The perusal of trial court record is necessary for deciding the appeal, and in the absence of record, the appellate court may order retrial or close the matter for want of record.

JUDGMENT :

Saroj Yadav, J.

1. This criminal appeal has been preferred by the appellant accused namely Chaman Lal, son of Shri Satya Narain against the judgement and order dated 29.1.1987 passed in Sessions Trial No.352 of 1981 (State Vs. M.P. Singh and another) under Section 302 I.P.C. read with Section 34 I.P.C. convicting the appellant to undergo life imprisonment.

2. While admitting the appeal on 5.2.1987, this Court enlarged the appellant on bail. During pendency of the appeal, the appellant/accused absconded and this court issued non bailable warrant against him and he could be arrested after a long time on 10.2.2020. Now appellant/accused is in jail.

3. When the appeal was put up for hearing, the record of the trial court was summoned but the record could not be received and it was reported that the trial court record had already been weeded out and only the impugned judgement is available.

4. The court ordered for reconstruction of the record and attempts were made at various levels for the same but all proved a futile exercise. The District Judge, Lucknow vide its letter no.594/Antim Jaanch No.30113 dated 14.2.2019 reported that the reconstruction of the record of Sessions Trial No.352 of 1981 is not possible. Alongwith above report of the District Judge, the report of the officer-in-charge of the record room (Criminal), District Court, Lucknow has also been attached and according to that report also, the reconstruction of the record is not possible.

5. The attempts were also made at the level of prosecution to get the record re-constructed but all efforts remained unsuccessful to reconstruct the record. Hence, on the basis of the above quoted material, it is established that the record has already been weeded out and the reconstruction of that record is not possible.

6. Heard learned Amicus Curiae Shri Anurag Shukla appearing for the appellant and Shri Chandra Shekhar Pandey, learned A.G.A. for the respondent State.

7. Learned Amicus Curiae submits that since the record is not available, the appeal cannot be decided on merits and even if merit is considered only on the basis of the impugned judgement available on record, there is no cogent evidence to sustain the conviction made because the trial court has convicted the appellant accused on the basis of the extra judicial confession allegedly made and acquitted the another accused on whose instigation, the present appellant accused has been alleged to commit the crime.

8. On the other hand, learned A.G.A. submitted that the appellant has committed the murder of Shri A.U. Siddiqui and has been convicted by the trial court on the basis of the evidence produced by the prosecution. The appellant accused cannot be acquitted only for want of record.

9. Learned Amicus Curiae has relied upon the judgments in the case of Pati Ram and another Vs. State of U.P. : 2010 CriLJ 2767, (ii). Sita Ram and others Vs. State of U.P. : 1981 CriLJ 65, and (iii). Shyam Deo Pandey Vs. State of Bihar : 1971 (1) SCC 855.

10. We have considered the submissions made by both the sides and perused the record and the case laws cited above.

11. It is undisputed that the record of the trial court has been weeded out and the reconstruction of that record is not possible as has been reported by the concerned authorities, noted above.

12. It is settled law that for deciding the appeal, perusal of the lower court record is necessary.

13. In the case of Shyam Deo Pandey Vs. State (supra), the Hon'ble Apex Court has held that perusal of the record is necessary for the appellate court to adjudicate upon the correctness or otherwise of the judgement against whom appeal is preferred.

The relevant paragraph of the judgment runs as under :-

"18. Coming to section 425, which has already been quoted above, it deals with powers of the appellate court in disposing of the appeal on merits. It is obligatory for the appellate court to send for the record of the case, if it is not already before the court. This requirement is necessary