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2013 DIGILAW 1930 (ALL)

State of U. P. v. Malooka and Others

2013-07-23

KARUNA NAND BAJPAYEE, VINOD PRASAD

body2013
K.N. Bajapyee, J.:— This Government Appeal has been filed by the State appellant against the judgement and order dated 26.3.1985 passed by VIIIth Addl.Sessions Judge,Meerut in Sessions Trial No. 431 of 1983, P.S. Inchauli, District Meerut, whereby accused respondents Malooka, Jaspal, Sardara and Satyaveer were acquitted of the charges under section 302/34 IPC. The incident in question giving rise to this appeal took place on 25.8.1981 at about 8.00 a.m. in which one Kartar Singh was murdered. The case regarding the same was registered at P.S. Inchauli as case crime no. 146/81. After completing the investigation charge sheet was submitted against the accused respondents. Cognizance was taken and the statutory procedure of law was complied with, resulting in the committal of the accused to the court of Sessions where charges u/s 302/34 IPC were framed against them. Oral as well as documentary evidence was produced by the prosecution in order to substantiate the charge. The perusal of the impugned judgement reveals that the learned Addl. Sessions Judge found many demerits in the prosecution case. The failure of the police to comply with the salutary provision of Section 157 Cr.P.C. in letter and spirit; the absence of crime number in the relevant contemporary police papers; the discrepancy of distance from police station in different papers prepared during investigation; the non explanation of delayed dispatch of FIR to the concerned Magistrate; the inadequately explained delay in the performance of autopsy and several other appertaining relevant circumstances were carefully marshalled and weighed by the court giving rise to the finding that the FIR of the case was in all probability an anti-timed document. The incongruity of oral evidence viz a viz medical evidence has also been taken into account and the testimony of witnesses has been carefully analysed on the anvil of probabilities and natural conduct. Non production of material witnesses on significant points necessary to unfold the prosecution story has also been considered. After making elaborate discussions regarding all the crucial aspects of the case the lower court concluded that the FIR was prepared in the police station after making embellishments which substantially deviated from the actual manner of occurrence. The veracity of the ocular testimony of witness was found gravely suspect, and the participation of all the four accused highly doubtful. Having opined thus the benefit of doubt was accorded to the defence side and the prosecution story was disbelieved. The veracity of the ocular testimony of witness was found gravely suspect, and the participation of all the four accused highly doubtful. Having opined thus the benefit of doubt was accorded to the defence side and the prosecution story was disbelieved. Resultantly, the learned trial Judge absolved the accused respondents of all the charges for which they faced the trial. Feeling aggrieved by the impugned judgement of acquittal the State preferred the present government appeal. After granting the leave, appeal was admitted on 28.4.1987. The lower court record was summoned by this court. We have heard the AGA as well as the counsel for the respondents and have also perused whatever record is available before us. The biggest hurdle which we are confronting in this appeal is that even after making the best possible efforts at all the levels the lower court record could not be made available to us. The order sheet of this appeal shows that our predecessor Judges had ordered to trace out the record of the case. In this connection all the correspondence that took place between the office of the District Judge and the office of the District Magistrate and also the office of the Government Advocate at the High Court is available on record before us. The perusal of this correspondence reveals that the District Magistrate vide his letter dated 25.11.2011 had written to the Government Advocate that the original record had been sent to the office of the Government Advocate on 19.11.1985( through office letter no.298/J.A. First). The District Magistrate also seems to have sent some official to bring back the record from the Government Advocates office. But the communication dated 30.1.2012 sent from the Government Advocates office to the District Magistrate reveals that the record in question was reported to have been weeded out from Government Advocates office and that there was negligible possibility of the same being traced out. The letter dated 25.11.2011 by the District Magistrate as well as the letter dated 30.1.2012 sent from the office of the Government Advocate at High Court Allahabad to District Magistrate Meerut both are available on the file. We also have on record the letter of the Sessions Judge, Meerut, dated 15.2.2012 sent to the Section Officer of the High Court in this regard confirming the aforesaid fact. We also have on record the letter of the Sessions Judge, Meerut, dated 15.2.2012 sent to the Section Officer of the High Court in this regard confirming the aforesaid fact. As the record was reported untraceable, or weeded out, this court on 25.3.2011 directed reconstruction of the record. In compliance of this reconstruction order the Sessions Judge,Meerut entrusted the task to Addl. Sessions Judge Sri Arvind Kumar who made all possible efforts at his level to perform the task, but the Sessions Judge vide his communication dated 30.6.2012 has submitted to us that even the reconstruction of record is not possible as none of the concerned parties and none of the other possible sources could furnish any document whatsoever regarding the Sessions Trial. The Sessions Judge has also sent to this court the report dated 28.6.2012 of Addl. Sessions Judge Sri Arvind Kumar in this regard which contains the details of the efforts made by him and also the details of non availability of record at all the possible places or persons. The Addl. Sessions Judge's letter also reveals that the first informant of this case,namely Nepal Singh has already died and his surviving nephew Satya Pal does not possess any relevant paper in this regard. Even the complainant's counsel has no papers available with him. DGC(Crl) Meerut has also reported that there are no relevant papers in his office on the basis of which any reconstruction may be done. The report of the concerned police station Inchauli is also no different and the same too discloses