# Briskshbhan @ Birkhey and others v. State of U.P

- **Citation:** (2010) 1 ILRA 246
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-16
- **Case number:** Criminal Appeal No. 1905 of 1981
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/briskshbhan-birkhey-and-others-v-state-of-u-p-41567
- **Pages:** 3

## Headnote

Sri Bhanu Pratap Singh
Sri Dharam Pal Singh
A.G.A.

Criminal
Appeal-Appeal
against
conviction order dated.25.08.81- offense
under section 147, 353,149, 307 IPCAppeal
admitted-record
summonedsession judge Jhansi in 2001 reported
that the Original record weeded out in
the year 1992 itself-except certified copy
judgement
nothing
there-even
reconstructed of record after 29 years
not possible-held-appeal can not be
decided on merit-except acquittal of
appellant following the ratio of judgment
of Apex Court in Abhay Raj Case.

Held: Para 7

From the report made by the Sessions
Judge, Jhansi, this fact is borne out that
the record of Session Trial No. 9 of 1980
was weeded out in the year 1992 and
original judgement only is available in
the
file.
From
the
report
dated
15.09.2007
of
the
Sessions
Judge,
Jhansi, this fact is also borne out that
reconstruction of the record is not
possible. I agree with the submission of
the learned counsel for the appellant
1 All] Briskshbhan @ Birkhey and others V. State of U.P.

247
that no useful purpose would be served
after a gap of about twenty nine years to
direct retrial of the accused persons, as
no paper of the case is available.
Therefore,
having
regard
to
the
observations made by the Hon'ble Apex
Court in the case of State of U.P. Vs.
Abhay Raj Singh (supra) there is no
alternative
except
to
acquit
the
appellants, as hearing of the appeal in
accordance with the arrangement made
in section 386 Cr.P.C.can not be made
and retrial also is not possible.
Case law discussed:
(2004 (50) ACC 591), 2(010 (1) ADJ 53).

## Text

246 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

"(i) A single post of Class-III
available in an Intermediate College
governed by the 1921 Act can be filled by
way of promotion; and the case of Palak
Dhari Yadav (supra) has not been
correctly decided."

That since the impugned judgment
and order has been passed relying on the
judgment of this Court in the case of
Palak Dhari Yadav (supra) which has
been subsequently declared as not laying
the correct law, therefore, we are of the
considered opinion that the impugned
judgment and order challenged in the
present special appeal is not sustainable in
the eye of law and liable to be set aside.

7. There is another aspect of the
matter that in case of one post of clerk is
to be filled up by direct recruitment and
not by promotion then it would amount to
denying any avenue of promotion to the
Class-IV employees as the post in
question would be filled up by direct
recruitment and the Class-IV employees
would be denied of opportunity of
promotion on Class-III post of clerk,
which would lead to stagnation, adversely
affecting the Class-IV employees.

8. In view of the above, the
impugned judgment and order dated
29.08.2003 is hereby set aside. The order
dated 23.05.2003 of the D.I.O.S. Fatehpur
cancelling the approval of promotion of
the appellant-petitioner on the post of
clerk is quashed. The consequences shall
follow. The appeal is hereby allowed. No
order as to costs.
---------
APPELLATE JURSDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2010

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Appeal No. 1905 of 1981

Briskshbhan @ Birkhey and others

...Appellants
Versus
State of U.P.

 ...Opposite Party

Counsel for the Appellants:
Sri G.S. Chaturvedi
Sri Apul Mishra
Sri Rahul Mishra

Counsel for the Opposite Party:
Sri Bhanu Pratap Singh
Sri Dharam Pal Singh
A.G.A.

Criminal
Appeal-Appeal
against
conviction order dated.25.08.81- offense
under section 147, 353,149, 307 IPCAppeal
admitted-record
summonedsession judge Jhansi in 2001 reported
that the Original record weeded out in
the year 1992 itself-except certified copy
judgement
nothing
there-even
reconstructed of record after 29 years
not possible-held-appeal can not be
decided on merit-except acquittal of
appellant following the ratio of judgment
of Apex Court in Abhay Raj Case.

Held: Para 7

From the report made by the Sessions
Judge, Jhansi, this fact is borne out that
the record of Session Trial No. 9 of 1980
was weeded out in the year 1992 and
original judgement only is available in
the
file.
From
the
report
dated
15.09.2007
of
the
Sessions
Judge,
Jhansi, this fact is also borne out that
reconstruction of the record is not
possible. I agree with the submission of
the learned counsel for the appellant
1 All] Briskshbhan @ Birkhey and others V. State of U.P.

247
that no useful purpose would be served
after a gap of about twenty nine years to
direct retrial of the accused persons, as
no paper of the case is available.
Therefore,
having
regard
to
the
observations made by the Hon'ble Apex
Court in the case of State of U.P. Vs.
Abhay Raj Singh (supra) there is no
alternative
except
to
acquit
the
appellants, as hearing of the appeal in
accordance with the arrangement made
in section 386 Cr.P.C.can not be made
and retrial also is not possible.
Case law discussed:
(2004 (50) ACC 591), 2(010 (1) ADJ 53).

