# Shri Ram Singh v. State

- **Citation:** (2024) 9 ILRA 285
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-09
- **Case number:** Criminal Appeal No. 2616 of 1982
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-ram-singh-v-state-52585
- **Pages:** 5

## Headnote

(A) Criminal Law - Appeal in Absence of
Trial Court Record - Indian Penal Code,
1860 - Sections 302 and 201 - If the
substantial portion of trial court record is
not available before the Appellate Court -
an endeavour should be made firstly for
the reconstruction of the record and if
only reconstruction is not possible to
facilitate the High Court to hear and
dispose of the appeal, then possibility
should be looked into for the retrial of the
case and if due to the loss of vital and
basic records of the trial court retrial and
fresh adjudication of the matter is not
possible, then in that case the impugned
judgment
and
order
should
not
be
permitted to operate and the matter shall
stand closed. (Para -12)

Appellant was convicted in 1982 - Trial court
record was destroyed /weeded out , except for
the
impugned
judgment
and
order
-
Reconstruction of the record was not possible -
Retrial was also not feasible due to the loss of
vital records - appeal was pending for 42 years -
question involved - If the original record of the
trial court is not available before the Appellate
Court, what legal consequence would ensue -
High Court relied on precedents to decide the
case. (Para - 1 to 7)

HELD: - Nothing remains in appeal and on
account of the lack of vital and important basic
records, conviction order cannot be sustained.
Court has no other alternative but to allow the
appeal and set-aside conviction and sentence of
appellant and to acquit him. Conviction and
sentence of appellant, set-aside. (Para -14,15)
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal allowed. (E-7)

List of Cases cited:

## Text

9 All. Shri Ram Singh Vs. State
285
the matter of opportunity and production of
the detenue, and secondly, the Special
Court having failed to apply its mind on the
pending
application
granted
judicial
remand on 02.06.2023 upto 05.06.2023
without validation of extension of time to
complete the investigation. This is a clear
position of fact in the case at hand for
which the benefit which had accrued to the
appellant cannot be unsettled in view of the
reasoning as has been recorded by my
esteemed brother exhaustively in the
judgment. Be it noted that right to personal
liberty can only be curtailed by following
due procedure under law. The investigating
agency is obliged to stand on its toes in the
matter of concluding investigation and
must
remain
vigilant
to
follow
the
prescribed procedure, deviation whereof, it
is well settled would not come to their
rescue simply on the ground of procedural
lapse. To be more clear it can be aptly said
that right to life & personal liberty can only
be confined by following due procedure but
it cannot be taken away.

(41) In the circumstances of the
case, this Court would caution the Special
Courts to remain careful in future on any
such exigency. The administration of
justice and any dereliction of duty in the
matter of adjudication of such valuable
rights cannot be taken a lenient view in
ordinary course.

(42) In the result, I concur with the
relief granted in favour of the applicantappellant for the cumulative reasons
recorded as above.
----------
(2024) 9 ILRA 285
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2024

BEFORE
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 2616 of 1982

Shri Ram Singh ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
G.P. Dixit, R.K. Kanaujiya, Swetash Agarwal

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - Appeal in Absence of
Trial Court Record - Indian Penal Code,
1860 - Sections 302 and 201 - If the
substantial portion of trial court record is
not available before the Appellate Court -
an endeavour should be made firstly for
the reconstruction of the record and if
only reconstruction is not possible to
facilitate the High Court to hear and
dispose of the appeal, then possibility
should be looked into for the retrial of the
case and if due to the loss of vital and
basic records of the trial court retrial and
fresh adjudication of the matter is not
possible, then in that case the impugned
judgment
and
order
should
not
be
permitted to operate and the matter shall
stand closed. (Para -12)

Appellant was convicted in 1982 - Trial court
record was destroyed /weeded out , except for
the
impugned
judgment
and
order
-
Reconstruction of the record was not possible -
Retrial was also not feasible due to the loss of
vital records - appeal was pending for 42 years -
question involved - If the original record of the
trial court is not available before the Appellate
Court, what legal consequence would ensue -
High Court relied on precedents to decide the
case. (Para - 1 to 7)

HELD: - Nothing remains in appeal and on
account of the lack of vital and important basic
records, conviction order cannot be sustained.
Court has no other alternative but to allow the
appeal and set-aside conviction and sentence of
appellant and to acquit him. Conviction and
sentence of appellant, set-aside. (Para -14,15)
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal allowed. (E-7)

List of Cases cited:
1. Brahmanand Shukla Vs St. of U.P. , 2010 (5)
ADJ 158 (D.B.)
2. St. of U.P. Vs Subedar & ors., Govt. Appeal
No.2528 of 1987
3. St. of U.P. Vs Abhai Raj Singh & anr. [2004
(2) JIC 337 (SC)]
4. Brahmanand Shukla Vs St. of U.P. [LAWS
(ALL)-2010-4-14]
5. Hari Ram Vs St., Crl. Appeal No. 1239 of 1982
6. Raj Kumar Vs St. of U.P., Crl. Appeal No.29 of
1989

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. This criminal appeal has been
preferred by the appellant - Shri Ram Singh
against the judgement and order dated
30.09.1982 passed by Session Judge, Ballia
in Session Trial No.37 of 1982 (State Vs.
Shri Ram Singh and another) under Section
302/201 IPC, Police Station Garwar,
District Ballia convicting and sentencing
the appellant for the offence under section
201 IPC to undergo 4 years rigorous
imprisonment.

