# Piarey Lal & others (In Jail) v. State of Uttar Pradesh

- **Citation:** (2010) 1 ILRA 26
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-06
- **Case number:** Criminal Appeal No. 2105 of 1979
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/piarey-lal-others-in-jail-v-state-of-uttar-pradesh-41580
- **Pages:** 6

## Headnote

Code
of
Criminal
Procedure-Section384/385/386---Disposal
of
criminal
appeal against conviction-Trial Court
record
already
weeded
out-session
judge-reported
impossibility
of
reconstruction of record-direction for retrial-infacts and circumstance of the
case-futile-as
occurrence
took
place
before 34 years everything has been
changed-connection
under
section
325/34 I.P.C. in view of law laid down by
apex court- except set-a-side conviction
and to allow the appeal on option before
the court.

Held: Para 18

So far So far as direction of retrial is
concerned, in view of the fact that total
documentary as well as other evidences
have been lost directing for re trial will
be very unfair to the accused persons as
they will never be able to convince the
court that allegations levelled by the
prosecution and the deposition by it's
witnesses are not true. The spot scene
must
have
been
altered
by
now.
Resultantly in consonance with above
exposition of law by the Supreme Court
there is no option left but to allow this
appeal and set aside the impugned
conviction and sentence imposed on the
appellant.
Case law discussed:
2004 SCC (Cr) 901, AIR 1996 SC 2439, AIR
1999 SC 3850, State of U.P. Versus Shankar
1154, AIR 1999 SC 3535, AIR 2005 SC 1250;
AIR 2005 SC 1248.

## Text

26 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
date of receipt of certified copy of this
order. In case the cost is not paid within
the aforesaid time, the same shall be
recovered as arrears of land revenue by
issuing recovery certificate by Registrar
General of this Court. The cost given to
the petitioner by the State Government
shall be recoverable from the salary of the
erring officers.

26. The writ petition is, therefore,
allowed and the impugned order dated
13.9.2007 is set aside. The petitioner shall
be reinstated into service forthwith. All
the consequential benefits shall also be
given to the petitioner forthwith.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2010.

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Appeal No. 2105 of 1979

Piarey Lal & others ...Appellants (In Jail)
Versus
State of Uttar Pradesh ...Respondent

Counsel for the Appellant:
Sri S. P. Kumar
Sri A.N.Mishra
Sri Amit Saxena,

Counsel for the Opposite Party:
A.G.A.

Code
of
Criminal
Procedure-Section384/385/386---Disposal
of
criminal
appeal against conviction-Trial Court
record
already
weeded
out-session
judge-reported
impossibility
of
reconstruction of record-direction for retrial-infacts and circumstance of the
case-futile-as
occurrence
took
place
before 34 years everything has been
changed-connection
under
section
325/34 I.P.C. in view of law laid down by
apex court- except set-a-side conviction
and to allow the appeal on option before
the court.

Held: Para 18

So far So far as direction of retrial is
concerned, in view of the fact that total
documentary as well as other evidences
have been lost directing for re trial will
be very unfair to the accused persons as
they will never be able to convince the
court that allegations levelled by the
prosecution and the deposition by it's
witnesses are not true. The spot scene
must
have
been
altered
by
now.
Resultantly in consonance with above
exposition of law by the Supreme Court
there is no option left but to allow this
appeal and set aside the impugned
conviction and sentence imposed on the
appellant.
Case law discussed:
2004 SCC (Cr) 901, AIR 1996 SC 2439, AIR
1999 SC 3850, State of U.P. Versus Shankar
1154, AIR 1999 SC 3535, AIR 2005 SC 1250;
AIR 2005 SC 1248.

(Delivered by Hon'ble Vinod Prasad, J.)

1 In this appeal four sibling brothers
Piyare, Hiralal, Puran Lal and Sitaram,
have challenged their conviction under
section 325/34 IPC and imposed sentence
of five years R.I. Recorded by IIIrd Addl
Session Judge, Pilibhit in S.T. No. 109 of
1977, State Vs. Piarey Lal and others,
vide his impugned judgement and order
dated 6.7.1979.