(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. Heard Sri Rahul Mishra,
Advocate holding brief of Sri Apul
Mishra, counsel of the appellants and
AGA for the State.

2. This appeal has been preferred by
the appellants Briskshbhan @ Birkhey,
Ram Prasad, Meharban, Lalta, Jagdish,
Pratap, Rajendra Singh, Ram Swaroop,
Siyaram @ Siya, Girwar Sahai, Jamuna
and Har Prasad against the judgement and
order dated 25.08.1981 passed by the 2nd
Addl. Sessions Judge, Jhansi in S.T. No. 9
of 1980 (State Vs. Brishshbhan and
others), whereby the appellants have been
convicted and sentenced to undergo
rigorous imprisonment for two years
under section 147 IPC, two years rigorous
imprisonment under section 353 read with
section 149 IPC, five years rigorous
imprisonment under section 307 read with
section 149 IPC and three years rigorous
imprisonment under section 225 IPC. The
appellant Harprasad has been further
convicted and sentenced to undergo
rigorous imprisonment for two years
under section 324 IPC.

3. After admission of the appeal, the
record of session trial no. 9 of 1980 was
summoned from the Sessions Judge,
Jhansi. In response to the letter issued by
the office for sending the lower court
record, it was reported by the District
Judge, Jhansi vide his letter no. 332/XV
dated 27.12.2001 that record of session
trial has been weeded out on 06.11.1992
and original judgement only is available
in the record. Thereafter, direction was
issued to the Sessions Judge, Jhansi to
reconstruct the record. In response to the
letter issued in this regard, the Sessions
Judge, Jhansi vide letter no. 1758/XV
dated 15.09.2007 has reported that
reconstruction of the record is not
possible. Since the papers of Session trial
are not available, hence after a gap of
about 29 years, retrial of the accused
persons is also not possible.

4. Placing reliance on State of U.P.
Vs. Abhay Raj Singh and another (2004
(50) ACC 591), it is submitted by learned
counsel for the appellants that for want of
lower court record, the appeal can not be
heard on merit and hence, the appellants
are liable to be acquitted. It is also
submitted by learned counsel that after a
gap of about twenty nine years, retrial of
the accused persons is also not possible,
because no vital paper of the case is
available and hence, no useful purpose
would be served to direct retrial of the
appellants.

5. On the other hand the learned
AGA drawing my attention towards Raj
Narain Pandey Vs. State 2(010 (1) ADJ
53), has submitted that this court can
decide the appeal on merit on the basis of
the certified copy of the judgement, as has
been done by another Bench of this Court
in aforesaid case.
248 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

6. I have given my thoughtful
consideration to the rival submissions
made by the parties counsel. It is true that
another Bench of this Court in the case of
Raj Narain Pandey (Supra) has decided
the appeal on merit in the absence of
lower court record on the basis of the
impugned judgement only, but in my
considered opinion, the appeal can not be
decided on merit in the absence of lower
court record. Unless the evidence is
available for perusal, in my opinion, the
appeal can not be decided on merit merely
on the basis of the lower court judgement,
as evidence is essentially required to
consider the merit of the impugned
judgement and merely on the basis of the
said judgement, no order on merit can be
passed in the appeal.

7. From the report made by the
Sessions Judge, Jhansi, this fact is borne
out that the record of Session Trial No. 9
of 1980 was weeded out in the year 1992
and original judgement only is available
in the file. From the report dated
15.09.2007 of the Sessions Judge, Jhansi,
this
fact
is
also
borne
out
that
reconstruction of the record is not
possible. I agree with the submission of
the learned counsel for the appellant that
no useful purpose would be served after a
gap of about twenty nine years to direct
retrial of the accused persons, as no paper
of the case is available. Therefore, having
regard to the observations made by the
Hon'ble Apex Court in the case of State of
U.P. Vs. Abhay Raj Singh (supra) there is
no alternative except to acquit the
appellants, as hearing of the appeal in
accordance with the arrangement made in
section 386 Cr.P.C.can not be made and
retrial also is not possible.

8. Consequently, the appeal is
allowed. The impugned judgement and
order are set aside and the surviving
appellants-accused are hereby acquitted of
the offences with which they have been
charged for want of trial court record and
there being no possibility of retrial.

9. The appellants-accused are on
bail. They need not to surrender. Their
personal and bail bonds are cancelled and
the sureties are discharged.

10. Office is directed to send a copy
of this judgement to the trial court
concerned for information.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 3960 of 2010

Raj Nath Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.
226Cancellation of appointment-petitioner
was appointed as Collection Amin in the
year 1976-confirmed on the said post in
1977-after 33 years-complaint made
about lack of qualification-petitioner
from
very
beginning
disclosed
his
qualification as High School-admittedly
passed
Intermediate
subsequently
certainly could not be appointed initially
due to lack of requisite qualification-but
considering long period of working-