VIR PAL Vs. STATE

JUDGEMENT

(1.) This is an appeal against the judgment and order dated 25-5-1978 passed by Sri Girish Chandra, the then VIth Additional Sessions Judge, Bareilly dated 25-5-1978 in S.T. No. 490 of 1975, whereby he convicted the accused-appellants Vir Pal and Rama Kant of the offence under Section 307, I.P.C. and sentenced them to undergo R.I. for a period of 4 years each.

(2.) Heard the learned counsel for the appellants and the learned A.G.A.

(3.) In this case, as per the report of the District Judge, the entire record of the trial Court has been burnt in a fire in the judgeship and that it could not be reconstructed though an effort was made to do the same. All that is available to this Court is the certified copy of the judgment of conviction passed by the learned Sessions Judge. The learned counsel for the appellants has claimed that in the absence of the record of the trial Court, the conviction of the accused-appellants cannot be maintained and that it is such a case in which the remand of the case for retrial ought not to be made because the occurrence took place on 15-5-1975, the conviction of the accused-appellants was made by the learned Sessions Judge on 25-7-1978 and the accused-appellants were admitted to bail by this Court on 5-6-1978. He has placed reliance on the following observations of a Division Bench authority Sita Ram v. State, 1981 Cri LJ 65, in which it has been held : "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 appellate since perusal of the record of the case is one of the essential elements of the hearing of the appeal. The appellant has a right to try to satisfy the appellate Court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that 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 retrial of the case since witnesses normally would be available and it would not cause strain on the memory of witnesses. Copies of F.I.R., statements of witnesses under Sec. 161, Cr. P. C. reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of F.I.R. and statements of witnesses under Section 161, Cr. P. C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State." He has also placed before this Court another Division Bench authority of this Court Ram Nath v. State (1981 All Cr R 431) in which the earlier Division Bench authority of Sita Ram's case was followed. He has also relied on two more subsequent Division Bench authorities;(i) 1992 Suppl ACC 219, Daya Ram v. State.(ii) 1992 (29) ACC 228, Aziz Khan v. State of U. P. in which the earlier authorities aforesaid were followed. The defence in this case was of denial and false implication.