about the non availability of any such papers at the police station. We are satisfied from all the correspondence available on the file that sincere efforts have been made and despite full fledged endavour the lower court record could not be reconstructed. The malady which we are confronting in this appeal has been faced by this court even on former occasions and we looked up for some light in the authoritative pronouncements made by the Hon'ble Supreme Court in this regard. We may usefully refer to the case of State of U.P. Versus Abhai Raj Singh: AIR 2004 SC 3235 again wherein it had been held as under: "...................8. It has been the consistent view taken by several High Courts that when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered. We may usefully refer to the case of State of U.P. Versus Abhai Raj Singh: AIR 2004 SC 3235 again wherein it had been held as under: "...................8. It has been the consistent view taken by several High Courts that when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered. In Queen Empress v. Khimat Singh (1889 A. W. N. 55) the view taken was that the provisions of Section 423(1) of the Criminal Procedure Code, 1898 (in short 'the old Code') made it obligatory for the Court to obtain and examine the record at the time of hearing. When it was not possible to do so, the only available course was a direction for re-construction. The said view was reiterated more than six decades back in Re Sevugaperumal and Ors. (AIR 1943 Madras 391). The view has been reiterated by several High Courts as well, even thereafter. "10............The High Court shall direct re-construction of the records within a period of six months from the date of receipt of our judgment from all available or possible sources with the assistance of the Prosecuting Agency as well as the defending parties and their respective counsel. If it is possible to have the records reconstructed to enable the High Court itself to hear and dispose of the appeals in the manner envisaged under Section 386 of the Code, rehear the appeals and dispose of the same, on its own merits and in accordance with law. If it finds that re-construction is not practicable but by order retrial interest of justice could be better served - adopt that course and direct retrial - and from that stage law shall take its normal course. If only reconstruction is not possible to facilitate High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by Sessions Court is also rendered impossible due to loss of vitally important basic records - in that case and situation only, the direction given in the impugned judgment shall operate and the matter shall stand closed. " In another case of Brahmanand Shukla Versus State of U.P. 2010 (69)ACC 749 a division bench of this court of which one of us (V. Prasad,J.) was a member, had the occasion to deal with a somewhat similar situation in which the record had been lost. " In another case of Brahmanand Shukla Versus State of U.P. 2010 (69)ACC 749 a division bench of this court of which one of us (V. Prasad,J.) was a member, had the occasion to deal with a somewhat similar situation in which the record had been lost. It was observed therein as follows: "It is an admitted fact that now the only document available with the court is the judgment of the trial court. No other paper or document is available for the disposal of the appeal. It is thus apparent that the material available on record is certainly not at all sufficient to dispose of the appeal on merits. In Sita Ram Vs. State 1981,Cr.L.J., 65 also the original record was not available to the appellate court as the same was destroyed as a result of an accidental fire that broke out in the court below. In these circumstances,the Division Bench of this court observed as-under:- " On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are of the opinion that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential element of the hearing of the appeal. The appellant has a right to try to satisfy the appellate court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct re-trial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of FIR, statement of the witnesses under Section 161 Cr.P.C., report of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long. Copies of FIR, statement of the witnesses under Section 161 Cr.P.C., report of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct re-trial of the case, more so when even copies of FIR and statements of witnesses under Section 161 Cr.P.C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State." After making the aforementioned observations and in view of the fact that the court was not in a position to have the record of the case reconstructed, the Bench directed acquittal of the accused in that case. The above Sita Ram"s case (supra) was again considered in Ram Nath Vs. State, 1981 Allahabad Criminal Rulings 431 by another Bench of the Allahabad High Court and the following observations were made:- " The principle laid down in Sita Ram's case fully applies to the facts of the present case. As all attempts to have the record reconstructed failed, this court is not in a position to affirm the conviction recorded by the trial court. So far as the question of ordering a re-trial is concerned, we find that in the instant case the incident in connection with which the accused were prosecuted, took place as far back as 13th of September, 1970, that is, more than eleven years earlier. In such circumstances it will not be desirable to direct a re-trial. So far as the question of ordering a re-trial is concerned, we find that in the instant case the incident in connection with which the accused were prosecuted, took place as far back as 13th of September, 1970, that is, more than eleven years earlier. In such circumstances it will not be desirable to direct a re-trial. In this view of the matter we have no option but to allow Criminal Appeal No. 857 of 1976 and to set aside the conviction and sentence of Ram Nath to acquit him of the offence with which he has been charged." Under sub-section (2) of Section 385 Cr.P.C. it is obligatory on the part of the appellate court to peruse the record before deciding the appeal against an order of conviction. The conviction of an accused cannot be confirmed unless the appellate court peruses the entire record. From the judgments in Sita Ram's case and Ram Nath's case (supra), it is clear that where the record has been lost or destroyed and it is not possible to reconstruct the same, it will not be just and proper to direct the re-trial of the case if a long gap of time has taken place since the commission of the crime. 