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2014 DIGILAW 1810 (ALL)

Sukhlal v. State of U. P.

2014-05-30

ARUN TANDON, ARVIND KUMAR MISHRA I

body2014
JUDGMENT Arvind Kumar Mishra-I, J. The aforesaid Criminal Appeal arises out of judgment of conviction dated 29.1.1980 passed by Shri V.S. Agrawal, the then 3rd Additional Sessions Judge, Pilibhit in Sessions Trial No. 14 of 1979, Case Crime No. 77 of 1978, under Sections 147, 148, 302,/149, 307/149, I.P.C., Police Station Jahanabad, district Pilibhit, whereby the appellants Sukh Lal and Lalman have been convicted under Section 148 , 302/149 and 307/149 I.P.C. and sentenced to undergo two years' R.I., life imprisonment, and three years' R.I. respectively. Further the accused appellants Ram Swaroop, Devi Ram and Chhotey Giri have been convicted under sections 147, 302/149, and 307/149 I.P.C. and sentenced each of them to undergo R.I. for one year, life imprisonment and three years' R.I. respectively. All the sentences have been directed to run concurrently. 2. The accused persons Liladhar son of Lauki, Kundan Lal, Piarey Lal, Roop Lal and Liladhar son of Bihari Lal were acquitted of the said charges levelled against them by the impugned judgment and order dated 29.01.1980. 3. It is relevant to mention here that in this appeal two accused appellants namely Sukhlal son of Moti Ram and Devi Ram son of Lalji, have already died during the pendency of this appeal hence their cases stood abated vide order dated 1.10.2012. Case of the surviving three appellants Lalman son of Jawahar, Ram Swaroop son of Liladhar and Chhotey Giri son of Pooran Giri for the purposes of this appeal is being considered by this Court. 4. We have heard the learned counsel for the appellants and the learned AGA for the state. 5. The biggest impediment we are confronting in this appeal is that even after exploring all possible resources at our command, the lower court record - exhibit Natthi (prosecution papers) - could not be made available to us. 6. At the very outset it is relevant to mention that the entire lower court record is not available. The only lower court record available is the order sheets from 22.01.1979/29.01.1979 upto 29.01.1980, original judgment of Session Trial No.14 of 1979 dated 29.01.1980, charge framing order and charges framed. Testimony of PW-1 to PW-7, statement recorded under Section 313 Criminal Procedure Code of accused persons and testimony of Ram Dayal DW-1. 7. As per report received from District & Sessions Judge, Pilibhit Exhibit Natthi (prosecution papers) are not available. Testimony of PW-1 to PW-7, statement recorded under Section 313 Criminal Procedure Code of accused persons and testimony of Ram Dayal DW-1. 7. As per report received from District & Sessions Judge, Pilibhit Exhibit Natthi (prosecution papers) are not available. Thus the essential prosecution papers i.e. FIR, Chik report, inquest report, post mortem examination report, site plan, charge sheet, injury reports and G.D. etc. are missing. Although we explored all possible avenues to get the missing records reconstructed, but our endeavour did not deliver the required record. However, this particular aspect of the case relating to missing of the prosecution papers and its consequence will be considered by us at the appropriate stage. 8. The prosecution story, in a nutshell, as disclosed in the first information report is that Bhoop Ram and Brij Lal had a quarrel wherein Liladhar son of Louki abused Chaturi Lal. A report in this connection was lodged by Smt. Mehki. On 22.05.1978 at about 12: 00 noon, Sukh Lal, Ram Swarup, Kundan, Piarey, Devi Ram, Roop Lal, Chhotey Giri, Lalman and Liladhar son of Louki arrived at the house of Budhsen. Lalman and Sukh Lal were armed with Pharsa, Liladhar was armed with spear and Lalman was armed with pistol while other persons were armed with Lathis. They called out inmates of the house whereupon Budhsen and his father Chaturi Lal came out of the house. The accused persons exclaimed that they (Buddhsen and Chaturi Lal) should be murdered whereupon Chaturi Lal ran towards field of Ghasi Ram. The accused persons chased him up to the fied of Ghasi Ram and belaboured him. Chaturi Lal also wielded Lathi in his self defence. In the meanwhile Budhsen kept on shouting by hiding himself by the side of his house. Ghasi Ram, Mathura Prasad, Ganga Ram and Makhan came to the rescue of Chaturi Lal but they were also belaboured. In this struggle, Lalman, Sukh Lal, Ram Swarup, Chhotey also sustained injuries. On the side of the informant, Chaturi Lal, Ghasi Ram, Makhan Lal, Ganga Ram, Mathura Prasad and Triloki Devi sustained injuries. Chaturi Lal died on the stop due to the injuries caused to him but Ghasi Ram succumbed to his injuries subsequently in the hospital. The occurrence was seen by Munnal Lal, Bhudev and Liladhar son of Hemraj. They challenged the accused persons whereupon Lalman fired a shot from pistol when the witnesses ran away. Chaturi Lal died on the stop due to the injuries caused to him but Ghasi Ram succumbed to his injuries subsequently in the hospital. The occurrence was seen by Munnal Lal, Bhudev and Liladhar son of Hemraj. They challenged the accused persons whereupon Lalman fired a shot from pistol when the witnesses ran away. Thereafter the accused persons also made their escape good. The injured persons were taken to the Police Station Jahanabad on a cart where Budhsen lodged the report on 22.05.1978 at about 2: 30 p.m. which is Ext. Ka-1. 