Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 849 (ALL)

NATHOO LAL v. STATE OF U. P.

2010-03-15

VIJAY KUMAR VERMA

body2010
JUDGMENT VIJAY KUMAR VERMA, J.-Heard amicus curiae Ms. Seema Pandey, Advocate, appearing for the appellants and AGA for the State. 2. This appeal has been preferred against the judgement and order dated 8.4.1978 passed by the 1st Additional Sessions Judge, Bareilly, in S.T. No. 100 of 1977 (State v. Nathoo and others), whereby the appellants Nathoo Lal and Ram Prasad have been convicted and sentenced to undergo rigorous imprisonment for seven years under section 395, IPC. 3. Lower Court record has been burnt in the fire which broke out in Bareilly judgeship in the year 1979 Hence the facts of the case are being mentioned from the certified copy of the impugned judgment, which has been filed in this appeal. 4. The case of the prosecution as mentioned in the impugned judgment is that in the night between 24th and 25th May 1976 Dhani Ram was sleeping in the Khaprail of his house along with his children and wife Smt. Hema P.W. 5: His mother Smt. Champa, P.W. 4 was sleeping at the door of the khaprail. Sukhlal, father of the complainant, was sleeping outside and his uncle Kandhai Lal was also sleeping outside, below the Neem tree. One Chunni Lal Samdhi of Kandhai Lal, who was also staying with them and he too was sleeping below the Neem tree. A lantern was burning inside the court-yard. At about midnight, on feeling the presence of some miscreants, Dhaniram got up and saw about 9 dacoits, who held him and took him out from the Khaprail and assaulted him. Two of the dacoits had covered their faces with dhatas, while the rest had not covered their faces. The dacoits also assaulted his father and mother. On hearing the alarm of the complainant, villagers collected outside and set fire to two heap of phoons, as a result of which the whole area was profusely illuminated. The dacoits were armed with fire' arms and they had also fired shots. Wher Nathop P.W. 8 the licence holder of the village also resorted to gun fire, the dacoits left with the booty. As a result of gun fire by Nathoo Lal (P.W.8) the dacoits were injured and they left trail of blood and blood stained pair of shoes and chappals in the way. Among the dacoits accused Nathoo and Dhannoo, both sons of Dilsukh, by caste Teli, were recognized and were named in Ext. As a result of gun fire by Nathoo Lal (P.W.8) the dacoits were injured and they left trail of blood and blood stained pair of shoes and chappals in the way. Among the dacoits accused Nathoo and Dhannoo, both sons of Dilsukh, by caste Teli, were recognized and were named in Ext. Ka 6, the FIR of the occurrence, which was lodged at P.S. Qila, at a distance of 5-1/2 kms. at 5.45 a.m. on the basis of which case was registered. 5. After investigation, charge-sheet was submitted against Nathoo s/o Asey (appellant No.1 herein) and Ram Prasad s/o Mithoo Lal (appellant No.2) as well as Nathoo and Dannoo both sons of Dilsukh. On the case being committed to the Court of session for trial, charge under section 395 IPC was framed against all the accused persons, to which they pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution examined 13 witnesses in all, who have been mentioned in the impugned judgment. After hearing parties Counsel and taking the entire evidence into consideration, the Court below vide impugned Judgment acquitted the accused Nathoo and Dannoo both sons of Dilsukh and convicted and sentenced the appellants as stated in para 1 above. Hence this appeal. 7. After admission of the appeal, lower Court record was summoned from the sessions judge Bareilly. In response to the letter sent by the office for sending the record of S.T. No. 100 of 1977. Additional Sessions Judge Court No.1 Bareilly vide his letter dated 18.2.2010 has reported that entire record of S.T. No. 100 of 1977 has been burnt in the fire which broke out in Bareilly Judgeship in the month of November 1979 and no paper of 'the case is available. In view of this report, neither reconstruction of the record is possible nor retrial of the accused persons can be made, as no paper of the case is available even in the police station concerned, as is evident from the report dated 18.02.2010 of the In-charge Sessions Judge Bareilly. The case diary also is not available in the police record room. 8. Placing reliance on State of U.P. v. Abhai Raj Singh and another/ it is submitted by Ms. Seema Pandey, learned amiws curiae, that the appellants are liable to be' acquitted, as lower Court record is not available to decide the appeal on merit. The case diary also is not available in the police record room. 8. Placing reliance on State of U.P. v. Abhai Raj Singh and another/ it is submitted by Ms. Seema Pandey, learned amiws curiae, that the appellants are liable to be' acquitted, as lower Court record is not available to decide the appeal on merit. It is also submitted by the learned amicus curiae that re-trial of the accused persons is also not possible at this stage after more than 30 years, as no paper of the case is available. 9. On the other hand, drawing my attention towards the case of Raj Naraill Pandey v. State/ it is submitted by learned AGA that this Court can decide the appeal on merit on the basis of certified copy of the impugned judgment, as has been done by another Bench of this Court in aforesaid case. 10. Having given my thoughtful consideration to the rival submissions made by learned Counsel for the parties, in my considered opinion, the appeal cannot be decided on merit merely on the basis of certified copy of impugned judgment. Although another Bench of this Court in the case of Raj Narain Pandey (supra) has decided the appeal on merit on the basis of impugned judgment only, but I am of the considered opinion that unless the evidence and other papers are available for perusal, the appeal cannot be decided on merit. For deciding the appeal on merit, the evidence is essentially required for perusal and only then the merit of the impugned judgment can be considered. As stated herein-above, in present case, no paper of the session trial is available. Since the papers of the case are not available, hence there is no possibility of re-trial of the accused persons at this stage after more than 30 years. Therefore in view of the' observations made by the Hon'ble Apex Court in the case of State of U.P. v. Abhai Raj Singh (supra), there is alternative except to allow the appeal and acquit the appellants as hearing of the appeal in accordance with the arrangement prescribed under section 386 Cr.P.C. cannot be made and retrial of the appellants is also not possible. 11. Consequently, the appeal is allowed. 11. Consequently, the appeal is allowed. Impugned judgment and order are set aside and the appellants Nathoo Lal and Ram Prasad are acquitted of the offence punishable under section 395 IPC for want of trial Court record and there being no possibility of re-trial. 12. The appellants are on bail. They did not surrender. Their personal bonds and bail bonds are cancelled and the sureties are discharged. 13. Office is directed to send a copy of this judgment to the trial Court for information. 14. The amicus curiae Ms. Seema Pandey will get Rs. 4000/- as her fee.