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2016 DIGILAW 2241 (ALL)

Babu Ram v. State of U. P.

2016-06-27

KARUNA NAND BAJPAYEE

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JUDGMENT Karuna Nand Bajpayee, J. This criminal appeal has been filed on behalf of five appellants namely Babu Ram, Shiv Ram, Siya Ram, Radha Krishna and Ram Krishna. Appellant No. 1 Babu Ram and appellant No. 4 Radha Krishna have died and, therefore, appeal with regard to them has already been abated. Presently the appeal survives only with regard to appellants No. 2, 3 and 5 namely Shiv Ram, Siya Ram and Ram Krishna. 2. The impugned judgement and order dated 27.04.1982 was passed by Additional District & Sessions Judge-VIII, Etawah whereby after holding them guilty, the accused Babu Ram was sentenced to undergo two years R.I. under section 324 IPC, six months R.I. under section 323/149 IPC, one month R.I. under section 426 IPC and one year R.I. under section 148 IPC. Accused Shiv Ram was sentenced to undergo six months R.I. under section 323 IPC, two years R.I. under section 324/149 IPC, one month R.I. under section 426 IPC and six months R.I. under section 147 IPC. Accused Siya Ram, Ram Krishna and Radha Krishna were held guilty but they were released on a probation of two years being the first offenders after taking two sureties for each. It was also ordered that in case of default of not filing the surety bonds accused Siya Ram, Radha Krishna and Ram Krishna shall undergo six months R.I. under section 323 IPC, two years R.I. under section 324/149 IPC and one month R.I. under section 426 IPC and also six months R.I. under section 147 IPC. Today when the case has been called out, none has appeared on behalf of the appellants even in the revised call. 3. As the perusal of the record would indicate that there is no lower court record available in this case and except the copy of the impugned judgement there is no other material to be considered by this court. There appears to be no reason why this court should further wait for the counsel and keep on lingering the decision of this appeal whose fate already appears to be a foregone conclusion. This court, therefore, proceeds to decide this matter taking the assistance of learned AGA on the basis of available record. 4. There appears to be no reason why this court should further wait for the counsel and keep on lingering the decision of this appeal whose fate already appears to be a foregone conclusion. This court, therefore, proceeds to decide this matter taking the assistance of learned AGA on the basis of available record. 4. The prosecution story as it emerges from the perusal of the impugned judgement, is in brief to the effect that on 07.08.1980 at about 3.00 A.M. the accused persons who were five in number made an unlawful assembly in which accused Babu Ram was armed with country made pistol while the accused Siya Ram, Shiv Ram, Radha Krishna and Ram Krishna were armed with lathies. The object of the unlawful assembly was to damage the crops of Vijay Singh and to cause him injury or death. On the day of occurrence when the first informant Vijay Singh raised objections as to why his crops were being destroyed by the accused, he was assaulted upon by the accused. First informant Vijay Singh tried to run away but accused Babu Ram fired by his pistol causing injuries to first informant Vijay Singh on his arm. On hearing the noise witnesses Rukum Singh and Subhash came up on the spot, on which the accused left the place of occurrence. The first information report was lodged by victim Vijay Singh at 8.45 A.M. in the police station Chaubia. Vijay Singh was also medically examined by the doctor who found gun shot wound of 0.2 cm. x 0.2 cm on the elbow; three contusions were also found on his body. After investigation into the case charge sheet was submitted by the Investigating Officer under section 307 IPC. 5. During the course of trial Dr. Girish Kumar was examined as P.W. 1 who had proved the injury report of the victim Vijay Singh. Vijay Singh victim himself was examined as P.W. 2. The other witnesses of fact were not produced as they were alleged to have turned hostile. The Investigating Officer Sri Rama Shanker Singh was examined as P.W. 3. When the accused entered the stage of defence they examined one D.W. 1 Mewa Lal, Lekhpal in order to show that in the field in question there was no such crop existing as was alleged by prosecution. 6. The Investigating Officer Sri Rama Shanker Singh was examined as P.W. 3. When the accused entered the stage of defence they examined one D.W. 1 Mewa Lal, Lekhpal in order to show that in the field in question there was no such crop existing as was alleged by prosecution. 6. After analysing the evidence produced in the trial the court came to conclude that offence u/s 307 IPC was not made out as the gun shot injury caused to the victim was only of a stray pellet while the other injuries were caused by the lathis. In the opinion of the trial court the accused were guilty for committing lessor offences as have already been described and as such they were sentenced to go various terms of imprisonment as stated herein before. 7. Aggrieved by the order of conviction the appeal was filed on behalf of the five appellants in this court which was admitted on 17.5.1982 and notices were issued. Appellants Babu Ram and Shiv Ram were also ordered by this court to be released on bail on the aforesaid date. 8. It appears from the perusal of the order sheet and record of appeal that after the appeal was admitted in the year 1982 it came up to be heard in the year 2003 and at that stage, as it appears from order sheet dated 7.5.2003, a letter was sent to the District & Sessions Judge, Etawah for sending the lower court record which was not received till then. It further transpires from the office report that a letter (Flag A) was received from court below that the entire record except the impugned order and judgement has been weeded out. It further transpires that because of this loss of the original record the reconstruction of the file was also ordered but it did not yield any fruitful result. No other papers except the impugned order and judgement of conviction could be retraced back. It is further revealed from the order dated 24.1.2013 that a fresh report from the Sessions Judge, Etawah was called for in the back drop of the destruction of the record as to whether the retrial of the appellants would be feasible or not. In response to the court's order a letter (at Flag-E) was received from District & Sessions Judge Etawah making it clear that the retrial of the case was not possible. In response to the court's order a letter (at Flag-E) was received from District & Sessions Judge Etawah making it clear that the retrial of the case was not possible. It appears that the Sessions Judge, Etawah had entrusted the responsibility to Sri D.L. Srivastava, Addl. Sessions Judge to reconstruct the file but the Addl. Sessions Judge after having tried to get the relevant papers from all possible sources could not succeed at all in its venture and not even the case diary could be made available as no papers with regard to this old matter could be found even with the police. A report of D.G.C.