9. The first information report was noted down in the relevant chik and the case was registered against the accused persons and relevant entry was made in G.D. Ext. Ka-2. Shiv Kishore Mishra, S.I. Immediately proceeded to the spot and saw the dead body of Chaturi Lal lying on the field of Ghasi Ram. He prepared inquest report, diagram of the dead body, challan of the dead body vide Ext. Ka-3 to Ka-5 respectively. The Investigating Officer also collected the blood stained soil and plain earth on the field where dead body of Chaturi Lal was recovered and prepared memo thereof Ext. Ka-6. The dead body of Chaturi Lal was sent to the mortuary in a sealed cover for post mortem examination. 10. Dr. V.P. Agrawal conducted the post mortem examination on dead body of Chaturi Lal on 23.5.1978 and prepared the report Ext. Ka-19. He found the following ante mortem injuries on the dead body: - 1. Incised wound 2 cm x 1 cm on the right side of abdomen. 2. Lacerated wound 1 cm x 1 cm on the dorsum of left foot in middle. 3. Contusion 4 cm x 2 cm on the outer aspect of left upper arm, lower third. 4. Incised wound 2 cm x 1 cm x bone cut on the back of head left side. 5. Incised wound 2 cm x 0.5 cm x muscle just below lower border of mandible. 6. Incised wound 2 cm x 1 cm x bone fractured on the left side of face. 7. Incised wound 1 cm x 1 cm x muscle on the left side face. 8. Incised wound 3 cm x 0.5 cm on the left side of face at the lower border of mandible. 9. Contusion 5 cm x 2 cm on the top and outer aspect of right upper arm. 10. 7. Incised wound 1 cm x 1 cm x muscle on the left side face. 8. Incised wound 3 cm x 0.5 cm on the left side of face at the lower border of mandible. 9. Contusion 5 cm x 2 cm on the top and outer aspect of right upper arm. 10. Contusion 2 cm x 2 cm on the front aspect of left thigh upper part. 11. Contusion 8 cm x 2 cm on the front of left thigh. The cause of death was reported to be shock and haemorrhage as a result of the aforesaid injuries. 11. At a distance of five steps from the dead body of Chaturi Lal, a Lathi was lying, recovery memo of which was made vide Ext. Ka-7. Thereafter further investigation was carried on by Muniraj Singh S.I. who completed rest of the formalities. He also went to the hospital but found that the witnesses were not in a position to make statement, therefore, he could interrogate only Budhsen and also Liladhar son of Hemraj. He also interrogated some other persons on 23.05.1978 and recovered blood stained clothes of the injured persons. He also prepared site plan of the place of the occurrence vide memo Ext. Ka-8. 12. Since Ghasi Ram also succumbed to his injuries in the hospital, therefore, inquest report, diagram as well as challan of the dead body Exts. Ka-11 to Ka-13 were prepared on 23.05.1978. 13. In the meanwhile injured persons were medically examined by Dr. V.P. Agrawal, on 22.05.1978. He examined Ganga Ram, Ghasi Ram, Mathura Prasad, Makhan Lal and Smt. Triloki on 22.05.1978 between 6: 30 p.m. to 7: 20 p.m. and prepared their injury reports Exts. Ka-14 to Ka-18. Injuries of the aforesaid injured persons sustained on the side of the complainant as reported by the doctor are reproduced hereinbelow: 14. Injuries sustained by Ganga Ram on his person are as follows: - 1. Lacerated wound 4 cm x 1 cm x bone deep at the root of nose. 2. Lacerated wound 1.5 cm x 0.5 cm x skin on the right upper lip. 3. Lacerated wound 1.5 cm x 0.5 cm x skin on the chin in middle. 4. Ecchymosis 5 cm x 4 cm on the and around left eye. 5. Ecchymosis 6 cm x 4.5 cm around right eye. 6. 2. Lacerated wound 1.5 cm x 0.5 cm x skin on the right upper lip. 3. Lacerated wound 1.5 cm x 0.5 cm x skin on the chin in middle. 