2. Heard Sri R.K. Kanaujiya, learned
counsel for the appellant as well as learned
A.G.A. for the State and perused the
record.

3. A pertinent question involved in
this appeal is as to if the original record of
the trial court is not available before the
Appellate Court, what legal consequence
would ensue.

4. Learned counsel for the appellant
has prayed for acquittal of the sole
surviving appellant Shri Ram Singh, as the
entire record (except the original judgment
and order of the trial court) of this case has
been weeded out as per report of District
Judge, Ballia and now hearing of this
Appeal is not possible for want of record.
The present appeal pertains to year 1982. In
view
of
all
these
facts
particularly
considering the fact that this appeal is
pending for the last 42 years, it appears
expedient in the interest of justice that this
appeal may be decided finally.

5. A perusal of the record reveals that
complete trial court record was summoned,
but only a part of the record was sent by the
District Judge, Ballia which includes only
impugned judgment and order. No other
document is available on record to proceed
with the present appeal.

6. It further reveals from the perusal
of the record that except the impugned
judgment and order, rest of the record has
been destroyed / weeded out. This Court
vide order dated 8.8.2024 called for the
report from the court concerned as to
whether the reconstruction of the trial court
record or retrial pertaining to the present
case is possible or not. In compliance
thereof, a report dated 28.8.2024 sent by
the District Judge, Ballia was received
wherein
it
was
submitted
that
reconstruction of the trial court record of
the present case is not possible and due to
non-reconstruction of the trial court record,
retrial of this case is also not possible.

7. In the similar circumstances, a
Division Bench of this Court dealt with the
matter in Brahmanand Shukla Vs. State
of U.P. reported in 2010 (5) ADJ 158
9 All. Shri Ram Singh Vs. State
287
(D.B.). In the said matter, it was observed
that -

"In the present case, as we have
mentioned in the earlier part of the judgment
only a copy of the trial court's judgment is
available and no other documents like FIR,
post mortem report, copies of the documents
which had been filed by the prosecution and
were exhibited during trial, the statement of
the witnesses recorded under Section 161
Cr.P.C. are available despite various attempts
to reconstruct the record. The incident is of
the year 1979 i.e. the incident took place
about 30 years back. In these circumstances,
no fruitful purpose would be served by
ordering re-trial as the same cannot be
conducted at all in absence of these
documents.

In
the
light
of
the
above
discussions and the circumstances mentioned
above, we have no other alternative but to
allow the appeal, set aside the conviction and
sentence of the appellant and to acquit him.

The appeal is allowed and the
conviction and sentence of the appellant as
recorded by the trial court is set aside and the
appellant is acquitted of the charge levelled
against him. His sureties and personal bonds
are discharged.

Let a copy of this judgment be
certified to the trial court for its intimation."

8. Subsequently the issue was again
raised before the Division Bench of this
Court in Government Appeal No.2528 of
1987, State of U.P. Vs. Subedar and
others, which was an acquittal appeal and
the Division Bench in the aforesaid matter
found which is extracted here in below -

"The incident in the present case
is of the year 1986 almost 29 years ago.
The judgment of the trial court is of the
year 1987. The appeal is pending for the
last 29 years. In absence of the record the
direction for retrial would be of no purpose
inasmuch as, the FIR, inquest report, the
injury report, the postmortem report, site
plan and other recovery memos are not
available and as such nothing can be
proved by directing retrial. Further retrial
after a lapse of such a long time would also
not serve the ends of justice, inasmuch as,
requiring the witnesses to depose about the
incident which took place 29 years ago,
their memory would be falling and they
would not be in a position to give an
accurate account of the incident.

For the above reasons, we are not
inclined to issue any direction for retrial. In
such circumstances, we relying upon the
judgment of the Apex Court in the case of
State of U.P. Vs. Abhai Raj Singh and
another [2004 (2) JIC 337 (SC)] and
Division Bench judgment of this Court in
the case of Brahmanand Shukla Vs. State
of
U.P.
[LAWS
(ALL)-2010-4-14],
proceed to decide the appeals accordingly.

The only option that remains with
us is to dismiss the Government Appeal.

Accordingly,
the
Government
Appeal is dismissed."