(Crl) was also sought in this regard but the concerned police station Chaubia reported that no such papers relating to the aforesaid case were available in the police station. It was in the back ground of this complete dearth of material that the retrial of the accused was reported to be not a very feasible exercise. 9. I am satisfied from the correspondence available on the file that sincere efforts have been made in this regard but despite full fledged endavour the lower court record could not be reconstructed. 10. The malady which is being confronted in this appeal has been faced by this court even on former occasions and the court had looked up for some light in the authoritative pronouncements made by the Hon'ble Supreme Court in this regard. I 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. 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 judgement 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 judgement shall operate and the matter shall stand closed. " 11. In another case of 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 had broken out in the court below. In those 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. 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." 12. 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 the case of 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. 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. 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." 13. 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 judgements 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. 14. Keeping in perspective the aforesaid case law and in the aforesaid circumstances as have already been narrated there does not appear to be any possible way to dispose of the appeal than to allow the same. It is so obvious that the accused can assail the validity of the judgement only on the basis of the evidence produced in the court. The original record and deposition of the witnesses have to be perused by the court and then only it can be found whether the evidence produced by the court can be made a legitimate basis to sustain the conviction or not. However, much convincing the judgement may appear to be but we cannot presume that there would not be any such thing on record which may be used to assail the judgement. The trustworthiness of the testimony and its reliability can be adjudged only when this court has the occasion to go through it and analyse, weigh and appreciate the same. However, much convincing the judgement may appear to be but we cannot presume that there would not be any such thing on record which may be used to assail the judgement. The trustworthiness of the testimony and its reliability can be adjudged only when this court has the occasion to go through it and analyse, weigh and appreciate the same. What has been the cross-examination of witnesses and what has transpired from it can also be known only through the perusal of the original record or the copies thereof containing the depositions given in the court. It is indeed so unfortunate that the entire record has been weeded out and this court has absolutely no material on the basis of which the judicial legitimacy or the validity or the correctness of the judgement may be assessed. All the basic documents have been lost. All the depositions of the witnesses have been destroyed. 15. Reflecting upon the desirability or the appropriateness of directing the retrial of the accused it may be relevant to keep in perspective that the incident relates to year 1980 and more than 35 years have elapsed since then. There is hardly any chance that the witnesses of the case would be still available. Even presuming that the witnesses might be alive and may also be brought to the court again in case the retrial is ordered, it is very difficult to ascertain as to what shall be their evidentiary value in the absence of the basic documents like F.I.R. and medical report etc. No previous statement of the witnesses recorded u/s 161 of Cr.P.C. are available on the basis of which their testimony may be tested. No other documents are available in this case which may be utilized to corroborate or contradict the witness. In fact after such a long gap of time since the occurrence took place, it shall be highly hazardous to compel the witnesses to recall the past and gone by events after 35 years. The witnesses may be forced to recall but it is so natural that in such a situation they were bound to substitute the facts by their imagination. Memory fades with the passage of time and even important events can be eradicated from the mind. The witnesses may be forced to recall but it is so natural that in such a situation they were bound to substitute the facts by their imagination. Memory fades with the passage of time and even important events can be eradicated from the mind. In fact after such a long time versions given by the witnesses about the incident shall form a very unsure basis to sustain the conviction of accused thereupon and this court will never be sure as to what were the actual facts and what are the conjectures introduced by the witnesses after such a prolix period of time. The result of the judgement based on such kind of testimony of the witnesses is very likely to be misleading and deceitful. In the aforesaid circumstances it is the considered opinion of the court, as is also the opinion of the court below, that the retrial of the accused will not be a very advisable or apt exercise. 16. In view of the above, the appeal stands allowed. The sureties shall also stand discharged. The order of this court be certified to the lower court forthwith. 17. In the peculiar facts and circumstances of the case this court also deems it proper to direct the District & Sessions Judge, Etawah to enquire into the matter and find out as to how and under what circumstances by whom and at whose instance the lower court record of the trial was weeded out even in a case of conviction regarding which an appeal had been filed in the High Court which was still pending. Ordinarily in the cases of conviction it can be presumed by the common sense that an appeal must have been filed against the same. Adequate steps in the light of the result of inquiry shall be taken by the District & Sessions Judge on the administrative side thereafter. The result of the enquiries and the steps taken thereafter shall be reported to the Registrar General of the High Court preferably within four months. Copy of this order to be placed before the Registrar General to do the needful as he may deem fit.