# Bhagirath & Ors v. State Of U.P

- **Citation:** (2016) 6 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-27
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagirath-ors-v-state-of-u-p-44035
- **Pages:** 8

## Text

6 All. Bhagirath & Ors. Vs State Of U.P.

11
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.06.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Appeal No.- 1082 Of 1982

Bhagirath & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants:
G.P.Dixit, A.R.Gupta, S.S.Tiwari, Satyam Singh, Shiv Nath Singh

Counsel for Respondent:
A.G.A.

HELD:-

- Conviction cannot be sustained where entire trial record including depositions is lost.
- Medical and X-ray reports are only corroborative and not substantive evidence.
- Retrial after nearly 40 years would be unjust and impractical.
- Conviction cannot be presumed correct in absence of evidence.
- Appeal allowed; conviction and sentence set aside.
- Administrative inquiry directed against officials responsible for weeding out record.

Case Law Cited:-
None

(Delivered by Hon'ble Karuna Nand Bajpayee, J.)

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.
12 INDIAN LAW REPORTS ALLAHABAD SERIES

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 accusedappellants 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.

4. Today, when this appeal has been taken up which was listed for final hearing, none has
appeared on behalf of the surviving appellants even in the revised call.

5. Heard learned A.G.A. for the State and perused the record.

6. Ordinarily, this Court in the absence of counsel could have appointed an 'Amicus Curiae'
in this matter to argue on behalf of the appellants. But such recourse would have been necessary
6 All. Bhagirath & Ors. Vs State Of U.P.

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only if there was, at all, any possibility of the appeal being dismissed. As has already been noted
that the entire record of the case has been lost and the only available papers on record which could
be re-traced back are just the certified copies of the injury report and the X-ray report of the first
informant and of course the judgment of the case. Apart from these papers, there is absolutely
nothing available on record. In such a situation, in the light of the settled principles of law laid
down by this Court and also by the Hon'ble Apex Court, there does not appear to be any possibility
to maintain the conviction of the appellants and, therefore, there is hardly any need to appoint any
'Amicus Curiae' and further consume the Court's time in that process. The appeal has to be decided
on the basis of the available record which is far too scanty. Court is only required to peruse the
same and come at its own conclusion which in the peculiar circumstances of the case appears to be
inevitable and foregone both. Because of the same reason, this Court taking the assistance of the
learned A.G.A. deems it fit to proceed in the matter, peruse the record and discuss the law in this
regard in order to arrive at a lawful conclusion in the case.

7. The facts of the case as they emerge from the perusal of the impugned judgment are like
this:-

The appellants are said have been cuting the forest tries on 20.2.1977 and when the
forest guard, Ramsnehi raised objection to the same, he was assaulted upon as a result of which he
received certain injuries. The charge-sheet was submitted after due investigtion into the case and
during the process of trial, charges under Sections 379, 332 and 333 of I.P.C. were framed against
the accused-appellants which they denied. During the course of trial P.W.-1 Ramdas, P.W.-2
Ramsnehi, both of whom were forest guards, were produced in the court and they also deposed in
the court about the aforesaid occurrence having been committed by the appellants. Some other
bystanders are said to have intercepted and saved the guards and on interception of some more
persons who gathered on spot, the accused-appellants fled away. The F.I.R. of the case was lodged
which was exhibited as Ext.-Ka-1. The forest guard Ramsnehi was medically examined by Dr. S.D.
Mishra, P.W.-3, who has deposed in the trial court about the injuries found on the person of
Ramsnehi, which were in the nature of six lacerated wounds, two abrasions, swellings and three
contusions. The injured P.W.-1 Ramsnehi was also X-rayed by Dr. Chandra Prakash, who found
fracture on finger and metacarpal bone of Ramsnehi. P.W.-1 Ramdas and P.W.-2 Ramsnehi, the
witnesses of fact, were examined and apart from them, Dr. S.D. Mishra (P.W.-3), Head Constable
Sarju Prasad (P.W.-4), who has prepared chik report, Dr. Chandra Prakash (P.W.-5), who prepared
X-ray report, were also examined in the trial court. After weighing the evidence and appreciating
the same, the trial court found the four accused- Bhagirah, Harinath, Srikrishna and Channa guilty
of having committed the said offences and as a result thereof, they were convicted for the alleged
offences accordingly as has already been described hereinbefore.

