ZILLA AND ORS Vs. STATE

JUDGEMENT

(1.) The Appellants in this case were convicted by the learned Sessions Judge, Muzaffarnagar on 22-1-1951 Under Sections 304 IPC and 148 IPC and were sentenced to five years rigorous imprisonment and six months rigorous imprisonment respectively in Criminal Sessions Trial No. 66 of 1950 in respect of an offence said to have been committed on 2-4-1950.

(2.) Their appeal in this Court was admitted on 24-1-51 and the Appellants were ordered to be released on bail to the satisfaction of the District Magistrate of Muzaffarnagar. When this appeal came up before me for hearing it was agreed by counsel for the State, the complainant and the Appellants that the entire record of the case had been lost. Inasmuch as the appeal had already been admitted, and Section 423 of the Code of Criminal Procedure enjoins that the record must be perused, I could not possibly decide the appeal as an appeal. I could not decide it by merely reading the judgment. By my order dated 10-10-1955 I sought the assistance of counsel and the parties to enable me to reconstruct the record. Neither the counsel for the Appellants nor the counsel for the complainant was able to help me in this regard. On 23-4-56 I asked the learned Government Advocate to file an affidavit indicating what evidence was still available and what documents could be produced. According to the affidavit dared 1-8-1956 sworn by one Sheodutt Sharma, an Ahalmad in the court of the Sub-divisional Magistrate Kairana, district Muzaffarnagar all the prosecution witnesses produced in the Sessions Court as also the defence witne ses were still alive and were available save and except Bhagwana and Srimati Ramdei. From para. 6 of the affidavit referred to it also appears that fresh copies of most of the Documents which were filed by the prosecution in the case are available inasmuch as these were mostly copies of orders of courts or copies of revenue registers.

(3.) It is conceded before me by both the counsel for the Appellants and counsel for the State that although I could not dispose of the appeal in terms of Section 423 Code of Criminal Procedure, because there is no record but I can under my inherent power set aside the conviction and sentence and order a retrial. This Court has in similar circumstances in Queen-Empress v. Khimat Singh,1889 AWR 55 ordered a retrial of the accused. The same view was taken In re Sivugaperumal and Ors. Support for the point of view that in the circumstances a retrial may be ordered is obtained from the case Arjun Padhi v. Siate, 1952 AIR(Ori) 237 Courts appear to have come to the conclusion that where the record had been lost it was in the interest of the accused person himself that a retrial should be ordered, and have ordered a retria1 or ordered the court concerned to use secondary evidence of such part of the record as was destroyed (such secondary evidence being available) and to proceed with the trial.