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2016 DIGILAW 3886 (ALL)

IQBAL @ RAMPAL v. STATE OF U. P.

2016-12-02

SHAILENDRA KUMAR AGRAWAL

body2016
JUDGMENT Hon’ble Shailendra Kumar Agrawal, J.—Heard learned counsel for the appellant Shri R.K. Mathur as Amicus Curie as well as learned A.G.A. for the State and perused the record. 2. This appeal has been filed against the judgment and order dated 13.9.1982 passed by Shri M.H. Khan, III, Additional Sessions Judge, Mujaffarnagar in sessions trial No. 58/1981 convicting the appellant under Section 25 (I) (a) Arms Act and sentencing him for a period of one year rigorous imprisonment. 3. The two accused Malu and Iqbal @ Rampal were charged for the offence punishable under Sections 148 and 307 read with Section 149 IPC. They were further charged under Section 25 (I) (a) Arms Act. Their case was committed to the Sessions Court on 27.1.1981. 4. In brief, the prosecution case is that on 29.2.1980, PW1 alongwith SI Pitam Singh (PW1), HC Daulat Ram, HC Dharamvir and six constables were returning to Kandhala from the railway station on foot after checking the train and at about 10.15 pm, on Budhana-Kandhala road, near the grove of Faizi Miya which is towards the South of Budhana-Kandhala Road, they heard some murmuring sound from inside the groves. The SO then flashed his torch inside the grove when he saw 5-6 persons sitting inside the grove. The police party then threw a challenge to those persons but they began to run away. The police then chased them in the grove when one fire was also shot by the miscreants although none was got injured. The police party then arrested two of those miscreants after chasing them who were Balu and Iqbal alias Rampal, the accused persons. The police then conducted their personal search in the grove and from the possession of the accused Balu, one 12 bore country made pistol was got recovered alongwith one live cartridge. One missed cartridge was also found in the barrel of the pistol. One D.B.B.L gun factory made No. 2057 D/8-1970 and three live cartridges (Ex. 4 to 6) and one khoka (Ex. 7) were found from the possession of accused Iqbal which articles were taken into police custody. One missed cartridge was also found in the barrel of the pistol. One D.B.B.L gun factory made No. 2057 D/8-1970 and three live cartridges (Ex. 4 to 6) and one khoka (Ex. 7) were found from the possession of accused Iqbal which articles were taken into police custody. SI Pitam Singh prepared the recovery memos and then the accused persons were broght to thana where S.N. Aggarwal lodged the report on 29.2.1980 at 11.45 pm on which basis, the case was got registered at the thana and investigation was started by SI Rajpal (PW2) who inspected the place of occurrence on 14.3.1980 and prepared the site plan and after submitted the charge-sheet after completing the investigation. 5. The prosecution examined SI Pritam Singh Bhati as PW1, SI Rajpal as PW2, SI S.N. Aggarwal as PW3, HC Rampal Singh as PW4. 6. PW1 and PW3 are the witnesses of the alleged occurrence and PW2 is the IO and PW4 is the formal witness who is a Malkhana Moharrir PW1 and PW3 both the witnesses narrated the prosecution story in detail and supported the prosecution version. PW1 stated that when he was going alongwith S.N. Aggarwal and others at the time of the checking from railway station Kandhala towards Kandhala Bus Stand on the Budhana-Kandhala Road and when they reached near the grove of Faizi Miya, they heard some murmuring inside the grove which indicated that some persons had collected in the grove. They were five or six in number. A torch was flashed on them. Those persons began to run away. The police party chased them and one of them opened fire towards the police party. However, none was injured because some trees were standing in between. He and other members of the police party succeeded in arresting all those persons at about 10.15 pm and on the personal search of Balu, the accused, a pistol Ex. 1 having a missed cartridge Ex. 2 in his barrel and a live cartridge Ex. 3 were recovered from him. A D.B.B.L gun factory made and three cartridges Ex. 4 to 6 were recovered from the possession of the accused Iqbal. Rest of the formalities were completed on the spot regarding sending of bundle etc. 7. The PW-3 supported the version of PW-1. PW-2 S.I. Rajbal has proved the site plan (Ext. Ka.6), charge-sheet (Ext. Ka. 7 to 9) and sanctioned order (Ext. 4 to 6 were recovered from the possession of the accused Iqbal. Rest of the formalities were completed on the spot regarding sending of bundle etc. 7. The PW-3 supported the version of PW-1. PW-2 S.I. Rajbal has proved the site plan (Ext. Ka.6), charge-sheet (Ext. Ka. 7 to 9) and sanctioned order (Ext. Ka.10 and Ka.11). 8. It has been argued by learned Amicus Curiae that as there is no public witness to corroborate the testimony of police witnesses and there are contradictions in the statements of witnesses and no case of riot is made out because only two accused were arrested on the spot and prosecution has not proved that there were five accused. So no case can be made out for the offence under Section 147 or 148 I.P.C. And learned Lower Court itself has not found any charge to be proved under Section 307. Only the case made out in the trail Court was under Section 25 Arms Act and there are many contradictions and omissions for which the Lower Court record is necessary and without the original record this Court cannot appreciate the evidence. 