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1992 DIGILAW 651 (MAD)

PARAMASIVAM v. STATE

1992-12-23

K.M.NATARAJAN, S.M.ALI MOHAMED

body1992
Judgment : K. M. NATARAJAN, J. ( 1 ) THIS appeal is filed by accused in S. C. No. 17/1981 on the file of the Sessions Judge of West Thanjavur challenging the legality and correctness of the conviction under section 302 I. P. C. , and sentence of imprisonment for life. ( 2 ) THE accused was tried for the offence of murder on the allegation that on 6. 11. 1980 between 10 and 11 p. m. at Illuppai Korai village he caused the death of one Maruthamuthu cutting him with an aruval indiscriminately all over his body. In support of the said charge the prosecution examined P. Ws. 1 to 17, filed Exs. P-1 top-19 and marked M. Os. 1 to 14. The learned Sessions Judge after, taking into consideration the said oral and documentary evidence, came to the conclusion that the prosecution has proved the guilt of the accused, convicted and sentence him as stated above. Aggrieved by the same the accused preferred this appeal. ( 3 ) THE appeal has been preferred from Jail by presenting the same on 14. 3. 1984 and it was admitted on 3. 4. 1986. When the records were called for from the trial Judge who in his communication No. 10477/91 dated 18. 11. 1991 reported to the effect that the copies of depositions in Sessions Case No. 17 of 1981 of that Court are not available in that court and the Advocate Thiru V. S. Ramalingam, who conducted the same as state Brief also informed that he did not obtain certified copies of depositions in this case and that the notes etc. , if any, prepared by him from depositions at the time of trial of the case, are also not available. Further, the committing Magistrate also reported that no records are available in his Court. Learned Counsel for the appellant vehemently argued that without the certified copies of deposition it is not possible for him to establish his case and substantiate the contention in this appeal. From the material records available it is seen that the date of occurrence was on 6. 11. 1980 and the accused was arrested on 9. 11. 1980. The judgment was passed on 9. 7. 1981. ( 4 ) IN this connection, learned Counsel for the appellant drew the attention of this Court to the relevant provision of the Code of Criminal Procedure viz. 11. 1980 and the accused was arrested on 9. 11. 1980. The judgment was passed on 9. 7. 1981. ( 4 ) IN this connection, learned Counsel for the appellant drew the attention of this Court to the relevant provision of the Code of Criminal Procedure viz. , section 385 (2) wherein it, is provided that the Appellate Court shall send for the records of the case, if such record is not available in that Court and hear the parties. They also invited the attention of this Court to a decision of this Court in Sornam v. State of Tamil Nadu, where in similar circumstances the Bench after taking into consideration the decision in Viswanath v. State of U. P. , and Sitaraman v. State, held: The ratio of the aforesaid decision is that where during the pendency of the appeal, before the High Court, the record in the case was lost or destroyed and there was no possibility to reconstruct the records, the material available on records, being not sufficient to-dispose of the appeal on merits and when the incident took place long before, the accused was entitled to acquittal and retrial was not to be recorded. As adverted to earlier, the Part II records of the case were destroyed and there is no possibility to reconstruct the records. The materials available on record, namely, charge, plea of the accused, examination of the accused before the Sessions Court and the Exhibits are not sufficient for the disposal of the appeal on merits. In such circumstances, applying the ratio of aforesaid decisions, the appeal has to be allowed, keeping in mind that the incident had taken place on 22. 1983 almost six years before. In the result, the appeal is allowed. The conviction and sentence are set aside and the appellant-accused is acquitted. She is directed to be set at liberty forthwith unless required to be detained in connection with any other case. Applying the above ratio to the facts of this case, it is to be noted that the conviction was rendered on 1. 7. 1981 the accused preferred the appeal only in 1986 after condoning the delay and in the meantime the material records viz. Applying the above ratio to the facts of this case, it is to be noted that the conviction was rendered on 1. 7. 1981 the accused preferred the appeal only in 1986 after condoning the delay and in the meantime the material records viz. , the deposition of witnesses which are Part II records of the case were destroyed and when further probed in, it is also found that the certified copy of the deposition was not granted and there is not possibility of reconstructing the records. The material records available on record are only the charge, the examination of the accused under section 313 Cr. P. C. and exhibits. In view of the contention put forward by the accused, they are not sufficient for disposal of the appeal on merit. It is further submitted by learned counsel that the appellant was in Jail ever since the date of arrest during trial till this date, about more than 12 years. In such circumstances, applying the ratio of the decisions of this Court, we have no hesitation in holding that this appeal has to be allowed. ( 5 ) IN the result, the appeal is allowed, the conviction and sentence on the appellant are set aside and he is acquitted. The appellant is directed to be set at liberty forthwith unless he is required in connection with any other case. Appeal allowed.