@JUDGMENTTAG-ORDER
Vijay Kumar Verma, J.@mdashHeard Amicus Curiae Shri Sudhir Bharti appearing for the appellants and AGA for the State.
2. This appeal has been preferred against the judgment and order dated 16.02.1979 passed by the IVth Addl. Sessions Judge, Bareilly in S.T. No. 118 of 1978 (State v. Pati Ram and Ors.), whereby the appellants Pati Ram and Ram Swarup have been convicted and sentenced to undergo rigorous imprisonment of three years u/s 304 IPC read with Section 34 I.P.C.
3. Lower court record has been burnt in the fire, which broke out in Bareilly judge- ship in the intervening night of 18/19-11-1979. Hence, the case of the prosecution is being mentioned from the certified copy of the impugned judgment, which has been filed in this appeal.
4. The prosecution story, in brief, is that the complainant Kundan Lal is the uncle of the accused and witnesses Shiv Singh and Behari Lal are his Khandani. All these persons live in the same house though their residential portions are separate from each other. The complainant had three sons and Baboo Ram deceased was his second son. The complainant Kundan Lal purchased mango crop of a grove during the days of occurrence and on the date of occurrence he and his third son Bhoop Ram were looking after it from the morning time. Baboo Ram deceased also went to the same grove, but he returned to the house by noon. Baboo Ram deceased left some money in the pocket of his Kurta before going to the said grove but found it missing after his return from there. He asked the accused about that money but the accused persons denied to have taken it. They also started abusing Baboo Ram and Baboo Ram had also abused the accused persons. Thereupon the accused Ram Swaupp grappled Baboo Ram and the accused Pati Ram caused injuries to him with his "hansia". However Baboo Ram got himself free, snatched the "hansia" from the accused Pati Ram and used it in his private defence. After sustaining the injuries Baboo Ram fell down under "Oalti" of his thatch and sufficient blood had also fallen on the ground. This occurrence was witnesses by Shiv Singh and Behari Lal who were present at the time of occurrence. On hearing this "marpit" the complainant Kundan Lal rushed to the house from the said grove and made enquiry from his son Baboo Ram about the occurrence. Accordingly Baboo Ram narrated the story and the manner in which the occurrence took place. The complainant got scribed a written report Ex.Ka-1 from Shiv Singh and thereafter took the injured Baboo Ram to P.S. Bhojipura in a bullock cart. The complainant was directed by the police men to go Bhojipura Block Hospital for treatment but unfortunately Baboo Ram died at the said hospital. Thereafter his dead body was taken to P.S. Bhojipura.
5. The investigation of the case was carried out by S. I. Surat Singh, who submitted charge-sheet against both the appellants. On the case being committed to the Court of Session for trial, charge u/s 304 read with Section 34 IPC was framed to which the accused persons pleaded not guilty and claimed to be tried.
6. In order to prove its case, the prosecution examined P.W.1 Kundan Lal, P.W. 2 Nathoo Lal, P.W. 3 Shiv Singh, P.W. 4 Sri Surat Singh (I.O.), P.W. 5 Dr. A. K. Pandey and P.W. 6 Dr. V.S. Saxena.
7. In defence, the accused persons had examined Mangli as D.W. 1 and filed three papers (Ext. Kha-6 to Kha-8).
8. After hearing parties Counsel and taking entire evidence into consideration, the learned court below convicted and sentenced the appellants as stated in para-1 above. Hence, this appeal.
9. After admission of the appeal, lower court record was summoned from the Sessions Judge, Bareilly, who reported that lower court record has been burnt in fire, which broke out in Bareilly judgeship in the intervening night of 18/19-11 -1979. The Sessions Judge, Bareilly was directed to re-construct the record, but vide letter No. 14/VIII-Crl dated 24.03.2009, the In-charge Sessions Judge, Bareilly has reported that every possible effort for the reconstruction of the lower court record has been made, but in spite of best efforts, the lower court record could not be reconstructed. The report of the IVth Addl. Sessions Judge, Bareilly has been annexed with aforesaid letter of the In-charge Sessions Judge, Bareilly. The report of the IVth Addl. Sessions Judge, Bareilly shows that no paper concerning Session Trial No. 118 of 1978 is available in the office and entire record was burnt in the fire. The report of the IVth Addl. Sessions Judge, Bareilly further shows that no paper of the case is available at P.S. Shergarh also. The complainant and witness Ram Swamp have also died as is evident from the aforesaid report of the Court of IVth Addl. Sessions Judge, Bareilly. Since no paper of the case is available, hence there is no possibility of retrial of the appellants-accused.
10. Placing reliance on State of U.P. v. Abhay Raj Singh and Anr. 2004 (50) ACC 6591 : AIR 2004 SC 3235 : 2004 All LJ 2043, it is submitted by learned amicus curiae that the appellants are liable to be acquitted as the lower court record has been burnt in the fire and there is no possibility of retrial.
11. On the other hand the learned AGA drawing my attention towards Raj Narain Pandey v. State 2010 (1) ADJ 53, has submitted that this Court can decide the appeal on merit on the basis of the certified copy of the judgment, as has been done by another Bench of this Court in aforesaid case.
12. I have given my thoughtful consideration to the rival submissions made by the parties counsel. It is true that another Bench of this Court in the case of Raj Narain Pandey (Supra) has decided the appeal on merit in the absence of lower court record on the basis of the impugned judgment only, but in my considered opinion, the appeal can not be decided on merit in the absence of lower court record. Unless the evidence is available for perusal, in my opinion, the appeal can not be considered and decided on merit merely on the basis of the lower court judgment, as evidence is essentially required to consider the merit of the impugned judgment and merely on the basis of the said judgment, no order on merit can be passed in the appeal.
13. As is evident from the report of IVth Addl. Sessions Judge, Bareilly, no paper of the cases available. In spite of best efforts made by the courts below, the lower court record could not be reconstructed. Since no paper of the case is available, hence there is no possibility of re-trial at this stage after more than thirty years. Therefore, in view of the observations made by the Hon''ble Apex Court in the case of State of. U.P. v. Abhay Raj Singh AIR 2004 SC 3235 : 2004 All LJ 2043 (supra) there is no alternative except to acquit the appellants, as hearing of the appeal in accordance with the arrangement made in Section 386 Cr.P.C. can not be made and retrial also is not possible.
14. Consequently, the appeal is allowed. The impugned judgment and order are set aside and the appellants-accused Pati Ram and Ram Swarup are hereby acquitted of the offence u/s 304 read with Section 34 IPC for want of trial court record and there being no possibility of retrial.
15. The appellants-accused are on bail. They need not to surrender. Their personal and bail bonds are cancelled and the sureties are discharged.
16. Office is directed to send a copy of this judgment to the trial court concerned for information.
17. Amicus Curiae Sri Sudhir Bharti will get Rs. 4,000/- as his fee.
