BHAJAN LAL Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri P. N. Misra for the appellant and learned A. G. A.

(2.) THIS appeal has been filed for challenging the conviction and sentence of the appellants to imprisonment for life under Sections 302 read with 34, IPC by an order dated 30-1-1979 passed by the IVth Addl. District and Sessions Judge, Bareilly in S. T. No. 105 of 1978. After summoning the record by this Court a report was received from the Officer in charge, Record Room, Bareilly judgeship, dated 20-1- 1984 that the record was not available after the fire incident which occurred in the Civil Courts building at Bareilly in the night of 18/19-11-1979.

(3.) THE Apex Court in Abhay Raj Singh's case (supra) declared the order to be illegal and observed as follows in paragraph 6 : "the powers of the Appellate Court when dealing with an appeal from a conviction are delineated in sub-clauses (i), (ii) and (iii) of clause (b) of Section 386 of the Code. THE Appellate Court is empowered by Section 386 to reverse the finding and sentence and acquit. THErefore, the acquittal is possible when there is reversal of the finding and sentence. THE Appellate Court is also empowered to discharge the accused. THE third category which seems to be applicable to the present case is a direction for re-trial by a Court of competent jurisdiction subordinate to the Appellate Court or committed for trial. For exercise of the powers in cases of first two categories, obviously a finding on merits after consideration of the materials on record is imperative. Where that is not possible because of circumstances like the case at hand i. e. Destruction of the records, the proper course for the Appellate Court would be to direct re-trial after reconstruction of the records if in spite of positive and constructive efforts to reconstruct the records the same was impossible. "