2. In bird's eye view, prosecution
allegations against four appellants are that
on
30.4.1976
at
5.00
p.m.
They
committed murder of Gendan Lal by a
blunt object near a water channel.
Information about the occurrence was
lodged by Lalta Prasad at the police
station Jahahanbad on the same day at
1 All] Piarey Lal and others V. State of Uttar Pradesh
27
11.00 p.m. Covering a distance of four
Kms. Autopsy on the dead body was
conducted by Dr. R.S. Sharma, PW-5,
who had proved his post mortem
examination report Ext-ka Doctor has
noted three anti mortem injuries on the
corpse of the deceased. The FIR of the
informant was registered as Ext. ka-1 and
corresponding GD entry is Ext. Ka-2 S.I.
Babu Singh commenced the investigation
of the crime who got the inquest on the
dead body conducted and got prepared the
inquest report and other papers Ext.Ka-3
to Ka-5 and thereafter sealing it, the same
was dispatched to the mortuary through
constable Sri Krishnal Mishra and Naubat
Singh for the purpose of autopsy. Blood
stained earth and articles were recovered
vide Ext. Ka-6. I. O. also recovered the
weapon of assault and the rope material
EXT. 2 and 3 and prepared their recovery
memo Ext. Ka-7. During investigation I.
O. had also made spot inspection and had
prepared site plan Ext. Ka-8. Completing
investigation he has charge sheeted
accused appellants vide Ext. Ka-9.

3. Submission of charge sheet
resulted in summoning of all the accused
persons by the court of the Magistrate,
who finding their case triable by court of
Session's committed it to Sessions Court
for trial.

4. During trial, in order to stablish
appellants guilty prosecution examined in
all five witnesses of facts. S.I. Bhagwat
Singh, PW-3, S.I. Babu Singh PW-4 and
Dr. R.S. Sharma, PW-5 were formal
witnessed.

5. On the evidence led before it,
after
summation
of
facts
and
circumstances of the case trial court vide
his impugned order dated 6.7.1979
convicted all the appellants under section
325/34 IPC and imposed sentence of five
years
R.I.
Hence
instant
appeal
challenging that judgement and order by
the appellants.

6. This appeal was admitted on
12.7.79 and trial court record was
requisitioned for disposal of this appeal.
However order sheet of the appeal
indicate that Sessions Judge, Pilibhit had
informed on 6.8.03 that trial court record
has already been weeded out on 17.3.99.
In such a situation this court ordered for
reconstruction of the record on 3.9.2003
with a period of three months.

7. In pursuance of the direction by
this
court,
District
Judge,
Pilibhit
endeavoured for the reconstruction of the
record and had appointed addl. Sessions
Judge/FTC No.3, Pilibhit, Sri S.S. Lal an
enquiring officer to inquire into the
matter. The inquiring Officer vide his
report
dated
18.9.2004
found
that
reconstruction of the record of the
concerned sessions trial no. 109 of 1977,
State Vs. Piarey Lal and other is
impossible and therefore, in turn, Sessions
Judge, Pilibhit also reported to this court
on 21.8.09 that reconstruction of the
record is not possible. After persuing both
the reports I am of the opinion that any
further
direction
or
endeavour
for
reconstruction of the record will onlybe a
futile exercise without any fruitful result.

8. On the merits of the matter as can
be perceived through the impugned
judgement and order it transpires that
according to the prosecution allegation
because of grazing of buffaloes an
altercation ensued between the deceased
Gendan Lal and Piyarey Lal appellant. At
the instigation of Piyarey Lal all other
28 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
appellants
reached
the
spot
and
belaboured Gendan Lal near a water
channel, who after sustaining serious
injuries squatted on the ground and the
accused persons then retreated from the
spot. Informant and many co-villagers had
witnessed this incident. Lalta Prasad,
informant, thereafter, brought his family
members to the scene of the assault and
leaving the injured under their supervision
went to search village Chaukidar whom
he found in village Kharua. Accompanied
with the village Chaukidar Lalta Prasad
went to the police station Jahanabad,
where
he
lodged
his
written
first
information report, which was recorded at
11.00 p.m.

9. Dr. R.S. Sharma, PW-5 who had
conducted autopsy on the dead body of
the deceased on 1.5.1976 on the internal
examination had found parietal and
temporal bone fractured, membrane were
reptured and brain matter was coming out
of the wound. Semi digested food
material was present in the large intestine.
Following ante-mortem injuries were
detected on the dead body by the doctor:-

"In
doctor's
opinion
cause
of
deceased
death
was
shock
and
haemorrhage as a result of sustaining
injury."

10. All the accused had denied
prosecution allegations and incriminating
circumstance appearing against them in
the
prosecution
evidence
in
their
statements under section 313 CrP.C.

11. The trial judge after going
through the evidences came to the
conclusion that the charge under section
302/34 is not established, but the
appellants are guilty for offences under
section 325/34 and therefore convicted
them for the said charge and sentenced
them as noted in the opening paragraph of
this order. Hence this appeal.

