# Jagat Singh & Anr v. State Of U.P - **Citation:** (2016) 3 ILRA 107 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-29 - **Bench:** Mrs. Ranjana Pandya - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagat-singh-anr-v-state-of-u-p-43500 - **Pages:** 4 ## Headnote CRIMINAL PROCEDURE CODE, 1973-S. 386-Appeal-Destruction of trial court record 108 INDIAN LAW REPORTS ALLAHABAD SERIES Order of retrial- where the original trial court record has been weeded out and despite all efforts the same cannot be reconstructed, the appellate court is empowered under Section 386 Cr.P.C. to order a retrial. However, such power is discretionary and must be exercised judiciously, keeping in view the facts and circumstances of each case. Reconstruction not possible - where the occurrence is more than three decades old, one of the accused has died during pendency of appeal, the surviving appellant is of advanced age, and copies of the F.I.R. and statements under Section 161 Cr.P.C. are not available, directing a retrial would cause serious prejudice to the accused and reduce the trial to a mere formality. Power of appellate court- absence of the original record renders it impossible for the appellate court to examine the legality, correctness and propriety of the conviction, as contradictions in witness statements cannot be pointed out and effective defence cannot be raised. Conviction set aside.- n such circumstances, where reconstruction of record is not possible and retrial would result in undue hardship and miscarriage of justice, the only appropriate course is to set aside the conviction and sentence. Judgment of conviction under Section 392 I.P.C. quashed Appeal allowed. List of Cases cited: ## Text 3 All. Jagat Singh & Anr. Vs State Of U.P. 107 cases may commit latches and negligence but their latches and negligence will not be sufficient to brush aside the proved occurrence. It is true that the testimony of interested and relative witness/ partisan witness is to be scrutinized with extra caution viz-a-viz with the attendant circumstances of the case and if the same is found to be consistent and clinching there is no reason to disbelieve the same and it is to be seen whether the incident is reasonably proved by the prosecution or not and if the incident alleged in the FIR stands proved beyond reasonable doubt by clinching testimony of prosecution witnesses then minor contradictions will not affect establishment of guilt of the accused persons. 38. We may conveniently sum up that the trial judge has also taken into consideration various aspect of the case and has appraised testimony of prosecution witnesses in right prospective and has rightly recorded finding of conviction and sentenced the appellants with life imprisonment which is minimum punishment provided for the offence in question. 39. We may conclude that the appeal is devoid of merit, consequently the appeal is dismissed. 40. Both the appellants Vinod and Bhika are on bail. Their personal bonds are cancelled and sureties are discharged. They be taken into custody forthwith to serve out remaining part of sentences imposed on them. 41. Let a copy of this judgment be certified to the concerned trial court for necessary compliance. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 29.02.2016 BEFORE THE HON'BLE MRS. RANJANA PANDYA, J. Criminal Appeal No. - 226 of 1985 Jagat Singh & Anr. ...Appellants Versus State Of U.P. ...Respondent Counsel for the Appellants: Umesh Chandra Misra,M.S. Rajpoot Counsel for the Respondent: A.G.A. CRIMINAL PROCEDURE CODE, 1973-S. 386-Appeal-Destruction of trial court record 108 INDIAN LAW REPORTS ALLAHABAD SERIES Order of retrial- where the original trial court record has been weeded out and despite all efforts the same cannot be reconstructed, the appellate court is empowered under Section 386 Cr.P.C. to order a retrial. However, such power is discretionary and must be exercised judiciously, keeping in view the facts and circumstances of each case. Reconstruction not possible - where the occurrence is more than three decades old, one of the accused has died during pendency of appeal, the surviving appellant is of advanced age, and copies of the F.I.R. and statements under Section 161 Cr.P.C. are not available, directing a retrial would cause serious prejudice to the accused and reduce the trial to a mere formality. Power of appellate court- absence of the original record renders it impossible for the appellate court to examine the legality, correctness and propriety of the conviction, as contradictions in witness statements cannot be pointed out and effective defence cannot be raised. Conviction set aside.- n such circumstances, where reconstruction of record is not possible and retrial would result in undue hardship and miscarriage of justice, the only appropriate course is to set aside the conviction and sentence. Judgment of conviction under Section 392 I.P.C. quashed Appeal allowed. List of Cases cited: 1. State of U.P. v. Shankar and Another, AIR 1962 SC 1154 2. Queen Empress v. Khirnat Singh, (1889) AWN 55; 3. Re Sevugaperuma and Others, AIR 1943 Mad 391; (Delivered by Hon'ble Mrs. Ranjana Pandya, J.) 1. Challenge in this appeal is to the judgement and order dated 16.1.1985 passed by Special Judge (Anti Dacoity), Etawah in Special Case No. 75 of 1984 (State Vs. Jagat Singh and Another), under Section 392 I.P.C., Police Station-Bela, District-Etawah by which accused-appellants Jagat Singh and Salamat Ullah were found guilty under Section 392 I.P.C. and each were sentenced to two years rigorous imprisonment. 