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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
VIVEK KUMAR BIRLA, SHREE PRAKASH SINGH, JJ.
Mauji Lal & Others - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal No. 474 of 1980
Decided On : 15-03-2022
Indian Penal Code, 1860 - Section 302/34 and 323/34 - Appeal against Conviction – Offence of Murder - It was reported by office that the Record Room, Kanpur Nagar, vide report informed through the C.J.M. concerned that the lower court record in Sessions Trial No. 189 of 1978 is not available and departmental enquiry in this regard has been initiate - vide covering letter, has intimated that the enquiry in the said matter was done and it was found that one class-III employee then clerk of Second Additional District and Sessions Judge, Kanpur Dehat, who retired from service and also died found responsible for missing of aforesaid lower court record as record reveals that he had received said lower court record during his posting as clerk – Whether papers regarding Sessions Trial are available with their office so that hearing of case may proceed - Report was received from the office of the District Magistrate, Kanpur Dehat wherein it has been stated that no paper is available with regard to Sessions Trial in his office including the case diary of the case – Para 36.
Finding of the Court - Court May have to adopt the course of acquitting the appellant, we are conscious of the fact that such orders are likely to be misused - It is possible for a person who is involved in a gross case of murder and who has least chance of success, not to file appeal for a long period and then after destruction of record, come to this court and pray that he may be acquitted. As per Chapter XV of the Bombay High Court Appellate Side Rules, 1960, papers which are required to be preserved permanently shall be classified "A" and kept in File "A". Papers, which are required to be preserved for 30 years shall be classified "B" and kept in File "B". Papers which are required to be preserved for 5 years shall be classified "C" and kept in File "C" and papers which are required to be preserved for one year are classified as "D" and kept in File "D" -No fruitful purpose would be serve by ordering retrial as same cannot be conducted at all in absence of these documents - in the absence of original record, it is not possible to arrive at a decision that impugned judgment passed and sentence awarded against appellant is legally justified and in conformity with law - Where reconstruction of record is not possible which has been lost or destroyed, it is not legally permissible for the Appellate Court to affirm conviction of the appellant since perusal of the record of the case is one of the essential elements of hearing of the appeal.
Result: Appeal is allowed.
JUDGMENT :
Shree Prakash Singh, J.
1. Heard Sri S.D.S. Jadaun, learned counsel for the appellants and Sri L.D. Rajbhar, learned A.G.A. for the State.
2. This appeal has been preferred against the Judgment and order dated 6.3.1980 passed by Second Additional Sessions Judge, Non-Metropolitan Area, Kanpur in Sessions Trial No. 189 of 1978, convicting and sentencing the appellants no.1 and 2 to undergo imprisonment for life under Section 302/34 I.P.C. and to undergo one years rigorous imprisonment under Section 323/34 I.P.C.; and further convicting and sentencing the appellant no.3 to undergo one year rigorous imprisonment under Section 323/34 I.P.C.
3. Perused the record. From the perusal of the order sheet, it is evident that on 9.2.2015, the lower court record was summoned. Later on, after certain correspondence, it was reported by the office on 7.11.2019 that the Record Room, Kanpur Nagar, vide report dated 31.10.2019, informed through the C.J.M. concerned that the lower court record in Sessions Trial No. 189 of 1978 is not available and the departmental enquiry in this regard has been initiated. Thereafter, on 21.1.2020, the District Judge, Kanpur Dehat, vide covering letter dated 21.1.2020, has intimated that the enquiry in the said matter was done and it was found that one class-III employee Kailash Nath Yagik, the then clerk of Second Additional District and Sessions Judge, Kanpur Dehat, who retired on 31st of March 2008 from service and also died on 4th May 2010, was found responsible for missing of the aforesaid lower court record as the record reveals that he had received said lower court record on 20.7.1992 during his posting as clerk with the Second Additional District and Sessions Judge, Kanpur Dehat. Later on, vide letters dated 17.3.2020 and 21.3.2020, it has been reported that the reconstruction of record and retrial in the aforesaid matter are not possible.
4. After taking into consideration of the aforesaid facts, this Court has passed an order on 20.9.2021 wherein the District Magistrate, Kanpur Dehat and the Senior Superintendent of Police/Superintendent of Police, Kanpur Dehat were directed to inform as to whether papers regarding Sessions Trial No. 189 of 1978 under Sections 302/34 and 323/34 I.P.C. are available with their office so that hearing of the case may proceed. Report dated 21.10.2021 was received from the office of the District Magistrate, Kanpur Dehat wherein it has been stated that no paper is available with regard to the Sessions Trial No. 189 of 1978 in his office including the case diary of the case. After perusal of the aforesaid report, this Court has proceeded to decide the instant appeal.
5. In the aforesaid circumstances, issue of construction of records pertaining to criminal trial has arisen before the Appellate Court on account of situation in which the record of Trial Court pertaining to the Criminal Trial is unavailable or destroyed during the pendency of the criminal appeal before the Appellate Court.
6. Before discussing the legal remedies permissible in law in the situation where Trial Court Records pertaining to Criminal Trial are destroyed, it is significant to elaborate the legal provisions enumerated in the Code of Criminal Procedure, 1872 (hereinafter referred to as the Cr.PC) for adjudication of Criminal Appeal by Appellate Court.
7. Sections 385 and 386 Cr.P.C. deal with the "procedure for hearing appeals not dismissed summarily" and "powers of Appellate Court", which are quoted as under:-
(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant;
(iv) if the appeal is under section 377 or section 378, to t
If only reconstruction is not possible to facilitate the High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the Sessions Court is also rendered ....
In absence of vital trial records, a conviction cannot be sustained, leading to acquittal.
Re-trial should only be ordered in exceptional circumstances where the trial was vitiated by serious illegalities or irregularities, or where the prosecutor or accused were prevented from tendering m....
The appellate court has the authority to admit additional evidence but must do so according to procedural law, ensuring fairness and compliance with defined legal requirements.
The main legal point established in the judgment is that the appellate court is obligated to hear the appellant or their counsel and go through the records before disposing of the appeal, as per the ....
The appellate court may remand a case for retrial if the trial court fails to consider vital evidence, ensuring justice is served.
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