4. Ecchymosis 5 cm x 4 cm on the and around left eye. 5. Ecchymosis 6 cm x 4.5 cm around right eye. 6. Lacerated wound 3 cm x 1 cm x bone on the inner aspect and back of right middle finger. Injuries sustained by Ghasi Ram on his person are as follows: - 1. Lacerated wound 5 cm x 1 cm x bone on left side of head. 2. Lacerated wound 4 cm x 0.5 cm x scalp on the right side of head. 3. Lacerated wound 5 cm x 0.5 cm x skin on the outer and middle of left upper arm. Injuries sustained by Mathura Prasad on his person are as follows: - 1. Lacerated wound 8 cm x 1 cm x scalp on right side of head. 2. Lacerated wound 4 cm x 1.5 cm x skin on the back of right ear. 3. Lacerated wound 1.5 cm x 0.5 cm x muscle at the root of nose. 4. Contused swelling 13 cm x 4 cm on the outer and upper of left leg. 5. Contused swelling 12 cm x 4.5 cm on the outer and upper part of right leg. Injuries sustained by Makhan Lal on his person are as follows: - 1. Lacerated wound 4 cm x 0.5 cm x bone on the right side of head. 2. Lacerated wound 7 cm x 0.5 cm x bone on the back of head right side. 3. Lacerated wound 1.5 cm x 0.3 cm x scalp on the right side of head. 4. Abraded contusion 8 cm x 3 cm back and middle of right side of chest. Injuries sustained by Smt. Triloki on her person are as follows: - 1. Abraded contusion 4 cm x 2 cm on the right side of head. 2. Lacerated wound 2 cm x 0.5 cm x skin on the pinna of left ear on the helix. 3. Contused swelling 12 cm x 3 cm on the back and lower left forearm. On 24.05.1978, Dr. V.P. Agrawal also conducted post mortem examination of dead body of Ghasi Ram and prepared report vide memo Ext. Ka-20. He found the following ante mortem injuries on the dead body: - 1. 3. Contused swelling 12 cm x 3 cm on the back and lower left forearm. On 24.05.1978, Dr. V.P. Agrawal also conducted post mortem examination of dead body of Ghasi Ram and prepared report vide memo Ext. Ka-20. He found the following ante mortem injuries on the dead body: - 1. Lacerated wound 5 cm x 1 cm x bone fracture underneath the parietal bone on the left side of head. 2. Lacerated wound 4.5 cm x 0.6 cm x scalp on the right side of head. 3. Ecchymosis 5 cm x 4 cm around right eye and lacerated wound 0.75 cm x 0.3 cm on the outer part of Ecchymosis. 4. Abrasion 1.5 x 1 cm on the outer aspect of left upper arm. 5. Lacerated wound 4.5 cm x 0.6 cm x skin on the outer and middle of left upper arm. 6. Contusion 2 cm x 1 cm on the outer aspect of left upper arm. 7. Contusion 2.5 cm x 0.75 cm on the back and outer part of left elbow joint. 8. Abrasion 1.5 cm x 1 cm on the front of chest lower part. The cause of death was reported to be shock and haemorrhage as a result of ante mortem injuries. 15. Dr. V.P. Agrawal also medically examined injuries of Sukh Lal, Ram Swaroop, Devi Ram, Lalman and Chhotey Giri - the accused - sustained by them on the very date of incident (22.05.1978) between 8: 00 p.m. to 9: 30 p.m. He prepared injury reports Exts. Kha-3 to Kha-7 in that respect. 16. Injuries sustained by Sukh Lal on his person are as follows: 1. Lacerated wound 6 cm x 0.5 cm x scalp on the left side of head. 2. Lacerated wound 4 cm x 0.75 cm x scalp on the head left side. 17. Injuries sustained by Ram Swaroop on his person are as follows: 1. Lacerated wound 6 cm x 0.5 cm x scalp on the right side of head. 2. Lacerated wound 1.5 cm x 0.5 cm x muscle on the back and middle of left side chest. 3. Contusion 8 cm x 4 cm on the left side back of chest, lower part. 18. Injuries sustained by Devi Ram on his person are as follows: 1. Lacerated wound 6 cm x 0.5 cm x scalp on the left side head. 2. 3. Contusion 8 cm x 4 cm on the left side back of chest, lower part. 18. Injuries sustained by Devi Ram on his person are as follows: 1. Lacerated wound 6 cm x 0.5 cm x scalp on the left side head. 2. Contusion 4 cm x 2 cm on the inner side and back of left forearm in middle. 19. Injuries sustained by Lalman on his person are as follows: 1. Lacerated wound 4 cm x 0.5 cm x scalp on the right side of head. 2. Lacerated wound 3 cm x 0.5 cm x skin on the left side of head. 3. Lacerated wound 3 cm x 0.5 cm x scalp on the right side back of head. 4. Contusion 4 cm x 2 cm on the back of left upper arm lower third. 5. Contusion 4 cm x 1 cm on the right side back of chest in middle. 6. Contusion 4 cm x 1 cm on the left side back of chest lower part. 7. Contusion 6 cm x 1 cm on the left side back upper part. 20. Injuries sustained by Chhotey Giri on his person are as follows: 1. Lacerated wound 5 cm x 0.75 cm x scalp on the head in mid-line. 2. Lacerated wound 1 cm x 0.5 cm x muscle on the back of chest on the right side upper part. 21. In the opinion of doctor, injuries sustained by all the aforesaid five injured persons were caused by some blunt weapon like Lathi which could have been caused about 12: 00 noon on that very day (22.05.1978). 22. After completing the entire formalities, the Investigating Officer filed charge sheet Ext. Ka-9 on 29.06.1978 against the accused persons except Liladhar also. On 28.07.1978 charge sheet Ext. Ka-10 was filed against Liladhar also. Thereafter the case of the casued persons was committed to the court of Sessions where the case was posted for hearing on framing of charge. 