# State of U.P v. Hirdai Narain & Ors

- **Citation:** (2024) 5 ILRA 1415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-03
- **Case number:** Government Appeal No. 511 of 1987
- **Bench:** Mrs. Sangeeta Chandra, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-hirdai-narain-ors-51927
- **Pages:** 5

## Headnote

Criminal Law-Indian Penal Code-1860Sections 307 r/w 34-The Code of Criminal
Procedure,1973-Section 385- Government
Appeal against the judgment by which the
accused-respondent has been acquitted by the
trial court-In the absence of any evidence the
respondents were ultimately acquitted- Entire
record of Sessions Trial weeded out and its
reconstruction is not possible-Appeal cannot be
decided in the absence of trial court record- No
paper relating to the case is available except the
impugned judgement, therefore possibility of
retrial at this stage, after a long gap of about 36
years since the occurrence of the incident
appears to be bleak.
Appeal dismissed. (E-15)

List of Cases cited:

## Text

5 All. State of U.P. Vs. Hirdai Narain & Ors.
1415

34. The writ petition is accordingly
dismissed.

35. A copy of this judgement be
transmitted to the Chairman, Bar Council of
Uttar Pradesh and office bearers of the High
Court
Bar Association, Allahabad
to
sensitize the learned advocates to uphold the
ethics of moral activism by employing
ethical
means,
even
in
challenging
circumstances- let's revatilized a tradition
we are known for.
----------
(2024) 5 ILRA 1415
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.05.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Government Appeal No. 511 of 1987

State of U.P. ...Appellant
Versus
Hirdai Narain & Ors. ...Respondents

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:
Pawan Kumar Tiwari, Pranjal Krishna

Criminal Law-Indian Penal Code-1860Sections 307 r/w 34-The Code of Criminal
Procedure,1973-Section 385- Government
Appeal against the judgment by which the
accused-respondent has been acquitted by the
trial court-In the absence of any evidence the
respondents were ultimately acquitted- Entire
record of Sessions Trial weeded out and its
reconstruction is not possible-Appeal cannot be
decided in the absence of trial court record- No
paper relating to the case is available except the
impugned judgement, therefore possibility of
retrial at this stage, after a long gap of about 36
years since the occurrence of the incident
appears to be bleak.
Appeal dismissed. (E-15)

List of Cases cited:

1. Shyam Deo Pandey Vs St. (1971) 1 SCC 855

2. Sita Ram & ors. Vs St. 1981 Cri. LJ 65

3. Pati Ram & anr. Vs St. of U.P. : 2010 Cri. LJ
2767

4. Chandrappa & ors. Vs St. of Karn., (2007) 4
SCC 415

(Delivered by Hon'ble Ajai Kumar
Srivastava-I, J.)

1. We have heard Ms. Meera
Tripathi, learned A.G.A. for the Stateappellant and have also perused the records
available before us.

2. By means of the present
government appeal, the State seeks to assail
the judgment and order dated 11.03.1987,
passed by the learned IXth Additional
Session Judge, Lucknow in Sessions Trial
Nos.472 of 1984, arising out of Crime
No.135 of 1984, under Section 307 I.P.C.,
Police
Station,
Alambagh,
District
Lucknow, whereby the learned trial Court
has acquitted the accused-respondents,
Phool Chand and Hirdaya Narain of the
charges under Sections 307 read with 34
I.P.C.

3. From a perusal of record, it
transpires that the instant government appeal
was filed against two respondents, namely,
Hirdaya Narain and Phool Chand. However,
the respondent, Phool Chand has died during
the pendency of this appeal. The instant
appeal in respect of respondent, Phool
Chand has already been abated vide order
dated 22.08.2022. Therefore, the appeal
survives only with regard to the respondent,
Hirdaya Narain.
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
4. The prosecution case, in short
conspectus, is that the informant, Sri Chinaji
Lal Badhani, was going home from his
office on 10.04.84 when he found 10
persons, who were ex-employees of Scooter
India Limited, staging a Dharna at the gate
of the factory after being dismissed. All the
ex-employees, including the accused Phool
Chand and Hirdai Narain, nourished grudge
towards the informant. Upon seeing the
informant alone, the accused persons, Phool
Chand and Hirdai Narain, assaulted the
informant with a Danda. The informant
sustained injuries on his left hand, right leg
and forehead.

5. On the basis of aforesaid written
report, Ext. Ka-1, a first information report
as Crime No.98 of 1980, under Sections
147, 148, 149 & 302 I.P.C. came to be
registered
against
all
the
accusedrespondents at Police Station, Jethwara,
District Pratapgarh.

6. From a perusal of the impugned
judgment and order dated 11.03.1987, it
appears that various opportunities were
afforded to the prosecution to adduce
evidence in support of its case. However, as
the prosecution failed to adduce any
evidence
in
support
of
its
case,
consequently, the learned trial Court closed
the opportunity of adducing evidence and
proceeded to pass the impugned judgment
and order dated 11.03.1987, whereby, the
respondents have been acquitted of all the
charges leveled against them as there was no
evidence against them.