12. When the appeal was called out,
nobody appeared for the appellants to
support the appeal and therefore, Sri Amit
Saxena, advocate was appointed amicus
curie to argue the appeal.

13. Sri Saxena submitted that in the
absence of the lower court record when
reconstruction is also not possible the
appeal of the appellants cannot be decided
on
merits,
He
submitted
that
the
procedure
prescribed
under
section
385/386 Cr.P.C. has to be observed in
deciding an appeal on merits and the said
procedure lays down that if an appeal is
not dismissed in-limine at the stage of
admission then a date has to be fixed for
hearing of the same after noticing both the
parties. On the date so fixed for hearing of
the same after noticing both the parties.
On the date so fixed record of the case has
to be perused and then only the appeal can
be decided on merits after hearing
appeallant or his pleader in support of the
appeal, In support of his contention Sri
Saxena relied upon Sections 384, 385 and
386 of the Code(Cr.P.C.) which are
extracte below for a ready reference:-

384. Summary dismissal of appeal
(1) If upon examining the petition of the
appeal and copy of the judgment received
under section 382 or section 383, the
Appellate Court considers that there is no
sufficient ground for interfering, it may
dismiss the appeal summarily:

Provided that-
(a) no appeal presented under Section
382 shall be dismissed unless the
appellant or his pleader has had a
1 All] Piarey Lal and others V. State of Uttar Pradesh
29
reasonable opportunity of being heard in
support of the same;
(b) no appeal presented under Section
383 shall be dismissed except after giving
the appeallant a reasonable opportunity
of being heard in support of the same,
unless the Appellate court considers that
the appeal is frivolous or that the
production of the accused in custody
before the Court would involve such
inconvenience
as
would
be
disproportionate in the circumstances of
the case;
(c) no appeal presented under Section
383 shall be dismissed summarily until
the period allowed for preferring such
appeal has expired.
(2)...................
(3) Where the appellate court dismissing
an appeal under this section is a Court of
Sessions
or
of
the
Chief
Judicial
Magistrate, it shall record its reasons for
doing so.
(4) Where an appeal presented under
section 383 has been dismissed summarily
under this section and the Appellate Court
finds that another petition of appeal duly
presented under section 382 on behalf of
the
same
appellant
has
not
been
considered by it, that Court may,
notwithstanding anything contained in
Section 393, it satisfied that if is
necessary in the interest of justice so to
do, hear and dispose of such appeal in
accordance with law.
385. Procedure for hearing appeals not
dismissed summarily
(1) if the Appellate Court does not
dismiss the appeal, it shall cause notice of
the time and place at which such appeal
will be heard to be given-
to the appellant or his pleader;
to such officer as the State Government
may appoint in this behalf;
if the appeal is from a judgement of
conviction in a case instituted upon
complaint, to the complainant;
if the appeal is under Section 377 or
Section 378, to the accused and shall also
furnish such officer, complainant and
accused with a gopy of the grounds of
appeal.
(2)..................................
(3)..................................

386. Powers of the Appellate Court- After
persuing such record and hearing the
appellant or his pleader, if he appears,
and the Public Prosecutor, if he appears,
and in case of an appeal under Section
377 or Section 378, the accused, if he
appears, the Appellate Court may, if
considers that there is no sufficient
ground for interfering, dismiss the appeal,
or may-
(a) in an appeal from an order of
acquittal, reverse such order and direct
that further inquiry be made, or that the
accused be re-tried or committed for trial,
as the case may be, or find him guilty and
or committed for trial, as the case may be,
or find him guilty and pass sentence on
him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and
acquit or discharge the accused, or order
him to be re-tired by a Court of competent
jurisdiction subordinate to such Appellate
Court or committed for trial, or
(ii) alter the finding, maintaining the
sentence, or
(iii) with or without altering the finding,
alter the nature or the extent, or the
nature and extent, of the sentence, but not
so as to enhance the same;
(c) in an appeal for enhancement o
sentence-
(i) reverse the finding and sentence and
acquit or discharge the accused or order
30 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
him to be re-tried by a Court competent to
try the offence, or
(ii) alter the finding maintaining the
sentence, or
(iii) with or without altering the finding,
alter the nature or the extent, or the
nature and extent, of the sentence, so as to
enhance or reduce the same;
(d) in an appeal from any other order,
alter or reverse such order;
(e)
make
any
amendment
or
any
consequential or incidental order that
may be just or proper."