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." Again in a similar matter like the one at hand in Government Appeal No.224 of 1987 State of U.P. Vs. Om Prakash and others decided on 22.7.2013 this court had observed as under: ".................. 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." Again in a similar matter like the one at hand in Government Appeal No.224 of 1987 State of U.P. Vs. Om Prakash and others decided on 22.7.2013 this court had observed as under: ".................. It will be wholly injudicious and inappropriate for us to upturn an acquittal into conviction without proper appreciation of oral and documentary evidences more so when we are not oblivious of the fact that in an appeal against acquittal the impugned judgment should not be upturned unless it is proved that the same is wholly perverse and no prudent person will adopt the reasoning as that of the learned trial Judge. If on the given facts and circumstances of the case the view of the trial court is reasonable appellate court should be loath and slow in interfering with it. Incident in the present case had occurred in the year 1984 and twenty nine years have gone by. Presumption of innocence of the accused has further been strengthened by the impugned judgment and order of acquittal and this court can set aside the same only after meeting the reasons recorded by the trial court, which exercise is now futile and impossible. Even if we presume that the witnesses of the case are still alive the nature, quality and reliability of their depositions after passing of three decades shall be gravely suspicious. Inevitable natural phenomenon of fading of memory, eradicating and obliterating impressions with overlapping and dissipating of facts as a natural consequence, will gravely diminish the value of their testimonies. Recapitulation and reconstruction of events occurred three decades ago will be anointed with dearth of exactitude and an element of uncertainty bereft of trustworthiness. It shall be impossible to distinguish between truth and falsehood, between reality and imagination. The "vitally important basic records" necessary for a fair trial being non- existent, direction of retrial after such a long drawn out period of time will be a fruitless exercise. It shall be impossible to distinguish between truth and falsehood, between reality and imagination. The "vitally important basic records" necessary for a fair trial being non- existent, direction of retrial after such a long drawn out period of time will be a fruitless exercise. The treacherous sands of faltering memories can certainly not constitute a legitimate and sure basis to determine the fate of the respondent who have already a judicial verdict of not guilty in their favour" Now reverting back to the same bizarre situation involved in the present appeal, again we find that except the certified copy of the impugned judgement & order there is no other record available before us. FIR, post mortem report, site plan, inquest report, recovery memos, and all other documentary pieces of evidence are traceless and unavailable. None of the depositions of the witnesses produced in the court are on the record. As has already been narrated above, the efforts to get the record reconstructed also could not bear any fruit. There is no way to reassess the evidence and find whether the findings recorded by the trial Judge are in consonance with the evidence produced or not. Reappraisal of the evidence can simply not be done in the absence of evidence itself. As we also had the occasion to observe in the case of Om Prakash ( Supra), in this matter too more than 32 years have elapsed after the incident. What shall be the prospect of retrial and what shall be the legitimacy of its out come are serious questions to be pondered over. Even in Abhai Raj Case the Apex Court had entertained the possibility of retrial only in the event of the availability of 'vitally important basic documents' and had not recommended the retrial in their absence. If at all we decide to order the retrial after 32 years of the incident in question, it is not very difficult to understand that in the total absence of all previous statements of all the witnesses and also in absence of all other contemporary documentary evidence, there shall be scarcely any basis to adjudge the reliability of the depositions made in the court. Even otherwise what shall be the trustworthiness of the deposition of witnesses, if at all they are found alive and forced to recapitulate the events that took place more than three decades ago, is a self defeating question. Even otherwise what shall be the trustworthiness of the deposition of witnesses, if at all they are found alive and forced to recapitulate the events that took place more than three decades ago, is a self defeating question. We can also not ignore the settled position of law that the presumption of innocence of accused is certainly not weakened by the judicial verdict of acquittal in their favour, and there is no way by which their acquittal may be set aside except when we could find that the impugned judgement is perverse and the findings recorded by the trial court are not borne out from the evidence on record. There have to be compelling reasons before we set aside the acquittal. The absence of record can certainly not be treated as a valid reason to denounce the validity of the impugned judgement. If the office of the Government Advocate could not preserve and keep the record of the case safe and intact, as has been found in the case, and if the same has been inadvertently weeded out who is to blame? The State has denuded itself from the right to seek the setting aside of the judgement because of its own lackadaisical remissness. The bird has destroyed its own nest. It is unfortunate, but in the light of the facts and circumstances of this case and the law as discussed above, there is no option left than to dismiss the appeal. The acquittal of the accused respondents is hereby affirmed. The appeal stands dismissed. Let this order be communicated to the trial court to discharge the personal and surety bonds of the accused respondents. Destruction or missing of pending appeal's record is not a trivial lapse. Let a copy of this judgement be sent to Advocate General, & Government Advocate and also to Principal Secretary Law. They shall be well advised to set up a proper enquiry to fix responsibility on the derelict official. It is never late to have a heart searching and set the house in order. _____________