINT
Judgment of acquittal cannot be passed by High Court in appeal merely on ground that trial Court record called for was reported destroyed in fire.

Headnote:Criminal Procedure Code, 1973-Section 386-Non-availability of trial Court record during hearing of appeal against conviction it was reported destroyed in fire-Whether Appellate Court would be justified in directing acquittal? No acquittal of respondents of offence u/s 302/34 IPC by High Court on ground that trial Court was reported destroyed in fire and hence not available was not a proper course-Impugned judgment was liable to be set aside.
       Held : The powers of the Appellate Court when dealing with an appeal from a conviction are delineated in sub-clauses (i), (ii) and (iii) of clause (b) of Section 386 of the Code. The Appellate Court is empowered by Section 386 to reverse the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence. The Appellate Court is also empowered to discharge the accused. The third category which seems to be applicable to the present case is a direction for re-trial by a court of competent jurisdiction subordinate to the Appellate Court or committed for trial. For exercise of the powers in cases of first two categories, obviously a finding on merits after consideration of the materials on record is imperative. Where that is not possible because of circumstances like the case at hand i.e. destruction of the records, the proper course for the Appellate Court would be to direct re-trial after reconstruction of the records if in spite of positive and constructive efforts to reconstruct the records the same was impossible. If on the other hand, from the copies available with the prosecuting agency or the defence and/or their respective counsel, reconstruction is possible to be made, said course should be adopted and the appeal can be disposed of as it deserved under course indicated in clauses (i) and (ii). After perusal of the records and hearing appellant s pleader and public prosecutor under Section 377 or 378, the exercise of power as indicated above can be resorted to. (Para 6)
       The High Court did not keep the relevant aspects and considerations in view and came to the abrupt conclusion that re-construction was not possible merely because there was no response from the Sessions Judge. The order for re-construction was on 1.11.1993 and the judgment of the High Court is in Criminal Appeal 1970 of 1979 dated 25.2.1994. The order was followed in Criminal Appeal No. 1962 of 1979 disposed of on 16.8.1995. It is not clear as to why the High Court did not require the Sessions Court to furnish the information about re-construction of records; and/or itself take initiative by issuing positive directions as to the manner, method and nature of attempts, efforts and exercise to be undertaken to effectively achieve the purpose in the best interests of justice and to avoid ultimately any miscarriage of justice resulting from any lapse, inaction or inappropriate or perfunctory action, in this regard; particularly when no action was taken by the High Court to pass necessary orders for about a decade when it received information about destruction of record. The course adopted by the High Court, if approved, would encourage dubious persons and detractors of justice by allowing undeserved premium to violators of law by acting hand in glove with those anti social elements coming to hold sway, behind the screen, in the ordinary and normal course of justice. (Para 8)

JUDGMENT

Arijit Pasayat, J.-In these appeals the question of seminal importance which arises is whether in exercise of power under Section 386 of the Code of Criminal Procedure, 1973 (in short the Code ), the Appellate Court would be justified in directing acquittal, where the records of the Trial Court are not placed before it on some ground or the other. The Allahabad High Court by the impugned judgment directed acquittal of the accused persons (present respondents) who were appellants before it.

2. Background facts need be noticed are essentially as follows:

Accused persons faced trial for alleged commission of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC ). According to prosecution, Shakuntla Devi and Munni Devi were sleeping on the roof of the second storey of their house. Kanti Devi was sleeping on the open roof in front of the southern verandah on the first floor of the house. The main door of the house on the east was closed. There were no other persons in the house because Nathoo Singh and Brij Pal Singh were both in jail being accused of the murder of Jogendra Singh. It is said that these accused belonged to the party of Dafedar Singh who had secured this bail in the case of Gajju Singh s murder, before the present incident in question. The allegation was that the three accused and the deceased accused Jagannath Singh scaled over the uppermost roof of Shakuntla Devi s house from its south-western side and reached the place where only Munni Devi and her step-mother were sleeping on separate beds near each other. Munni Devi was, in the process, awakened. On hearing sounds, she flashed a torch, in the light of which she saw and recognised all the four accused. She also noticed that Om Pal Singh had a knife about one foot long, while the other three held guns. Abhai Raj Singh immediately fired at the sleeping Shakuntla Devi. Munni Devi raised alarm. Undeterred, Ved Pal Singh and Jagannath Singh also fired shots at Shakuntla Devi, and Om Pal Singh repeatedly stabbed her with the knife. On hearing gun shot sounds villagers arrived and knocked at the main door. The miscreants escaped the way they had come. Kanti Devi opened the door to let in the villagers who saw Shakuntla Devi dead. Munni Devi dictated the FIR Ex. Ka.1 to her cousin Om Parkash Singh and handed it to village Chowkidar to lodge it. At 4.30 a.m. in the same night it was registered at Bhamora Police Station. The police after recording the FIR, started investigation, arrived at the spot, performed the inquest and sent the dead body for autopsy. After completion of investigation, charge sheet was placed. Accused persons pleaded innocence and faced trial. The present respondents were found guilty, convicted and sentenced as afore-noted. Before commencement of trial accused Jagannath died.

3. Two appeals against the common judgment and order dated 23.6.1979 were filed by the respondents Om Pal Singh, Abhai Raj Singh and Ved Pal Singh. After admission of the appeal, registry of the High Court sent for the records from the Trial Court. By letter dated 27.6.1984 the office-in-charge (Record room) Judges Court Bareilly informed the High Court that the records of the case were not available having been destroyed in the fire that broke out in the night between 18/19.11.1979. Nothing seems to have been done thereafter, though we feel that the registry should have placed the matter before the appropriate Bench for further directions to explore the possibility of reconstructing the records, to effectively dispose of the appeals. Be that as it may, by order dated 1.11.1993 i.e. more than 9 years after the letter was received from the lower court, 3 months time was allowed for reconstruction of the record at the Sessions Judge level. The High Court while disposing of the appeal on 25.2.1994 noted that no communication had been received about the reconstruction of the record, and inference was therefore drawn that

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2003 Supreme(SC) 298

IMPORTANT POINTJudgment of acquittal cannot be passed by High Court in appeal merely on ground that trial Court record called for was reported destroyed in fire.

Cases Referred (2)

IMPORTANT POINT
Judgment of acquittal cannot be passed by High Court in appeal merely on ground that trial Court record called for was reported destroyed in fire.