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2017 DIGILAW 2290 (ALL)

VISHWA NATH v. STATE OF Uttar Pradesh

2017-10-05

RAJUL BHARGAVA

body2017
JUDGMENT Hon’ble Rajul Bhargava, J.—Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record. 2. This criminal appeal has been filed against the judgment and order dated 31.7.1982 passed by 1st Additional Sessions Judge, Ballia in Sessions Trial No. 89 of 1981 convicting and sentencing the appellants under Sections 323 read with Section 149 IPC to six months rigorous imprisonment, under Section 324 read with Section 149 IPC to two years rigorous imprisonment and under Section 325 read with Section 149 IPC to five years rigorous imprisonment. Appellants Swami Nath and Deo Narain are further found guilty for the offence punishable under Section 148 IPC and each of them is hereby further further convicted and sentenced to undergo R.I. for a period of one year. Appellants Vishwanath, Saudagar, Rama Shanker and Tulsi are further found guilt for the offence punishable under Section 147 IPC and each of them is hereby further convicted and sentenced to undergo R.I. for eight months. 3. At the outset the appeal was preferred against the aforesaid judgment and conviction of six appellants out of which appellant No. 1 Vishwanath, appellant No. 2 Saudagar, appellant No. 4 Tulsi and appellant No. 5 Swami Nath died during the pendency of the appeal and their appeals stood abated by the orders of the Court dated 23.9.2016. 4. The order sheet dated 29.1.2004 reflects that as when the record was summoned by the Court while admitting the appeal subsequently the report was submitted from the Record Room Civil Court, Ballia dated 10.9.2003 that the matter pertains to the year 1978 the record of the trial was weeded out on 15.3.1993. Therefore, this Court directed the District Judge, Ballia for reconstruction of record within two months and ordered for final hearing. Several reminders were sent by this Court for reconstruction of the record and ultimately by order dated 31.5.2013 the District Judge, Ballia was directed to immediately send a report whether it is possible to reconstruct the record or not and as to whether the case can be retried or not. Several reminders were sent by this Court for reconstruction of the record and ultimately by order dated 31.5.2013 the District Judge, Ballia was directed to immediately send a report whether it is possible to reconstruct the record or not and as to whether the case can be retried or not. Pursuant thereto, the District Judge, Ballia vide letter dated 17.7.2013 submitted a report that as per the report of the Chief Judicial Magistrate, Ballia who was entrusted to reconstruct the record of S.T. No. 89 of 1981 State v. Vishwanath and others under Sections 147, 148, 149, 323, 325 IPC, P.S. Narahi District Ballia, reconstruction of the record is not possible. Further it was submitted that as the reconstruction of the record is not possible as no paper relating to the trial is available either with the complaint or the accused or at the Police station retrial is also not possible. 5. Before I deal with the appeal on the merits of the case, I propose to deal with the legal position with regard to the fate of the appeal in the absence of the record of the trial Court which was considered by this Court in two Division Bench cases of Sita Ram v. State, 1981 Cr LJ 65 and Ram Nath v. State, 1982(9) ACC 128. “Where it is not possible to reconstruct the record which has been lost or destroyed it is 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. 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 would be to direct retrial of the case since witnesses normally would be available and it would not cause undue stain on the memory of witness, were however, the matter comes up for consideration after a long gap of years as in the instant case, it would neither be just nor proper to direct re-trial of the case” Relying on the above decision in the subsequent case of Ram Nath v. State (Supra) it was held below : “As all attempts to have the record reconstructed 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 for 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.” 6. In the instant case, the occurrence took place on 3.8.1978 i.e. about 40 years ago, the time is lag between the date of incident and the date on which the appeal came up for hearing is so long that it would cause undue strain on memory of witnesses if they are alive. It is also not known whether the witnesses examined during trial are still alive or not. Moreover, out of six appellants four appellants have already died, the surviving appellants Rama Shanker and Dev Narain are at the fag end of their lives. In this behalf, the Court has observed in its order dated 4.11.2016 that appellant No. 6 Dev Narain is about 70 years old and was suffering from multiple diseases due to which he cannot move anywhere and he is completely bedridden. 7. In view of the aforesaid settled preposition of law as rendered by the Division Bench in Ram Nath v. State (supra), this Court is left with no other option in the absence of any lower Court record to set aside the conviction and sentence of appellant Rama Shanker and Dev Narain and to acquit them of the offence of which they have been charged. 8. In the totality of the facts and circumstances of the case, neither reconstruction of the record nor retrial is possible nor it would have been discharged and proper to direct retrial of the case after 40 years of the incident, I deem it fit to set aside the impugned judgment and order against the appellants Nos. 3 and 6 namely Rama Shanker and Dev Narain, without entering into the merits of the case. 9. Accordingly, the order dated 31.7.1982 passed by 1st Additional Sessions Judge, Ballia is set aside. Surviving appellants Nos. 3 and 6 namely Rama Shanker and Dev Narain, without entering into the merits of the case. 9. Accordingly, the order dated 31.7.1982 passed by 1st Additional Sessions Judge, Ballia is set aside. Surviving appellants Nos. 3 and 6 namely Rama Shanker and Dev Narain are on bail, they need not surrender. The appeal is allowed. Let a copy of this order be communicated to the Court concerned forthwith for compliance.