8. It appears to be appropriate to touch upon the relevant case laws applicable in a situation
like this as has been involved in the present matter. The malady which this Court is confronting in
this appeal has been faced by this court even on former occasions and the Court had looked up for
some light in the authoritative pronouncements made by the Hon'ble Supreme Court in this regard.
14 INDIAN LAW REPORTS ALLAHABAD SERIES

This Court may usefully refer to the case of State of U.P. Versus Abhai Raj Singh: AIR 2004 SC
3235 again wherein it had been held as under:

"...................8. It has been the consistent view taken by several High Courts that
when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction
should be ordered. In Queen Empress v. Khimat Singh (1889 A. W. N. 55) the view taken was that
the provisions of Section 423(1) of the Criminal Procedure Code, 1898 (in short 'the old Code')
made it obligatory for the Court to obtain and examine the record at the time of hearing. When it
was not possible to do so, the only available course was a direction for re-construction. The said
view was reiterated more than six decades back in Re Sevugaperumal and Ors. (AIR 1943 Madras
391) . The view has been reiterated by several High Courts as well, even thereafter.

"10. ...........The High Court shall direct re-construction of the records within a period
of six months from the date of receipt of our judgment from all available or possible sources with
the assistance of the Prosecuting Agency as well as the defending parties and their respective
counsel. If it is possible to have the records reconstructed to enable the High Court itself to hear
and dispose of the appeals in the manner envisaged under Section 386 of the Code, rehear the
appeals and dispose of the same, on its own merits and in accordance with law. If it finds that reconstruction is not practicable but by order of retrial interest of justice could be better served -
adopt that course and direct retrial - and from that stage law shall take its normal course. If only
reconstruction is not possible to facilitate High Court to hear and dispose of the appeals and
the further course of retrial and fresh adjudication by Sessions Court is also rendered
impossible due to loss of vitally important basic records - in that case and situation only, the
direction given in the impugned judgment shall operate and the matter shall stand closed. "

9. In the case of Sita Ram Vs. State 1981,Cr.L.J., 65 also the original record was not
available to the appellate court as the same was destroyed as a result of an accidental fire that broke
out in the court below. In those circumstances, the Division Bench of this court had proceeded to
observe as under:-

" On a careful consideration of the relevant statutory provisions and the principle
laid down in the cases cited before us we are of the opinion that 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 appellant since perusal of the record of the case is one of the
essential element 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 undue strain on
the memory of witnesses. Copies of FIR, statement of the witnesses under Section 161 Cr.P.C.,
report 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 re-trial of the
6 All. Bhagirath & Ors. Vs State Of U.P.

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case, more so when even copies of FIR 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."

10. After making the aforementioned observations and in view of the fact that the court
was not in a position to have the record of the case reconstructed, the Bench directed acquittal of
the accused in that case. The above Sita Ram"s case (supra) was again considered in Ram Nath
Vs. State, 1981 Allahabad Criminal Rulings 431 by another Bench of the High Court and the
following observations were made:-

" The principle laid down in Sita Ram's case fully applies to the facts of the present
case. As all attempts to have the record reconstructed failed, this court is not in a position to affirm
the conviction recorded by the trial court. So far as the question of ordering a re-trial is concerned,
we find that in the instant case the incident in connection with which the accused were prosecuted,
took place as far back as 13th of September, 1970, that is, more than eleven years earlier. In such
circumstances it will not be desirable to direct a re-trial. In this view of the matter we have no
option but to allow Criminal Appeal No. 857 of 1976 and to set aside the conviction and sentence
of Ram Nath to acquit him of the offence with which he has been charged."

11. It also appears to be requirement of law under Section 385 (2) of Cr.P.C. that the
decision of appeal must precede the perusal of the original record which include the depositions of
witnesses of fact and the witnesses of formal nature, apart from the relevant documents like
medical reports etc. It will be very unjust to confirm the conviction unless the entire record is
perused. The observations made in the cases of Sitaram and Ramnath (supra) shall also make it
clear that in the event of the record having been lost or destroyed, if it is not possible to reconstruct
the same, it will not be appropriate or just to direct retrial of the case after a yawning gap of time
lapsed after commission of the crime in question.

