A.F.R.

Neutral Citation No. - 2024:AHC:147793 Court No. - 86 Case :- CRIMINAL APPEAL No. - 2616 of 1982 Appellant :- Shri Ram Singh Respondent :- State Counsel for Appellant :- G.P. Dixit,R.K.Kanaujiya,Swetash Agrawal Counsel for Respondent :- A.G.A.

Hon'ble Nalin Kumar Srivastava,J.

1. This criminal appeal has been preferred by the appellant - Shri Ram Singh against the judgement and order dated 30.09.1982 passed by Session Judge, Ballia in Session Trial No.37 of 1982 (State Vs. Shri Ram Singh and another) under Section 302/201 IPC, Police Station Garwar, District Ballia convicting and sentencing the appellant for the offence under section 201 IPC to undergo 4 years rigorous imprisonment.

2. Heard Sri R.K. Kanaujiya, learned counsel for the appellant as well as learned A.G.A. for the State and perused the record.

3. A pertinent question involved in this appeal is as to if the original record of the trial court is not available before the Appellate Court, what legal consequence would ensue.

4. Learned counsel for the appellant has prayed for acquittal of the sole surviving appellant Shri Ram Singh, as the entire record (except the original judgment and order of the trial court) of this case has been weeded out as per report of District Judge, Ballia and now hearing of this Appeal is not possible for want of record. The present appeal pertains to year 1982. In view of all these facts particularly considering the fact that this appeal is pending for the last 42 years, it appears expedient in the interest of justice that this appeal may be decided finally.

5. A perusal of the record reveals that complete trial court record was summoned, but only a part of the record was sent by the District Judge, Ballia which includes only impugned judgment and order. No other document is available on record to proceed with the present appeal.

6. It further reveals from the perusal of the record that except the impugned judgment and order, rest of the record has been destroyed / weeded out. This Court vide order dated 8.8.2024 called for the report from the court concerned as to whether the reconstruction of the trial court record or retrial pertaining to the present case is possible or not. In compliance thereof, a report dated 28.8.2024 sent by the District Judge, Ballia was received wherein it was submitted that reconstruction of the trial court record of the present case is not possible and due to non- reconstruction of the trial court record, retrial of this case is also not possible.

7. In the similar circumstances, a Division Bench of this Court dealt with the matter in Brahmanand Shukla Vs. State of U.P. reported in 2010 (5) ADJ 158 (D.B.). In the said matter, it was observed that -

"In the present case, as we have mentioned in the earlier part of the judgment only a copy of the trial court's judgment is available and no other documents like FIR, post mortem report, copies of the documents which had been filed by the prosecution and were exhibited during trial, the statement of the witnesses recorded under Section 161 Cr.P.C. are available despite various attempts to reconstruct the record. The incident is of the year 1979 i.e. the incident took place about 30 years back. In these circumstances, no fruitful purpose would be served by ordering re-trial as the same cannot be conducted at all in absence of these documents.

In the light of the above discussions and the circumstances mentioned above,we have no other alternative but to allow the appeal, set aside the conviction and sentence of the appellant and to acquit him.

The appeal is allowed and the conviction and sentence of the appellant as recorded by the trial court is set aside and the appellant is acquitted of the charge levelled against him. His sureties and personal bonds are discharged.

Let a copy of this judgment be certified to the trial court for its intimation."

8. Subsequently the issue was again raised before the Division Bench of this Court in Government Appeal No.2528 of 1987, State o