This Government Appeal has been filed by the State appellant against the judgement and order dated 26.3.1985 passed by VIIIth Addl.Sessions Judge,Meerut in Sessions Trial No. 431 of 1983, P.S. Inchauli, District Meerut, whereby accused respondents Malooka, Jaspal, Sardara and Satyaveer were acquitted of the charges under section 302/34 IPC.

The incident in question giving rise to this appeal took place on 25.8.1981 at about 8.00 a.m. in which one Kartar Singh was murdered. The case regarding the same was registered at P.S. Inchauli as case crime no. 146/81. After completing the investigation charge sheet was submitted against the accused respondents. Cognizance was taken and the statutory procedure of law was complied with, resulting in the committal of the accused to the court of Sessions where charges u/s 302/34 IPC were framed against them. Oral as well as documentary evidence was produced by the prosecution in order to substantiate the charge.

The perusal of the impugned judgement reveals that the learned Addl. Sessions Judge found many demerits in the prosecution case. The failure of the police to comply with the salutary provision of Section 157 Cr.P.C. in letter and spirit; the absence of crime number in the relevant contemporary police papers; the discrepancy of distance from police station in different papers prepared during investigation; the non explanation of delayed dispatch of FIR to the concerned Magistrate; the inadequately explained delay in the performance of autopsy and several other appertaining relevant circumstances were carefully marshalled and weighed by the court giving rise to the finding that the FIR of the case was in all probability an anti-timed document. The incongruity of oral evidence viz a viz medical evidence has also been taken into account and the testimony of witnesses has been carefully analysed on the anvil of probabilities and natural conduct. Non production of material witnesses on significant points necessary to unfold the prosecution story has also been considered. After making elaborate discussions regarding all the crucial aspects of the case the lower court concluded that the FIR was prepared in the police station after making embellishments which substantially deviated from the actual manner of occurrence. The veracity of the ocular testimony of witness was found gravely suspect, and the participation of all the four accused highly doubtful. Having opined thus the benefit of doubt was accorded to the defence side and the prosecution story was disbelieved. Resultantly, the learned trial Judge absolved the accused respondents of all the charges for which they faced the trial.

Feeling aggrieved by the impugned judgement of acquittal the State preferred the present government appeal.

After granting the leave, appeal was admitted on 28.4.1987. The lower court record was summoned by this court.

We have heard the AGA as well as the counsel for the respondents and have also perused whatever record is available before us.

The biggest hurdle which we are confronting in this appeal is that even after making the best possible efforts at all the levels the lower court record could not be made available to us. The order sheet of this appeal shows that our predecessor Judges had ordered to trace out the record of the case. In this connection all the correspondence that took place between the office of the District Judge and the office of the District Magistrate and also the office of the Government Advocate at the High Court is available on record before us.

The perusal of this correspondence reveals that the District Magistrate vide his letter dated 25.11.2011 had written to the Government Advocate that the original record had been sent to the office of the Government Advocate on 19.11.1985( through office letter no.298/J.A. First). The District Magistrate also seems to have sent some official to bring back the record from the Government Advocates office. But the communication date