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2015 DIGILAW 3056 (ALL)

State of U. P. v. Sundari

2015-09-24

PRATYUSH KUMAR, VIKRAM NATH

body2015
JUDGMENT Both the appeals are directed against the judgment and order dated 24.03.1987 passed in Sessions Trial No. 236 of 1982 (State Vs. Sundari and others) and Sessions Trial No. 325 of 1983 (State Vs. Gopal Mishra), whereby accused-appellants Sundari, Jayanti, Gopal and Jagdish were convicted and sentenced under Sections 325 read with Section 34 and 149 to undergo three years R.I and under Section 324 read with Section 34 and 149 I.P.C to undergo two years R.I. In addition to it accused Jagdish, Gopal and Jayanti were further convicted and sentenced to one year's R.I. each for the offence under Section 147 I.P.C and accused Sundari was sentenced to undergo one year R.I. under Section 148 I.P.C. 2. The Government Appeal No. 1890 of 1987 has been filed by the State assailing the finding of acquittal of all the four accused for offence under Section 302 /34 I.P.C. The Criminal Appeal No. 873 of 1987 has been filed by accused-appellant Sundari, Jayanti, Gopal and Jagdish against their conviction and sentence. 3. We have heard Sri S. N. Tripathi, learned Additional Government Advocate for the State and Sri K. K. Singh, learned counsel appearing for the accused in both the appeals. 4. The order-sheet reveals that the lower court records are not traceable. Direction was issued to the learned District Judge, Jaunpur to get the record reconstructed. The learned District Judge, Jaunpur has submitted a detailed report dated 01.11.2010 mentioning that the reconstruction is not possible and the officer entrusted for getting the record reconstructed has also submitted a detailed report that the reconstruction cannot be done. 5. Sri S. N. Tripathi, learned Government Advocate, has submitted that there are 74 such appeals in which the Lower Court Record (LCR) was received by the office for filling of the Government Appeal, but the same has since been misplaced by the office of Government Advocate and the record is not traceable despite all possible efforts. In the said list, the present Government Appeal (Serial No.33) is also mentioned. The learned Government Advocate had made a statement that it is not possible for the Government Advocate to trace out the said record. 6. It appears that the Government is not keen to pursue this appeal as it has itself lost the Lower Court Record (LCR) and has not coordinated to get the same recovered. 7. The learned Government Advocate had made a statement that it is not possible for the Government Advocate to trace out the said record. 6. It appears that the Government is not keen to pursue this appeal as it has itself lost the Lower Court Record (LCR) and has not coordinated to get the same recovered. 7. The incident in the present case is of the year 1981 almost 34 years ago. The judgment of the trial court is of the year 1987. The appeal is pending for the last 28 years. In absence of the record the direction for retrial would be of no purpose inasmuch as, the FIR, inquest report, the injury report, the postmortem report, site plan and other recovery memos are not available and as such nothing can be proved by directing retrial. Further retrial after a lapse of such a long time would also not serve the ends of justice, inasmuch as, requiring the witnesses to depose about the incident which took place 34 years ago, their memory would be falling and they would not be in a position to give an accurate account of the incident. 8. For the above reasons, we are not inclined to issue any direction for retrial. In such circumstances, we relying upon the judgment of the Apex Court in the case of State of U.P. Vs. Abhai Raj Singh and another [2004 (2) JIC 337 (SC)] and Division Bench judgment of this Court in the case of Brahmanand Shukla Vs. State of U.P. [LAWS (ALL)-2010-4-14], proceed to decide the appeals accordingly. 9. The only option that remains with us is to dismiss the Government Appeal and to allow the Criminal Appeal and set aside the conviction and sentence recorded by the Trial Judge. 10. Accordingly, the Government Appeal No. 1890 of 1987 is dismissed and the Criminal Appeal No. 873 of 1987 is allowed. The judgment of the trial court dated 24.03.1987 in so far as it records conviction and sentence is set aside and the accused-appellants are hereby acquitted. The accused-appellants are on bail. Their bail bonds and sureties are cancelled. The sureties are discharged from their liabilities. In case the accused-appellants are not wanted in any other case, they need not surrender.