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2013 DIGILAW 445 (ALL)

STATE OF U. P. v. SHIV RAM

2013-02-06

AMAR SARAN, BACHCHOO LAL

body2013
Bachchoo Lal, J. Case called out in the revised list. Learned AGA is present. We have perused the trial court judgment whereby the accused-respondents Shiv Ram, Subedar, Jageshwar, Jai Chand, Rameshwar, Madan Lal, Avadh Behari, Sheo Balak, Vijay Bahadur alias Raj Bahadur and Nanhey alias Suresh have been acquitted by the order of the Sessions Judge, Farrukhabad dated 17.2.82, under Sections 148, 302/149, 307/149 and 436/149, IPC. In this case it is admitted that the leave was granted on 3.5.1983 by a Single Judge. There is an order of the Division Bench dated 15.11.2010 which shows that in the present case efforts are being made for reconstruction of the record. However, a report was received from the office forwarded by the O.S.D. ( Crl.) that the Sessions Judge, Farrukhabad had reported that all efforts of reconstruction were made, but in vain. This Court sought a detailed report of the circumstances why reconstruction was not possible. A letter dated 4.9.2012 was received which mentions the detailed steps taken for reconstructing the record. The District Judge had ordered on 26.2.11 that the record of S.T. No.320/80, State Vs. Shivram be got reconstructed as the High Court had called for the record on 23.5.03. Thereafter, the then Incharge, record room, District Court, Farrukhabad had given a letter dated 28.7.2003 that apart from the judgment dated 17.2.82 no other document was available in the record room and on 22.8.84 the other documents other than the judgment had been weeded out. After the order of the District Judge dated 26.2.11 notice was issued to the accused, who appeared before the Court and informed the Court that they had been made accused in the aforesaid case which had resulted in acquittal in 1981. They did not possess any document and even their advocates Jagat Narain Sinha, Rajendra Singh Rathore and Jagwant Singh Yadav had all died. Thereafter, the incharge inspector Kannauj was issued notice for supplying the original records and carbon copies of the FIR, Site plan, charge sheet, postmortem report, letter of medical examination, G.D. and C.D.s, but they again informed that no documents were available at the police station, hence, reconstruction was not possible. Perusal of the judgment shows that the incident in question took place on 5.3.80 at about 3.00 p.m. at village Arhangapur. Perusal of the judgment shows that the incident in question took place on 5.3.80 at about 3.00 p.m. at village Arhangapur. The first information report was lodged on the same day at 5.10 p.m. against 15 accused persons wherein allegations of murder of Smt. Kaushalya, wife of Banwari Lal, Smt. Chandrawati, wife of Chotey Lal and Bhaiya Lal, son of Banwari Lal were committed and murders of Mewa Ram, son of Banwari Lal and Ram Autar and Hari Narain, sons of Mehi Lal were attempted. It is also alleged that the murders were committed in the house of Hari Narain. The common object of unlawful assembly was annihilation of the family of Hari Narain. All the accused persons were armed with rifles, guns and pistols. The grounds of acquittal mentioned by the trial Judge were that the FIR lodged by the informant Hari Narain, PW-2 was wholly silent regarding the assault on Ram Autar, PW-1, Mewa Ram, PW-3 and the murder of Smt. Chandrawati. It created a doubt in the mind of the Trial Judge whether the first version of the incident was prepared by Hari Narain and scribed by Prabhakar Singh and thereafter the parts of the story relating to the assaults on Ram Autar, Mewaram and murder of Smt. Chandrawati appears to have been developed. Also in the letter for medical examination, crime number was not noted. If the first version was ready and if the case had been registered and the letters were sent for medical examination, crime number should have been mentioned. This case according to the trial Judge gives rise to an inference that the first version was prepared after the letter was sent for medical examination of the injured. The investigating officer appears to have arrived at the spot and then dictated the FIR and built up the story against the accused and thus, a tutored version had been set up. Star witness Hari Narain, PW-2 admitted that there was long standing enmity between the accused Ram Autar and Hari Narain. As per the prosecution story the main target of the invaders was Hari Narain, PW-2, but he was spared and the accused persons have attacked Ram Autar, PW-1 and killed an innocent lady, Smt. Chandrawati instead of Hari Narain and there was no good reason that the principal target would have been spared. As per the prosecution story the main target of the invaders was Hari Narain, PW-2, but he was spared and the accused persons have attacked Ram Autar, PW-1 and killed an innocent lady, Smt. Chandrawati instead of Hari Narain and there was no good reason that the principal target would have been spared. All the three eye witnesses examined in the case were interested witnesses, who had a motive for falsely implicating the accused. Hari Narain had admitted that he had other enemies. A large number of persons were nominated in this offence and it was observed that the evidence was not very reliable. The investigation was tainted and independent corroboration was wanting. In view of the fact that record could not be reconstructed inspite of repeated efforts there was no way by which the finding of the trial court could have been tested in the light of the evidence on record. Section 385, Cr.P.C. provides that in the contingency if the appeal is not dismissed summarily by the appellate court it has to give notice of the time and place of hearing of the appeal to the appellant or his pleader. Section 385( 2) provides that "The Appellate Court shall then send for the record or the case if such record is not already available in that court and hear the parties". Section 386, Cr.P.C. provides that the appellate court after perusing the record and hearing the appellant or his pleader it can only under Section 386( 1), Cr.P.C. reverse the order of acquittal or direct that further inquiry be made or that the accused be re-tried or committed for trial. Even in the decision of the Apex Court in State of U.P. Vs. Abhai Raj Singh, 2004 ( 50) ACC 691 it is provided that only if reconstruction is not possible to facilitate the High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the Sessions Court is also rendered impossible due to loss of vitally important basic records-in that situation only, the direction given in the impugned judgment shall operate and the matter shall stand closed. In the present case, no basic documents were available to facilitate the High Court to hear and dispose of the appeal after considering the case and it was also not possible to order the learned trial Court to try the case afresh as the vitally important records were not retrievable. This court, therefore, has no option but to dismiss the appeal against the order of acquittal. The Government Appeal is, therefore, dismissed.