BHAGIRATH & OTHERS Vs. STATE OF U P

JUDGEMENT

(1.) This criminal appeal has been filed on behalf of four appeallants namely Bhagirath the appellant no. 1, Hari Nath the appellant no. 2, Sri Krishna the appellant no. 3 and Channa the appellant no. 4 against the judgment and order of conviction dated 29.4.1982 passed by VIIIth District and Sessions Judge, Etawah in S.T. No. 123 of 1981 whereby the appellants have been convicted under Sections 333, 332 and 379 of I.P.C. to undergo sentence of 5 years, 2 years and 01 year rigorous impriosonment respectively. All the sentences were to run concurrently.

(2.) The appeal with regard to the appellants no. 3 and 4, Srikrishna and Channa has already been abated because of their death and it survives only with regard to the appellants no. 1 and 2 namely, Bhagirath and Harinath respectively.

(3.) The perusal of the record reveals that the incident relates to the year 1977 and the appeal was filed after conviction in the year 1982. The perusal of the ordersheet further reveals that after filing of the appeal, the same was admitted and notices were issued. The bail was also granted to the appellants, Bhagirath, Srikrishna, Harinath and Channa on 3.5.1982. It appears that long thereafter when the appeal was taken up, the office report was placed before the Court, which revealed that on 26.11.2002 a letter was sent to the District and Sessions Judge, Etawah to send the lower court's recort, on which a letter from the District and Sessions Judge, Etawah was received by the office with the information that the record of the case has already been weeded out. It further transpires from the ordersheet that on 8.7.2003, Hon'ble Onkareshwar Bhatt, J. (since retired) before whom the appeal was placed, was pleased to direct reconstruction of the record. In compliance of this order, as the office report dated 30.1.2004 reveals, the attempts to resurrect the file were made and in this regard, Sri V.K. Tyagi, Additional District and Sessions Judge, Etawah was appointed as the Officer In-charge to reconstruct the file. But according to the report of the Additional District and Sessions Judge, the only papers which could be made available, were the injury report of the first informant Ramsnehi dated 20.2.1977 and his X-ray report dated 23.2.1977 in the form of certified copies from the office of Chief Medical Superintendent, Etawah. Apart from this, no other document of any kind could be made available from either side of the parties to the case. The report of the District and Sessions Judge, Etawah dated 27.11.2003 forms part of the record and has also been perused by this Court, which indicates the same fact. No record with regard to the statement of the witnesses examined in the court could be re-traced despite fullfledged efforts. It further transpires that in the light of the report from the District and Sessions Judge, Etawah, when this appeal was taken up in the year 2004, Hon'ble K.N. Ojha, J. (since retired) decided to proceed with the matter as such and in order to make the presence of the accused-appellants available before this Court, issued coercive process on 23.3.2004. Thereafter, it further transpires from the perusal of the ordersheet that for several years up till the year 2012, efforts and coercive measures to ensure the presence of the accused-appellants continued and eventually, the counsels for the surviving accused-appellants appeared before the Court along with the appellants on 29.10.2012. The ordersheet dated 30.10.2012 also reveals that Sri Shiv Nath Singh, learned counsel for the appellants appeared before the Court and informed that the appellants, who were duly identified by him, have already obtained their bail in compliance of Court's order and they were also present in the Court. It further transpires that as for certain reasons, the appeal could not be taken up soon thereafter, and three further years elapsed, notices were again sent to the appellants informing them about the readiness of the appeal for hearing and according to the office report, notices were duly served upon the surviving appellants no. 1 and 2 namely, Bhagirah and Hari Nath respectively.