2015 (12) TMI 1709 - HC - Indian Laws

Conviction and sentence passed by 5th Additional District and Sessions Judge, Bijnor in Session Trial under sections 147, 148, 302/149 IPC - Held that - Since inspite of best efforts neither reconstruction of record is possible nor re-trial is possible, hence, the criminal appeal cannot be decided on merit in absence of relevant prosecution papers including the statement of witnesses and as such there is no option but to set aside the impugned judgment of conviction. In view of the fact, the judgment and order of conviction and sentence dated 16.10.1981 passed by 5th Additional District and Sessions Judge, Bijnor in Session Trial No. 350/79, under sections 147, 148, 302/149 IPC, P.S. Chandpur, District Bijnor, is hereby set aside.

Summary

Issues Involved:
1. Death of Appellant No. 5 and abatement of appeal.
2. Missing lower court record and efforts for reconstruction.
3. Death of key witnesses.
4. Legal provisions under Sections 384, 385, and 386 Cr.P.C.
5. Precedents regarding missing records and retrial.
6. Final decision based on inability to reconstruct records or conduct retrial.

Issue-wise Detailed Analysis:

1. Death of Appellant No. 5 and Abatement of Appeal:
The appeal was originally filed by five appellants against the judgment and order of conviction dated 16.10.1981. However, Appellant No. 5 died, leading to the abatement of the appeal concerning him. The remaining appellants, in compliance with a Non-Bailable Warrant, surrendered and were released on bail.

2. Missing Lower Court Record and Efforts for Reconstruction:
The lower court record was reported missing, and despite directions to reconstruct the record, it was found that key witness Smt. Naraini Devi had expired, and another witness, Balbir, had also died. The court acknowledged that the reconstruction of the complete relevant record, especially witness statements, was not possible.

3. Death of Key Witnesses:
The death of key witnesses Smt. Naraini Devi and Balbir further complicated the reconstruction efforts, making it impossible to proceed with a retrial or to decide the appeal based on the available evidence.

4. Legal Provisions under Sections 384, 385, and 386 Cr.P.C.:
The judgment discussed the provisions of Sections 384, 385, and 386 Cr.P.C., which outline the procedures for summary dismissal of appeals, hearing appeals not dismissed summarily, and the powers of the appellate court. These sections emphasize the necessity of examining the lower court record and hearing the parties involved before deciding an appeal.

5. Precedents Regarding Missing Records and Retrial:
The court referred to several precedents, including the cases of Sukhlal & Others Vs. State of U.P., Bani Singh and others Vs. State of U.P., and State of U.P. Vs. Abhai Raj Singh and another. These cases established that if the lower court record is missing and cannot be reconstructed, and if a retrial is not feasible due to the passage of time or the unavailability of key documents and witnesses, the appellate court cannot affirm the conviction.

6. Final Decision Based on Inability to Reconstruct Records or Conduct Retrial:
Given the impossibility of reconstructing the record or conducting a retrial, the court concluded that the appeal could not be decided on its merits. Consequently, the judgment and order of conviction and sentence dated 16.10.1981 were set aside. The appellants, being on bail, were acquitted, and their sureties were discharged.

Conclusion:
The appeal was allowed due to the inability to reconstruct the lower court record or conduct a retrial, resulting in the setting aside of the conviction and sentence. The appellants were acquitted, and their bail bonds were discharged.