12. It is also trite law that the evidence on the basis of which the court can act upon and
proceed to convict an accused has to be the evidence of the witnesses produced in the trial court. If
the incident was witnessed by some people, they must come in the trial court and depose about the
same on oath. The testimony of the witnesses, who had the occasion to see the occurrence, is
substantive piece of evidence, which may be acted upon by the courts. In order to seek the
corroboration of the same, the prosecution may use the previous statement of the witnesses for that
purpose under Section 157 of Evidence Act, if it is in the nature of F.I.R. or in the nature of the
statement given before the Magistrate recorded under Section 164 of Cr.P.C. The statements of the
witnesses given before the investigating officer are not to be used as corroborative material and are
prohibited under the law to be used as such. The injury report or the X-ray report which may
16 INDIAN LAW REPORTS ALLAHABAD SERIES

indicate the presence of injuries on the victim, is also useful only as a piece of corroborative piece
of evidence and they are not by themselves substantive piece of evidence. If the injured-victim is
produced in the trial court or if some other witnesses are produced in the trial court deposing about
the presence of the injuries on a particular victim or deposing about the assault having been made
on the victim by a particular accused, then this evidence given in the court may be corroborated by
the injury report of the victim. But if the statements of the witnesses, whether they are the
statements of the first informant or the statements of other witnesses or the victim, are themselves
not available in the court, it is so obvious that the injury reports of the victim have nothing to
corroborate. As has already been pointed out that the lower court's record has already been lost and
even the reconstructed file does not contain any statement of the witnesses and therefore, there is
absolutely no evidence available on record which may be weighed or relied upon in order to uphold
or to test the validity of conviction of the accused. The genuineness or the reasonableness, the
validity or the correctness of the judgment can be adjudged only when the same is appreciated in
the light of the evidence that has been produced in the court. The evidence produced in the court
may justify a particular judicial verdict and the same may also fall short of vindicating the same.
The appeal may be allowed or dismissed only on the basis of the perusal of the record of evidence
produced in the court which unfortunately, is not before this Court and there is no possible way to
obtain or redeem the same.

13. Whenever the courts have confronted such a situation where the loss of record is
reported, the very first requirement for the Court has been to make sincere attempts to re-surrect the
file and retrace the same. If it is found that the same has been lost beyond redemption, the
reconstruction of the file must be attempted as has been done in the present matter also. If the court
succeeds to get the record reconstructed, the appeal has to be heard on that basis. Sometimes
reconstucted files contain sufficient material to help the court to decide the appeal on the basis of
the merits. But when the matter becomes older, chances for reconstruction gets more and more
bleak. The incident of this case took place in the year 1977 and it is almost 40 years now that have
elapsed since then. In such a situation, as it was so apparent, that the reconstruction of the file from
possible original sources was also very unlikekly. The presiding judges of this Court had also
proceeded in the matter in the same direction as has already been mentioned but the efforts yielded
no very fruitful result and only two papers could be brought on record which were the certified
copies of the injury report and the X-ray report of the victim and nothing more. The testimonies of
the eye witnesses and the depositions of other formal witnesses etc. have all been lost and swung
into oblivion. In the event of failure to get back the evidence in the form of reconstructed record,
the only other course left is to direct a re-trial in the case. If this Court undertakes such a course,
then in a matter like this which is related to an incident that had taken place 40 years back, there is
scarcely any chance for the relevant witnesses to be surviving or being available still. Even if it is
presumed that the witnesses are alive and are intact and are also prepared to give evidence before
the court, it is very difficult to say as to what shall be the evidenciary value of such witnesses, if
they come and depose before the trial court. It may be relevant to mention that the medical report of
the victim-first informant indicates that he was 37 years old at that time when he was medically
examined. On that reckoning, he would be by now of about 76 or 77 years in age, if he is still
surviving. If such a witness is forced or asked to recall the events which took place 40 years back,
6 All. Bhagirath & Ors. Vs State Of U.P.