2. The brief facts of the case are that on 2.3.1981 complainant Kanhaiya Lal was coming back from market of village Yaqubpur after selling seeds and after purchasing some clothes. At about 6:00 p.m., when he reached near village Ghajapur, accused-appellants committed robbery. A ladies Dhoti, one pant, one cloth piece of shirt worth Rs. 100/-, one wrist watch worth Rs. 200/- and cash Rs. 205/- were looted from the complainant. Complaint raised alarm. On hearing hue and cry, the witnesses namely Chhote Lal, Man Singh and Daya Ram came to the spot, at which the accused-appellants fled away. Hence, the report was lodged. 3. Investigation of the matter was entrusted to the S.I. Amar Nath Shukla. The investigation ended into charge-sheet. 3 All. Jagat Singh & Anr. Vs State Of U.P. 109 4. After recording the evidence of the prosecution witness, the learned lower court passed the impugned judgement as specified in para 1 of the judgement. 5. I have heard the learned counsel for the parties, perused the lower court judgement. 6. The accused-appellant No. 1 Jagat Singh died during the pendency of this appeal, hence the appeal continued only as regard accused-appellant No. 2 Salamatullah @ Mithauri. 7. The trial record was summoned. Report of the District Judge, Etawah, revealed that the complete original record was weeded. As per the report of Additional District and Sessions Judge/Special Judge (D.A.A. Act), Etawah dated 3.2.2016, record of the original trial court could not be re-constructed, although notices were issued to the D.G.C. (Criminal), S.O. Bela, (District-Auraiya) and the complainant to supply copies of the record, if available but no copies were supplied, since it was a very old matter, and no record was available. The responsibility whether the record was weeded as per rules or not was being inquired into by the Inquiry Officer, deputed by the District Judge. 8. Be that as it may, it was finally decided that the record could not be reconstructed and there was nothing except the original judgement before this Court. The question would now arise as to what happens when reconstruction is not possible. Section 386 empowers the appellate court to order that the accused be committed for re-trial and this power is not circumscribed to cases exclusively triable by the court of Sessions as has been held in AIR 1962 SC Page 1154 (State of U.P. Vs. Shankar and Another). 9. 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 Vs. Khirnat Singh (1889 AWN 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 Sevugaperuma and Others (AIR 1943 (Madras) 391). The view has been reiterated by several High Courts as well. 10. Perusal of the judgement shows that the occurrence took place on 2.3.1981. The plea of the juvenility on behalf of the surviving sole appellant Salamat Ullah does not appear to have taken the fact remains that he was atleast 18 years of age at the time of incident. Presently the applicant is about 73 years old. Directing re-trial of the matter at this juncture would not be proper. 11. Besides, when the copies of the F.I.R. and statements of the witnesses recorded under Section 161 Cr.P.C. before trial judge are not available, contradictions cannot be pointed out. Apart from this a heavy strain would be put on the memory of the witnesses if at all they are alive, besides the accused will definitely be prejudiced who would be 110 INDIAN LAW REPORTS ALLAHABAD SERIES handicapped in establishing his defence and the re-trial would be reduced to mere formality entailing agony and hardship to the accused and the informant and witnesses too. 12. In the present matter all the possibilities have been exploited and even an inqury has been initiated to find out whether the record was weeded as per rules or no, thus, nothing more can be done, especially after 35 years of the occurrence. I am aware that if no action is taken in such matter it would encourage dubious persons and detractors of Justice by allowing undeserved premium to violators of law by acting hand in gloves with, those antisocial elements coming to hold sway, behind the screen, in the ordinary and normal course of justice. 13. But in the present case, nothing can be done in the matter and the matter shall needs closure, and the appeal deserves to allowed. Hence the impugned judgement of conviction and sentence dated 16.1.1985 passed by Special Judge (Anti Dacoity), Etawah in Special Case No. 75 of 1984 (State Vs. Jagat Singh and Another), under Section 392 I.P.C., Police Station-Bela, District-Etawah, is hereby set aside. 14. Accordingly, appeal is allowed. 15. Let a copy of this order be sent to the trial court concerned. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 26.02.2016 BEFORE THE HON'BLE ARVIND KUMAR TRIPATHI, J. THE HON'BLE ARVIND KUMAR MISHRA-I, J. Criminal Appeal No. - 944 of 1988 Fakira And Ors. ...Appellants Versus State Of U.P. ...Respondent Counsel for the Appellants: R.A. Mishra Counsel for the Respondent: A.G.A. PENAL CODE, 1860-Ss. 147, 148, 302, 307, 149-Murder-Common object Eye-witnesses related to deceased - mere relationship of the eye-witnesses with the deceased is not a ground to discard their testimony. Evidence of related witnesses, if found cogent, consistent and trustworthy, can form the basis of conviction, particularly when their presence at the place of occurrence is natural and stands corroborated by surrounding circumstances