9. It is notable that the law laid down
in Brahmanand Shukla (supra) case was
also taken into account by the Division
Bench in the judgment and order passed in
Government Appeal No.2528 of 1987
(supra) and the law promulgated by the
Hon'ble Apex Court in the matter of State
of U.P. Vs. Abhai Raj Singh and Anr.
(supra) establishing a principle on the
subject where substantial portion of record
was not available and it was observed like
this -

"We, therefore, set aside the order
of the High Court and remit the matter back
for fresh consideration. It is to be noted at
288 INDIAN LAW REPORTS ALLAHABAD SERIES
this juncture that one of the respondents i.e.
Om Pal has died during the pendency of the
appeal before this Court. 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
re- construction 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
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.
The
appeals
are
accordingly
disposed of."

10. The same principle of law echoes
in a plethora of decisions of the Hon'ble
Supreme Court and this Court as well, such
as Hari Ram Vs. State, Criminal Appeal
No. 1239 of 1982 (date of decision
10.5.2016) and Raj Kumar Vs. State of
U.P., Criminal Appeal No.29 of 1989
(delivered on 25.11.2020)

11. The judgment of the Hon'ble
Supreme Court was also considered in
Government Appeal No.2528 of 1987
(supra).

12. The dictum of law, which flows
from the above is that if the substantial
portion of trial court record is not available
before the Appellate Court, an endeavour
should
be
made
firstly
for
the
reconstruction of the record and if only
reconstruction is not possible to facilitate
the High Court to hear and dispose of the
appeal, then possibility should be looked
into for the retrial of the case and if due to
the loss of vital and basic records of the
trial court retrial and fresh adjudication of
the matter is not possible, then in that case
the impugned judgment and order should
not be permitted to operate and the matter
shall stand closed.

13. In the present case, as admitted by
the
prosecution
itself,
since
the
reconstruction of the record is not possible
and no other record except the impugned
judgment and order of the trial court is
available, as a natural consequence thereof,
retrial of the case is also not possible.

14. Hence, in view of the legal
principle enumerated in the aforesaid
judgments, in my view, nothing remains in
this appeal and on account of nonavailability of the vital and important basic
records, the conviction order cannot be
sustained. This Court has no other
alternative in these circumstances but to
allow
the
appeal
and
set-aside
the
conviction and sentence of the appellant
and to acquit him.

15. Resultantly, the appeal is allowed
and the conviction and sentence of the
appellant, as recorded by the trial court
vide impugned judgement and order dated
30.09.1982, is set-aside and the sole
surviving appellant Shri Ram Singh is
acquitted of the charge under Section 201
IPC levelled against him. His sureties and
9 All. Jitendra Kumar Lakhmani Vs. State of U.P. & Anr.
289
personal
bonds
are
ordered
to
be
discharged.

16. All pending applications shall also
stand disposed of accordingly.

17. Let a copy of this judgment be
certified to the trial court for intimation and
necessary action.
----------
(2024) 9 ILRA 289
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.09.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Criminal Appeal No. 3030 of 2024

Jitendra Kumar Lakhmani ...Appellant
Versus
State Of U.P & Anr. ...Respondents

Counsel for the Appellant:
In Person

Counsel for the RespondentS:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 341 (Now
Section 380 of BNSS, 2023) - Family Court
Act, 1984 - Section 19 - Appellant filed
instant appeal against order by which
application u/s 340, Cr.PC rejected -
Maintainability of appeal - The order
which was challenged was not an order
passed on basis of consent between
parties nor an order passed under Chapter
IX
of
Code,
meaning
thereby
that
provisions of Section 19(2) of Act, 1984
would have no applicability
- Thus,
provisions of Section 19 (1) of Act, 1984
would be applicable. (Para 10)

Only remedy available to appellant is to
challenge impugned order by filing of
appeal u/s 19(1) of Act, 1984 and appeal
filed under provisions of Code or BNSS
would not be maintainable keeping in
view the non-obstante clause as per
Section 19(1) of Act, 1984 and said Act,
1984 being a special Act. (Para 13)

Appeal dismissed. (E-13)

List of Cases cited:

1. Kiran Bala Srivastava Vs Jai Prakash
Srivastava, MANU/UP/2771/2004

2. Shah Babulal Khimji Vs Jayaben - AIR 1981
SC 1786

(Delivered by Hon'ble Abdul Moin, J.)

1. By means of the instant appeal filed
under Section 380 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (earlier Section 341 of
the Criminal Procedure Code, 1973 in short
'Code, 1973'), the appellant seeks to challenge
the order dated 24.07.2024 passed by learned
Family Court whereby the application filed by
the appellant under Section 340 of the Code,
1973 has been rejected.

2. A preliminary objection has been
taken by Sri Piyush Kumar Singh, learned
AGA appearing on behalf of respondent
no.1, that considering the provisions of
Section 19 of the Family Court Act, 1984
(hereinafter referred to as the 'Act, 1984'),
the appellant will have to file an appeal
under the provisions of the Act, 1984 itself
and
instant
appeal
would
not
be
maintainable.

3. Learned AGA argues that Section
19 of the Act, 1984 clearly provides for
filing of an appeal and as such the instant
appeal filed under the provisions of the
Code, 1973 would not be maintainable.

4.

Heard
Sri
Jitendra
Kumar
Lakhmani, the appellant, who appeared in