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the recollected narration of the events is very likely to be deceptive or misleading. Momory is a
biological process and with the passage of time it obliterates. The impressions get dim and
befuddled and the re-collected events overlap and impinge upon each other and many of them may
even get eradicated altogether beyond redemption. In such a situation, if a man taxes his mind to
reconstruct such antiquated old events, this process shall be fraught with the possibility of
imaginations and conjectures taking the place of facts. If such a witness is forced to give evidence
about the incident which took place 40 years back, the very fact that testimony shall be based on
the laboured recollection of such an old incident will make the courts always unsure about the
legitimacy of such forced recollection and passing the judicial verdict on such kind of testimony
may lead to a misleading injudicious outcome, much more so because there are no previous
statements of the witnesses available on record either in the form of F.I.R. or in the form of their
statements recorded under Section 161 of Cr.P.C., on the basis of which their testimony may be
tested. In the peculiar facts and circumstances of the case, this Court therefore does not deem it
appropriate to make a direction of re-trial as the same does not appear to be a justifiable course.

14. It is unfortunate that the appeal of a convicted accused has to be allowed even though
there is a possibility that the conviction may have been based on worthy material and on merits.
But there is no other reasonable or legal option available to be adopted by this Court. This Court
can certainly not uphold the conviction of the appellants under the presumption that the evidence
produced in the court against them must have been good enough to sustain the conviction. The
reliability of the evidence or the sufficiency of the same cannot be presumed by this Court against
the accused and any judicial decision in the matter can be arrived at only after the perusal of the
same.

15. In view of the above, this appeal stands allowed. The judgement and order of
conviction dated 29.4.1982 passed passed by VIIIth District and Sessions Judge, Etawah in S.T.
No. 123 of 1981 is hereby set aside. The bail bonds of the sureties shall also stand discharged.

16. Before closing on, it appears necessary to direct the District and Sessions Judge,
Etawah to set up an inquiry in this matter and find as to how and by whom and at whose instance
the original record of the case was weeded out. The judgement and order passed by the court was
that of conviction and not of acquittal. Even common sense would tell that an appeal must have
been filed against the same by the accused. Even the papers regarding the bail or their copies are
also kept in concerned court or in the record rooms. It is shocking to see that the original trial
court's record got weeded out during the pendency of the appeal which this High Court was to hear
and decide. A vigorous fact finding intense inquiry shall be ensured by the Sessions Judge as the
incidence of such weeding out is not just a freak solitary dereliction surfacing before this Court in
this case alone. Similar recklessness which could have been even deliberate, has been noticed by
this Court in some other cases also. After conclusion of the inquiry the needful administrative
action shall be taken against the person or persons which may be found liable. The result of the
inquiry and the action taken shall be communicated to the Registrar General of this Court
preferably within six months from now.
18 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The District and Sessions Judge, Etawah is also directed to take adequate measures in
order to ensure that no such incidence of weeding out the record during the pendency of the appeal
or revision takes place in future. Fullproof machanism must be evolved and ensured by him in this
regard.

18. Copy of this order to be certified to the court concerned and the District and Sessions
Judge, Etawah forthwith by fastest mode available. A copy of this order shall also be placed before
the Registrar General for his perusal so that he may also take necessary steps in this regard in order
to avert and pre-empt any such happening again in the courts below.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.06.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Appeal No.- 1271 Of 1982

Babu Ram & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for Appellants:
G.P.Dikshit, A. K. Srivastava, Nisar Uddin

Counsel for Respondent:
A.G.A.

Held:-

Conviction cannot be sustained in absence of trial court record. Retrial after long lapse of time is neither just
nor feasible. Appeal allowed and appellants acquitted.
Case Laws Cited:-

State of U.P. v. Abhai Raj Singh, AIR 2004 SC 3235;
Sita Ram v. State, 1981 Cr.L.J. 65; Ram Nath v. State,
1981 Allahabad Criminal Rulings 431

(Delivered by Hon'ble Karuna Nand Bajpayee, J.)

1. This criminal appeal has been filed on behalf of five appellants namely Babu Ram, Shiv
Ram, Siya Ram, Radha Krishna and Ram Krishna. Appellant No. 1 Babu Ram and appellant No. 4
Radha Krishna have died and, therefore, appeal with regard to them has already been abated.