AWADESH Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against an order dated 19. 3. 1975 passed by X Addl. Sessions Judge, Allahabad convicting the appellants Awadesh, Uma Shanker and Sidh Ganesh in a case under Section 307 I. P. C. Awadesh was convicted under Section 307 I. P. C. and Uma Shanker and Sidh Ganesh under Section 307/114 I. P. C. Awadesh was sentenced to seven years' R. I. while Uma Shanker and Sidh Ganesh were sentenced to two years' R. I. and three years' R. I. respectively. In addition, both of them were also awarded a fine of Rs. 500/-each. It appears that appellant Uma Shauker had been constructing a house and he had engaged Bhullan (P. W. 1) and his niece Premia as labourers to construct that house on payment of Rs. 2 per head per day as wages. Both of them worked for about two months and then they asked for their dues. They were, however, paid at the rate of rupee I/- per day per head only. Bhullan and Premia thereafter refused to work at the place of Uma Shanker. On 31. 3. 1973, Bhullan (P. W. 1) and Ms brother Raidas (P. W. 4) were busy working at their Khalihan, when at about 10 A. M. appellant Awadesh armed with a gun and appellants Uma Shanker and Sidh Ganesh, armed with lathis, arrived there It is said that Uma Shanker and Sidh Ganesh exhorted Awadesh to kill Bhullun, whereupon Awadesh opened fire but the shot, instead of hitting Bhullan hit Raidas. Lallu and Ram Autar were present in the Khalihan and they also received some injuries. Awadesh reloaded his gun to tire at Bhullan but this time the gun misfired. Bhuilan lost no time and hit Awadesh with a lathi and also caught him. Uma Shanker and Sidh Ganesh rushed to the rescue of Awadesh and then Bhullan was. said to have beaten them also. There after Awadhesh, Uma Shanker and Sidh Ganesh left the place and went away. Raidas was taken to P. S. Paschim Sanva on a cot and Bhuilan dictated a report there Later on Raidas was sent to hospital for medical examination. Raidas was hospitalised for treatment, and his injuries were X'rayed also Thereafter the usual investigation followed and eventually the appellants were sent up to stand their trial. The appellants pleaded not guilty and repudiated the truth of the allega tions made against them. They gave their own versions of the incident. They alleged that on the day of occurrence Awadesh and Uma Shanker had been tying bundles of ripened crop in their field when Bhullan and several other persons arrived there and started beating them with lathis. Sidh Ganesh saw this thing, brought his gun from his house and fired in air with a view to scare away those persons. Thereafter they escaped. Uma Shanker and Awadesh were injured and they got their injuries examined. The trial court found the prosecution case to be true and it, therefore, convicted and sentenced the appellants as indicated above. Aggrieved, they have come up in appeal to this Court. In this case the record of the court below is not before us. It has been burnt in the fire that broke out in the Civil Courts' building at Allahabad some time back. I tried to reconstruct the record but could not succeed. The parties were directed to produce whatever papers of the case they may be having but they failed to file any paper. We have, therefore, to hear this appeal in absence of the record of the case. Once the appeal was admitted the entire case became at large and now this court has to find out for itself whether the order passed by the court below convicting the appellants was correct or not. THIS could be found out only after going through the record of the case. In the absence of the record it is not possible to go through the evidence produced in the case and independently find out whether the conviction of the appellants on the evidence present was legally justified or not. Ordinarily, in such a situation, I would have remanded the case for retrial but this course of action will not serve any useful purpose of the non-availability of any paper connected with the case. Trying the case afresh without any such paper will be nothing but an exercise in futility and is bound to cause much prejudice to the appellants. Therefore, in those circumstances, the only course open to this court is to acquit the appellants. THIS may be unfortunate but it cannot be helped. Under law the presumption is that the accused is innocent till he is shown to be otherwise. In this case, in the absence of any evidence it cannot be said with certainty that the appellants were guilty of the offences with which they stood charged. In the result, I allow this appeal and set aside the conviction and sentences passed against the appellants. The appellants are on bail, their bail bonds are discharged and they need not surrender to them. .