23. The trial court after hearing the prosecution and the accused persons found prima facie ground existing against the accused persons for framing charges under sections 147, 148, 302/149 I.P.C. Accordingly, charges were framed against the accused persons on 24.04.1979 and the same were read over and explained in Hindi to them, to which they pleaded not guilty and claimed to be tried. 24. 24. The prosecution in order to prove its case examined as many as seven witnesses namely Budhsen PW-1 informant, Ganga Ram PW-2, Liladhar son of Hemraj PW-3 eyewitness of the occurrence. They are witnesses of fact and they have narrated the very manner of the incident as to how it was perpetrated by the accused persons. Besides, the prosecution has also examined S.I. Ram Nivas Dixit PW-4 who recorded FIR and made entry thereof in G.D., S.I. Shiv Kishor Misra PW-5, and S.I. Muniraj Singh PW-6 both investigated the case and Dr. V.P. Agrawal PW-7 who medically examined injuries both on the side of the informant as well as the accused persons and conducted post mortem examinations of both the deceased persons. Except as above, no other testimony was adduced by the prosecution. 25. Thereafter the case for the prosecution was closed and was posted for recording statement of the accused persons under section 313 Cr.P.C. In their statement under section 313 Cr.P.C, the accused persons stated that they had been falsely implicated in this case due to enmity. In its turn the defence was asked to adduce its testimony whereupon the defence examined Ram Dayal as DW-1. He testified to the effect that the accused persons were assaulted by the informant's side. 26. The trial court after hearing the submissions of the prosecution as well as the defence, concluded that out of ten accused persons, only five accused persons namely Sukh Lal, Lalman, Ram Swarup, Devi Ram and Chhotey Giri are found guilty of committing the crime charged with. Accordingly, the trial court acquitted rest of the accused persons-Liladhar son of Lauki, Kundan Lal, Piarey Lal, Roop Lal and Liladhar son of Bihari Lal. 27. We are conscious of the fact that in absence of records- basically the prosecution papers - it would not be feasible for us to express any view on merits of the appeal. Perusal of order sheet shows the various steps taken by this Court to trace out the missing records and efforts made to reconstruct the same for ensuring proper disposal of this appeal. 28. Perusal of order sheet of this appeal shows that this appeal was admitted on 11.03.1980 when notices were issued and appellants were admitted to bail and the appeal was directed to be listed for hearing. Later on as per procedure, the lower court records were summoned. 28. Perusal of order sheet of this appeal shows that this appeal was admitted on 11.03.1980 when notices were issued and appellants were admitted to bail and the appeal was directed to be listed for hearing. Later on as per procedure, the lower court records were summoned. Several letters/reminders were issued to the District & Sessions Judge, Pilibhit to make available the lower court records. This process continued for a long span of time till the appeal ripened up for hearing. 29. Order sheet dated 29.04.2003 reveals that lower court records summoned by this Court were not sent by the District Judge, Pilibhit. This appeal was listed peremptorily for hearing on 13.07.2012. Later on, the appeal was taken up for hearing on 01.10.2012 when the predecessor division Bench was confronted with dilemma of non-availability of the prosecution records and the Court observed that during course of hearing of this appeal, none of original records/Exhibits either from the prosecution or from the defence i.e. copy of the first information report, Chik report, post mortem examination report, injury reports, recovery memos, inquest report, site plan and charge sheet etc. are available. It was also intimated to the division Bench that in absence of those original records, hearing of this appeal will not be possible because scanning of those records will be essential for just and proper decision of this appeal. Then efforts were made by the devision Bench to make available the missing records with the help of the counsel for the parties concerned and one month's time was granted to both the sides to make available relevant prosecution records/papers at their respective end. Hearing of the appeal was adjourned accordingly to next date. In the same order dated 01.10.2012, however it was also directed that a message be sent to the District Judge, Pilibhit with the request to intimate the Court shortly about the above progress. 30. Thereafter the appeal was taken up for hearing by our predecessor Bench when again the same impediment blocked the way for proper hearing of this appeal. At that point of time, the division Bench explicitly observed that hearing of the appeal is not possible unless missing records are reconstructed. 