14. Thus what has been enacted in
the statute is that no appeal can be
decided without perusal of the record.
Ecen if the appeal has to be dismissed
summarily,
the
perusa
of
the
consideration thereof is indispensable as
is laid down under section 384 Cr.P.C.
Under section 385 Cr.P.C. procedure
which has to be followed if the appeal is
not dismissed summarily is provided
according to which a notice is required to
be given mentioning time and place of
hearing of the appeal to the appellant, the
Government
Advocate
and
to
the
complainant, Subsequent section #86
Cr.P.C. provides that after perusal of the
record and hearing the appellant or his
pleader
and
the
public
prosecutor
appellate court may pass judgement in the
appeal. Under such a procedure when
scan the present appeal I find that perusal
of record is not possible as the same has
already been weeded out. Reconstruction
of the record after a lapse of more that
three decades of the incident is also an
impossibility and the court below has
shown
it's
inability
for
such
reconstruction. In such a situation it has
been observed by the apex court in the
case of State of U.P. Versus Abhai Raj
Singh; 2004 SCC(Cr) 901 as follows:-

"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 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 Session Court is
also rendered impossible due to loss lf
vitality important basic records- in that
case and situation only, the direction
given in the impugned judgment shall
operate and that matter shall stand
closed."

15. Earlier also it has been held that
in absence of record appeal has to be
decided by acquitting the accused. For a
ready reference see Bani Singh versus
State of U.P.: AIR1996 SC 2439; Rishi
Nandan Pandit versus State of Bihar:
AIR 1999 SC 3850; State of U.P. versus
Shankar 1154; State of Tamil Nadu
versus Rajendran: AIR 1999 SC 3535;
State of U.P. Versus Kishan AIR 2005
SC 1250; State of U.P. Versus Pappu @
Yunus: AIR 2005 SC 1248.

16. Mr. Saxena submits that
directing for re-trial of the whole case
while the incident has occurred 34 Years
ago, will not be a justified exercise as all
the evidences of the occurrence must have
lost its efficacy. He further submits that
statement under section 161 Cr.P.C. as
well as other record including original
post mortem examination report, inquest
1 All] Dr. Raj Kumari Singh and another V. State of U.P. and others
31
report and other documents also must
have been weeded out and therefore,
directing for re-trial for the case will only
amount to the harassment of the parties
without any fruitful results.

17. Learned AGA, after having gone
through the report of the Session Judge
also submits that on the peculiar facts of
the case, directing for retrial will not be
very material but he contended that the
alteration of the offence by the trial judge
was not very justified.

18.

Having
given
anxious
consideration
to
all
the
attending
circumstances I am of the view that the
appeal preferred by the accused persons
against their conviction in this court is
their first appeal. The Apex Court has
held that the first appeal is a continuation
of trial. Section 384 to and 386 Cr.P.C.
leaves no room for doubt that for deciding
an appeal on merits perusal of the trial
court record is sine Qua non to critically
appreciate evidences to separate the
grains from the chaff. It is incumbent
upon the appellate court to look into the
record independently than what has been
stated by the trial court and come to it's
own conclusions which not possible in
this appeal. So far So far as direction of
retrial is concerned, in view of the fact
that total documentary as well as other
evidences have been lost directing for re
trial will be very unfair to the accused
persons as they will never be able to
convince
the
court
that
allegations
levelled by the prosecution and the
deposition by it's witnesses are not true.
The spot scene must have been altered by
now. Resultantly in consonance with
above exposition of law by the Supreme
Court there is no option left but to allow
this appeal and set aside the impugned
conviction and sentence imposed on the
appellant.

19. In view of the above, this appeal
is allowed. The conviction and sentence
of the accused appellants are hereby set
aside and they are acquitted charged
under section 325/34 IPC. All the
appellants are on bail. They need not
surrender. Their bail bonds are cancelled
and sureties discharged.

20. A copy of judgement is directed
to transmit to the trial court for its
intimation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2010

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No. 2682 of 2010

Dr. Raj Kumari Singh and another

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

Counsel for the Petitioner:
Sri R.P. Dubey

Counsel for Respondent:
C.S.C.

Constitution of India Art.-226-Petitioner
working as lecturer- opted Contributory
Pension Fund benefit-in view of G.O.
Dated 25.8.99 opted G.P.F. with pensioncan not be refused-option can be given
even prior one month to retirement.

Held: Para- 17

In our opinion, the petitioners in the
present Writ Petition, who exercised