RAM NATH Vs. STATE

JUDGEMENT

(1.) IN Sessions Trial No. 286 of 1971 INdrajit alias Babban, Chhabi Nath, Ram Narain, Ram Midhi and Ram Nath were put up for trial for committing various offences under Sections 149, 302, 307. 148, 149/324 and 149/323 IPC in connection with an incident which is said to have taken place on 13th of September, 1970. The Sessions Judge by his judgment dated 21st of April, 1976 convicted Ram Nath for an offence punishable under Section 302 IPC and sentenced him to imprison ment for life. He acquitted Ram Narain of charges under Sections 307,148, 149/324 and 149/323 IPC. He further acquitted the remaining accused of various offences with which they had been charged. Aggrieved, Ram Nath preferred Criminal Appeal No. 857 of 1976 before this Court. The State was also aggrieved by acquittal of various accused by the Sessions Judge and filed Criminal Appeal No. 1892 of 1976. 2. Unfortunately while the two appeals were pending before this Court the record of the case has been lost. Various attempts made to have the record of the case reconstructed have failed. The District Judge, Allahabad has now reported, vide his report dated 19th of October, 1981 that it is not now possible to have the record of the case reconstructed any further. The material already available on record is certainly not at all sufficient to dispose of the appeals on merit. A similar situation arose before a Division Bench of this Court in the case of Sita Ram v. State 1981 Cr. L. J, wherein the Division Bench observed thus:- "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 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 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, where, 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. " 3. After making the aforemen tioned observations and in view of the fact that the Court was not in a position to have the record of the case re-constructed, the Bench directed acquittal of the accused in that case. 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 re-constructed 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 far back as 13th of September, 1970, that is more than eleven years earlier. IN such circumstances it will not be desirable to direct retrial. 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 charg ed. Further the State Appeal, namely, Govt. Appeal No. 1892 of 1976 is to be dismissed. 4. IN the result, Criminal Appeal No. 857 of 1976 is allowed. Conviction and sentence of Ram Nath is set aside. He is acquitted of the offence with which he was charged. Ram Nath is on bail. He need not surrender and his bail bonds are discharged. Government Appeal No. 1892 of 1976 fails and is dismissed. .