9. The appellant is also not traceable. As per the report of District Judge Muzaffarnagar dated 18.10.2016, the original record has been weeded out and reconstruction is not possible in anyway. Now, it has been argued by learned Amicus Curiae that only documents available to the Court is a judgment of the learned Trial Court. No other paper or document is available for the disposal of the appeal. Hence, there is not sufficient material available on the record to appreciate the evidence recorded in the Trial Court. In Sita Ram v. State, 1981 Cr LJ 65, a Division Bench of this Court has observed that where original record was not available to the appellate Court and reconstruction of the record, which has been lost or destroyed, is not possible, then it will not be legally permissible for the appellate Court to confirm the conviction of the appellant. Since, the 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 satisfy the appellate Court that the material on record did not justify his conviction and that right cannot be denied to him. Since, the 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 satisfy the appellate Court that the material on record did not justify his conviction and that right cannot be denied to him. As the case is very old one, the time lack between the date of accident and the date on which the appeal is coming for hearing is very long, it would not be appropriate to direct retrial of the case. Since, witnesses normally would not be available and documents cannot be available because all relevant papers have been weeded out. In such circumstances, the accused will be prejudiced and prosecution would be greatly handicapped in establishing its case and retrial would be reduced to a mere formality in telling agony and hardship to the accused and waste of time, money and energy of the state. In that circumstance, this Court has no option except to pass an order of acquittal of the appellants. 10. In State of U.P. v. Malooka and others, 2013 (3) JIC 575 (All), in a Division Bench case it was laid down that accused appellant should be acquitted and appeal should be dismissed where reconstruction of record, despite multi-prolonged approach, not possible and where there is more than 32 years old occurrence. 11. The above view also finds support from Sukhlal and others v. State of U.P., 2014 (86) ACC 425. The Hon’ble Division Bench held that it was obligatory for the Appellate Court to obtain and examine the record. The Trial Court cannot overlook mandate of law and confirm the judgment of conviction at the appellate stage without scanning the records. When the learned Lower Court has send the report after exploring all possible avenues regarding reconstruction of record and there is no other way possible to reconstruct the record of Lower Court. How the appeal can be argued and how the appellant can assail the findings of the conviction record by the Lower Court. 12. As regard retrial of the case is concerned, when reconstruction is not possible in anyway as the case is very old one and the incident took place on 29.2.1980. Thirty six years have been elapsed, it would not be possible to trace out the witnesses. All are Government servants. Now F.I.R., Chick reports sanction letter granted by District Magistrate etc. As regard retrial of the case is concerned, when reconstruction is not possible in anyway as the case is very old one and the incident took place on 29.2.1980. Thirty six years have been elapsed, it would not be possible to trace out the witnesses. All are Government servants. Now F.I.R., Chick reports sanction letter granted by District Magistrate etc. could not be reconstructed, then how retrial will serve the purpose. I think direction for retrial and fresh adjudication at this stage will not serve the purpose because retrial is rendered almost impossible. 13.This view was also adopted in the cases of Ram Nath v. State, (1982) 19 ACC 128 and Pyare Lal and others v. State of U.P., 2010 (70) ACC 55 Alld. 14. In similar circumstances in State of U.P. v. Abhay Raj Singh and another, (2004)4 SCC. It has also been held by the Hon’ble Supreme Court that the proper course for the Appellate Court in the circumstances where records of Trial Court has been destroyed or is not made available to Appellate Court, direction for retrial should be issued but it has also been held that if fresh adjudication by the Sessions Court is also rendered impossible due to loss of vitally important basic records. In that case and situation only, the directions may be given for acquitting the accused. And the matter shall stand closed. 15. As per 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 records. Having consideration of Sections 384,385 and 386 of Cr.P.C., I am also of the opinion that only by perusing the judgment of the trial Court it will not be appropriate to hear the appeal on the merits. 16. In view of the above, the appeal is allowed. The conviction and sentence of the appellant is hereby set aside and he is acquitted from the charge under Section 25 Arms Act. He is on bail. He need not to surrender, his bail bond is cancelled and sureties are discharged. 17. A copy of judgment is directed to transmit to the Trial Court for its intimation.