30. Thereafter the appeal was taken up for hearing by our predecessor Bench when again the same impediment blocked the way for proper hearing of this appeal. At that point of time, the division Bench explicitly observed that hearing of the appeal is not possible unless missing records are reconstructed. In this regard, our predecessor Bench of this Court specifically observed vide order dated 19.02.2013 that we have lower court records but there is no first information report, charge sheet, post mortem examination report, inquest report and other relevant documents of the prosecution and we give two months' time to the court below for reconstruction of the records and transmitting the same to this Court. Therefore, appropriate order was passed for reconstruction of the missing records. 31. In this context, effort made for reconstruction of the records at the level of the District Judge Pilibhit requires elaboration. District Judge, Pilibhit after receiving the order for reconstruction entrusted reconstruction task to Sri Chandra Udai Kumar, Additional District & Sessions Judge, Court No.2, Pilibhit vide his order dated 08.03.2013 whereby he specifically directed him to reconstruct the records of Session Trial No.14 of 1979 State Vs. Sukhpal and others whereupon the Additional District & Sessions Judge, Pilibhit took various measures and explored all possible means to reconstruct the missing records of Session Trial No.14 of 1979. He issued notices to the complainant, his counsel, Police Record Room, office of Chief Medical Officer, Chief Medical Superintendent, Chief Judicial Magistrate, Session Clerk of Additional District & Sessions Judge, Court No.3, Pilibhit, Record Room Civil, S.D.O. Sadar, seeking information. 32. In pursuance of the notices, complainant Budhsen appeared and submitted that he is not possessing any document whatever relating to the aforesaid session trial. He only submitted that he is having one copy of the judgment which he has submitted. From Police Record Room, information was furnished that the first information is kept only for three years, post mortem examination report for one year, case diary, site plan and recovery memo for five years and charge sheet for one year. Police Record Room informed that no relevant document, whatsoever, could be obtained. Even report was sought from concerned Police Station Jahanabad wherefrom also no document was discovered. 33. S.D.O. Sadar Pilibhit also reported non-availability of the first information report. Police Record Room informed that no relevant document, whatsoever, could be obtained. Even report was sought from concerned Police Station Jahanabad wherefrom also no document was discovered. 33. S.D.O. Sadar Pilibhit also reported non-availability of the first information report. Record Room Criminal submitted report that at the time when the records were sent to the High Court, Exhibit Natthi and Kha Natthi were not available. Record Room Criminal further disclosed that no paper relating to the aforesaid session trial is available with it. Similarly, report was submitted by Session Clerk of the concerned Additional District & Sessions Judge, Court No.3, Pilibhit. The information was also sought from the accused Lalman and Ram Swaroop who appeared and expressed their inability to produce any document relating to the concerned session trial, even their counsel Sri V.D. Pandey, expressed his inability to produce any document. 34. One of the counsel for accused died, therefore, information was sought from his son who orally informed that he is not possessing any papers relating to the aforesaid session trial. The aforesaid accused persons Lalman and Ram Swaroop were again summoned and they were asked to make available papers whereupon they expressed their inability to produce the papers. They submitted that they are not possessing any papers like the first information report, site plan, post mortem examination report and charge sheet etc. 35. Notices were also issued to another accused Chhotey Giri at his address whereupon report was submitted from Police Station Jahanabad that the accused Chhotey Giri is living at present in village Deen Nagar, Police Station Bahedi, District Bareilly. On information being sought from Bareilly it transpired that the accused Chhotey Giri went somewhere away from village Deen Nagar in October, 2012. It was reported that the accused Chhotey Giri perhaps has fallen in company with saints and his whereabouts are not known. 36. The Chief Judicial Magistrate, Pilibhit also reported non-availability of the relevant papers. Similarly Sri V.P. Singh Rana, D.G.C. (Crl.) orally informed about about non-availability of the papers. As per the report, since the matter was very old about 34 years, no paper could be obtained from the concerned office or person, therefore, reconstruction of the missing document was reportedly not possible. 