Arvind Kumar Mishra-I, J.

The aforesaid Criminal Appeal arises out of judgment of conviction dated 29.1.1980 passed by Shri V.S. Agrawal, the then 3rd Additional Sessions Judge, Pilibhit in Sessions Trial No. 14 of 1979, Case Crime No. 77 of 1978, under Sections 147, 148, 302,/149, 307/149, I.P.C., Police Station Jahanabad, district Pilibhit, whereby the appellants Sukh Lal and Lalman have been convicted under Section 148 , 302/149 and 307/149 I.P.C. and sentenced to undergo two years' R.I., life imprisonment, and three years' R.I. respectively. Further the accused appellants Ram Swaroop, Devi Ram and Chhotey Giri have been convicted under sections 147, 302/149, and 307/149 I.P.C. and sentenced each of them to undergo R.I. for one year, life imprisonment and three years' R.I. respectively. All the sentences have been directed to run concurrently.

2. 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.

3. 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.

4. We have heard the learned counsel for the appellants and the learned AGA for the state.

5. 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.

6. At the very outset it is relevant to mention that the entire lower court record is not available. The only lower court record available is the order sheets from 22.01.1979/29.01.1979 upto 29.01.1980, original judgment of Session Trial No.14 of 1979 dated 29.01.1980, charge framing order and charges framed. Testimony of PW-1 to PW-7, statement recorded under Section 313 Criminal Procedure Code of accused persons and testimony of Ram Dayal DW-1.

7. As per report received from District & Sessions Judge, Pilibhit Exhibit Natthi (prosecution papers) are not available. Thus the essential prosecution papers i.e. FIR, Chik report, inquest report, post mortem examination report, site plan, charge sheet, injury reports and G.D. etc. are missing. Although we explored all possible avenues to get the missing records reconstructed, but our endeavour did not deliver the required record. However, this particular aspect of the case relating to missing of the prosecution papers and its consequence will be considered by us at the appropriate stage.

8. The prosecution story, in a nutshell, as disclosed in the first information report is that Bhoop Ram and Brij Lal had a quarrel wherein Liladhar son of Louki abused Chaturi Lal. A report in this connection was lodged by Smt. Mehki. On 22.05.1978 at about 12: 00 noon, Sukh Lal, Ram Swarup, Kundan, Piarey, Devi Ram, Roop Lal, Chhotey Giri, Lalman and Liladhar son of Louki arrived at the house of Budhsen. Lalman and Sukh Lal were armed with Pharsa, Liladhar was armed with spear and Lalman was armed with pistol while other persons were armed with Lathis. They called out inmates of the house whereupon Budhsen and his father Chaturi Lal came out of the house. The accused persons exclaimed that they (Buddhsen and Chaturi Lal) should be murdered whereupon Chaturi Lal ran towards field of Ghasi Ram. The accused persons chased him up to the fied of Ghasi Ram and belaboured him. Chaturi Lal also wielded Lathi in his self defence. In the meanwhile Budhsen kept on shouting by hiding himself by the side of his house. Ghasi Ram, Mathura Prasad, Ganga Ram and Makhan came to the rescue of Chaturi Lal but they we