LAWS(ALL)-1999-5-141

DUKHI Vs. STATE OF UTTAR PRADESH

Decided On May 17, 1999
DUKHI Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) This revision has been filed by the applicants against the judgment and order dated 14-10-1983 passed by the Special Judge (E.C. Act), Allahabad in Criminal Appeal No. 108 of 1983. It was admitted as back as on 22-11-1983. They were convicted in Criminal Case No. 997 of 1981 by the Judicial Magistrate III, Allahabad under Sections 323 and 325, I.P.C. Each of them was sentenced to undergo rigorous imprisonment for three months under Section 323, I.P.C. and rigorous imprisonment for one year under Section 325, I.P.C. Both the sentences were to run concurrently. Aggrieved, they preferred the aforesaid appeal. The Appellate Court allowed the appeal and set aside the conviction and sentences passed against them. The case was remanded to the Magistrate for retrial in accordance with law. It was directed that other evidence could also be recorded as per observations made in the body of the judgment whereafter the statements of the accused could be recorded under Section 313, Cr.P.C. In the body of the judgment, it was observed that the injury reports had not been proved and it was also not proved that the injury of Ram Prasad was grievous. The Magistrate was found to have allowed secondary evidence illegally. It was in this view of the matter that the case was remanded for retrial, permitting the production of additional evidence.

(2.) The contention of applicants/accused in this revision is that the Appellate Court exceeded its jurisdiction by permitting the prosecution to fill up the lacunas at the retrial. It has been contended that the Appellate Court committed an illegality by remanding the case back to the trial Court and for recording further additional evidence.

(3.) Learned counsel for the applicants and the learned A.G.A. for the respondent have been heard. In this case, the record of the Lower Court was summoned, but it has been reported by the Courts below that the same was weeded out as per General Rules (Criminal). On 19-3-1999, this Court directed for the reconstruction of the record of the case, but it has been reported by the District Judge, Allahabad that the reconstruction of the record has not been possible in spite of best efforts. What is available is only the copy of the judgment of the Magistrate and that of the Appellate Court. The incident in this case took place on 22-8-1980 viz., nearly 19 years back.