37. The District Judge, Pilibhit vide his letter No.533/V Dated: Pilibhit: April 25, 2013 considered the above report and opined that reconstruction of the above lost documents is not possible. 37. The District Judge, Pilibhit vide his letter No.533/V Dated: Pilibhit: April 25, 2013 considered the above report and opined that reconstruction of the above lost documents is not possible. The relevant report of the District & Sessions Judge, Pilibhit dated 25.04.2013 is reproduced hereinbelow: "In compliance of Hon'ble Court's order dated 19.2.2013 passed in Crl. Appeal No.466 of 1980 Sukh Lal & anr. Vs. State of U.P., it is respectfully submitted that the task of reconstruction of FIR, charge-sheet, postmortem report, inquest report and other relevant documents of prosecution was entrusted to Sri Chandroday Kumar, Addl. Sessions Judge, Court No.2. Sri Chandroday Kumar, Addl. Sessions Judge, Court No.2 has submitted his report dated 12.4.2013. I have gone through his report. After exhausting all possible resources for obtaining the copies of the lost documents, learned Judge has come to the conclusion that reconstruction of the above lost documents is not possible. I also concur with the finding of the learned Addl. Sessions Judge, Court No.2, Pilibhit." 38. Reconstruction of missing record was sought to be made from prosecution side as well whereupon an affidavit dated 13.02.2014 has been filed by N. Kolanchi, Superintendent of Police, Pilibhit wherein hectic efforts have been detailed in para 4, 5, 6, 7 & 8 which are reproduced hereinbelow: "4. That Para 283 of the Uttar Pradesh Police Regulation provides for keeping the records in Police Station and list of the same is given in Appendises I and II. According to Appendix-I the first information for a period of three years, charge sheet for a period of one year, case diary for five years and general diary for five years has to be kept in safe custody at Police Station and thereafter that records should be weeded out. The present case is 36 years old and as such the records of that case is weeded out and as such that cannot be reconstructed. 5. That the copies of the post mortem report, injury report, site plan of aforesaid case crime has been sent to the Court concerned along with the charge sheet on 29.6.1978. 6. The present case is 36 years old and as such the records of that case is weeded out and as such that cannot be reconstructed. 5. That the copies of the post mortem report, injury report, site plan of aforesaid case crime has been sent to the Court concerned along with the charge sheet on 29.6.1978. 6. That in compliance of the order passed by this Hon'ble Court, one Sub-Inspector namely Sri Swami Nath Mishra of Police Station Jahanabad has contacted the complainant of the present case namely Sri Budhsen and the complainant has told that he has no document pertaining to the aforesaid case except copy of the judgment. A photostat copies of GD entries made in this regard are collectively annexed herewith as Annexure-1 to this affidavit. 7. That the police has also contacted counsel of the complainant namely Sri Somdutt Sharma and he has also told that he has no documents pertaining to the aforesaid case crime. 8. That the police has also contacted Sri Abhay Kumar Saxena, the present DGC Criminal, Pilibhit and he has also told that he has no document pertaining to the present case. He has further stated that between the period from 1978 to 1980 Sri Dungar Singh was DGC Criminal and now he has died." 39. Thus reconstruction of the missing record i.e. exhibit Natthi (prosecution papers) was not possible even after exhausting all possible means. After exploring all possible avenues, we are convinced that there is no other possible way to reconstruct the lost lower court record. Placed in such a piquant situation, we conclude that reconstruction of the missing record is not possible in spite of our best efforts. 40. At this juncture, it would be appropriate to take note of relevant provisions relating to hearing of appeal as contained under Chapter XXIX of the Code of Criminal Procedure 1973. This chapter contains Sections 372 to 394 but relevant provisions dealing with hearing of appeal are contained under Sections 384, 385, 386 Cr.P.C. Section 384 Cr.P.C. basically deals with summarily dismissal of appeal and stipulates that "upon examining the petition of appeal and copy of the judgment received under Section 382 or Section 383, the appellate court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily..............." 41. Further Sections 385 and 386 Cr.P.C. are reproduced hereinbelow. "385. Further Sections 385 and 386 Cr.P.C. are reproduced hereinbelow. "385. Procedure for hearing appeals not dismissed summarily.- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given- (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant; (iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. (2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground. 386. Powers of the Appellate Court. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground. 386. Powers of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." 42. A cumulative reading of the above referred three Sections ( 384, 385, 386) make it abundantly clear that the appeal is to be decided on merit after perusal of lower court record and hearing the appellant or his counsel and the prosecution if the appeal is not dismissed summarily under Section 384 Cr.P.C. 43. In an authoritative pronouncement reported in AIR 1996 Supreme Court 2439 (1) Bani Singh and others Vs. State of U.P., Hon'ble Apex Court has elaborated meaning of Section 385 and 386 of Criminal Procedure Code 1973 in Para No.8 of the judgment which is being reproduced hereinbelow: " Section 385 (2) clearly states that if the Appellate Court does not dismiss the appeal summarily, it `shall', after issuing notice as required by sub-section (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the Court need not call for the record. On a plain reading of the said provision, it seems clear to us that once the Appellate Court, on an examination of the grounds of appeal and the impugned judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally, unless the appeal is restricted to the extent and legality of the sentence. Obviously, the requirement to send for the record is provided for to enable the Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where the parties consent to its waiver. This becomes clear from the opening words of Section 386 which say that `after perusing such record' the Court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385 (1) which requires the Court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard." 44. This is an extension of the requirement of Section 385 (1) which requires the Court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard." 44. At this stage, we may record that the learned counsel for the appellants has laid stress on point that in the absence of relevant prosecution papers, he will not be able to extend argument and assail the finding of the conviction recorded by lower court. He further submitted that perusal of the record is necessary for proper appreciation of case. Learned AGA for the State also concurred with above submissions. 45. Absence of prosecution papers is great impediment and we look forward to seeking guidance from authoritative pronouncement of Hon'ble Apex Court. 46. In the case of State of U.P. Vs. Abhai Raj Singh and another reported in AIR 2004 SC 3235 , in Para 8, it has been held as under: "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." 47. Again in the same case, Hon'ble Apex Court has expressed about various alternative steps to be taken in the matter of loss of records in Para 10 of the judgment which is extracted as hereinbelow: "We, therefore, set aside the order of the High Court and remit the matter back for fresh consideration. It is to be noted at this juncture that one of the respondents i.e. Om Pal has died during the pendency of the appeal before this Court. It is to be noted at this juncture that one of the respondents i.e. Om Pal has died during the pendency of the appeal before this Court. 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. The appeals are accordingly disposed of." 48. We further notice that the prosecution papers are missing in this case and the incident took place on 22.05.1978 and missing record could not be reconstructed even after exhausting all possible means. Papers like FIR, Chik report, injury reports, inquest report, post mortem examination report and site plan etc. are vital prosecution papers. Thus direction for retrial and fresh adjudication at this stage will not serve the purpose because retrial is rendered almost impossible due to loss of basic prosecution papers discussed above. 49. In a similar case where lower court record was not available and reconstruction of record did not succeed, a division Bench of this Court has in the case of Sita Ram and others Vs. 49. In a similar case where lower court record was not available and reconstruction of record did not succeed, a division Bench of this Court has in the case of Sita Ram and others Vs. State 1981 Crl.L.J 65, made observation in Para 11 which is quoted herebelow: "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 elements 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 retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of F.I.R., statements of witnesses under Section 161 Cr. P.C. reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduely long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of F.I.R. 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. 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." 50. In the above referred case of Sita Ram (supra) the division Bench acquitted the accused in view of the fact that the lower court record could not be reconstructed. This aspect of Sita Ram case (supra) was again considered by another division Bench of this Court in the case of Ram Nath Vs. State 1982 (19) ACC 128 (decided on 3.11.1981) wherein also following observations were made: - "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 re-constructed, the Bench directed acquittal of the accused in that case. 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 re-constructed have 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. 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 and to acquit him of the offence with which he has been charged." 51. In similar circumstances another division Bench of this Court in the case of Brahmanand Shukla Vs. 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 and to acquit him of the offence with which he has been charged." 51. In similar circumstances another division Bench of this Court in the case of Brahmanand Shukla Vs. State of U.P. 2010 (69) ACC 749 made following observation in Para 10: - "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 retrial as the same cannot be conducted at all in absence of these documents. In the light of the above discussions and circumstances mentioned above, we have no other alternative but to allow the appeal, set aside the conviction and sentence of the appellant and to acquit him." 52. In view of the above discussed citations of this Court as well as Hon'ble Apex Court, it is abundantly clear that in such a situation when records of the case are missing and as per dictum of Sections 385 and 386 Cr.P.C., criminal appeal is to be decided after perusal of the records and hearing the submissions of the parties. This Court cannot overlook above mandate of law and confirm the judgment of conviction at appellate stage. 53. We find ourselves unable to decide this appeal on merits. It is pertinent to mention that learned counsel for the appellants insisted time and again when the appeal was taken up for hearing that in absence of the prosecution papers, he will not be able to make any submission on merits of the case for which availability of the prosecution papers are essential. 54. As discussed above, re-trial of the case is not possible on account of absence of the essential prosecution papers i.e. first information report, Chik FIR, site plan, inquest report, post mortem examination report, charge sheet, case diary, injury reports etc. 54. As discussed above, re-trial of the case is not possible on account of absence of the essential prosecution papers i.e. first information report, Chik FIR, site plan, inquest report, post mortem examination report, charge sheet, case diary, injury reports etc. Even affidavit filed by Sri N. Kolanchi, Superintendent of Police, Pilibhit dated 13.02.2014 unambiguously discloses information regarding the period for preservation of the prosecution papers and consequent thereto weeding out of the same after lapse of the stipulated period. In para 9 of the affidavit, it has been disclosed that the relevant prosecution papers have been weeded out due to which the deponent is handicapped to reconstruct the documents pertaining to the present case. In view of the above particular circumstances, the order of re-trial will not serve any purpose after gap of around 35 years when the incident took place on 12.05.1978. 55. In view of the relevant case law discussed hereinabove and particularly guidelines provided by Hon'ble Apex Court in the case of Abhai Raj (supra), it is our considered opinion that all the three options open in such case virtually impel us to conclude that but for loss of the missing prosecution papers, it would not be feasible to record any finding on merits of the appeal. As per the settled principles of criminal jurisprudence, every accused carries with him presumption of innocence even at appellate stage. Therefore, as per guidelines laid down in the case of Abhai Raj (supra), we conclude that the lower court judgment of conviction and sentence dated 29.01.1980 is liable to be set aside. 56. Accordingly, the appeal is allowed. The impugned judgment and order dated 29.01.1980 is hereby set aside and the present surviving appellants namely Lalman, Ram Swaroop and Chhotey Giri are acquitted of offences with which they have been charged. Their bail bonds are cancelled and sureties are discharged. 57. Let a copy of this judgment be certified to the trial court for its intimation.