7. On the face of it, we do not find
any perversity with the findings of the
learned trial Court. After affording a
reasonable opportunity to the prosecution
to adduce evidence in support of its case,
the trial court proceeded to decide
Sessions Trial No.472 of 1984. In the
absence of any evidence to support the
prosecution's case, the respondents were
ultimately acquitted vide judgment and
order dated 11.03.1987.

8. We notice that while admitting
the instant government appeal, the trial
court record was summoned. In this
regard, the then District and Sessions
Judge, Lucknow submitted a report dated
18.07.2022. The report reveals that the
entire papers in the form of Natthi-B of the
record of Sessions Trial Nos. 472 of 1984
have been weeded out and only the
original judgment was available on the
record, which was sent to this Court by the
then Sessions Judge, Lucknow.

9. Section 385 Cr.P.C. requires
that before the appeal is heard and decided
it is necessary to send for the records of
the case. Being relevant Section 385
Cr.P.C. is quoted hereinbelow:-

385.
Procedure
for
hearing
appeals not dismissed summarily.-
(1) .................................
(2) The Appellate Court shall
then send for the record of the case, if
such record is not already available in
that Court, and hear the parties:
Provided that if the appeal is only
as to the extent or the legality of the
sentence, the Court may dispose of the
appeal without sending for the record.
(3) .........................
(Emphasis supplied by us)

10. Hon'ble the Supreme Court in
the case of Shyam Deo Pandey Vs. State
(1971) 1 SCC 855, has held that perusal of
the record is necessary for the appellate
court to adjudicate upon the correctness or
otherwise of the judgment against which the
5 All. State of U.P. Vs. Hirdai Narain & Ors.
1417
appeal is preferred. The relevant paragraph
of the judgment is quoted hereinbelow:-

"18.Coming to section 425, which
has already been quoted above, it deals
with powers of the appellate court in
disposing of the appeal on merits. It is
obligatory for the appellate court to send
for the record of the case, if it is not already
before the court. This requirement is
necessary to be complied with to enable the
court to adjudicate upon the correctness or
otherwise of the order or judgement
appealed against not only with reference to
the judgement but also with reference to
the records which will be the basis on
which the judgement is founded. The
correctness or otherwise of the findings
recorded in the judgment on the basis of
the attack made against the same, cannot
be adjudicated upon without reference to
the evidence, oral and documentary and
other materials relevant for the purpose.
The reference to "such record" in "after
perusing such record" is to the record of
the case sent for the appellate court."
(Emphasis supplied by us)

11. Thus, it is clear that for deciding
a criminal appeal, it is incumbent upon the
appellate court to call for the record of trial
Court and to peruse the same at the time of
disposal of such appeal. As such the appeal
cannot be decided in the absence of trial
court record.

12. According to the report of the
then District and Sessions Judge, Lucknow
dated 18.07.2022, as noted above, in the
present matter, the trial Court record has
already
been
weeded
out
and
its
reconstruction is not possible.

13. In a similar situation a division
bench of this Court in the case of Sita Ram
and others Vs. State 1981 Cri. LJ 65 has
held as under :-

"On a careful consideration of the
relevant statutory provisions and the
principles 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 appeal since
perusal of the record of the case is one of
the essential elements 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 gap
between the date of the incident and date on
which the appeal comes up for hearing is
short, the proper course would be to direct
retrial of the cases since witnesses normally
would be available and it would not cause
undue strain on the memory of the witnesses.
Copies of the F.I.R., statements of the
witnesses under Section 161 Cr.P.C., reports
of medical examinations 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 retrial of the case, more so when
even copies of the F.I.R. and statements of
the 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 the 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
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
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 hardships to the accused and
waste of time, money and energy of the
State."
(Emphasis supplied by us)

14. In the case of Pati Ram and
another Vs. State of U.P. : 2010 Cri. LJ
2767, in almost similar situation, this court
held as under :-

" I have given my thoughtful
consideration to the rival submissions made
by parties' counsel. It is true that another
Bench of this Court in case of Raj Narayan
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 cannot be decided on merit in the
absence of lower court record. Unless the
evidence is available for perusal, in my
opinion, the appeal cannot be considered
and 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 judgment, no order on merit
can be passed in an appeal."

15. Thus, it is settled law that for
deciding the appeal, perusal of the record of
trial court is necessary and if the record is
not available and reconstruction of record is
also not possible, then following two
courses are open to the appellate court :-

(i). To order for re trial after setting
aside the conviction; or,

ii). If there is a long gap, then close the
matter for want of record as the retrial will
also not serve any purpose as the relevant
documents are not available.

17. Adverting to the case in hand,
we are constrained to observe that the
circumstances, which led the trial Court to
close the opportunity of prosecution to
adduce the evidence leading to the acquittal
of the respondents herein cannot be
adjudicating by this Court for want of record
of trial Court. Even reconstruction of record
of Session Trial No.472 of 1984 is not
possible, which is reflected from the report
of then District Judge, Lucknow and the
officer-in-charge of record room, District
Court Lucknow.

18. This incident took place in the
year 1984 and the respondents were
acquitted
thereafter
on
11.03.1987.
Thereafter this appeal was filed in the year
1987 and record was called for but record
could not be made available to this Court.
Efforts were made to get the record
reconstructed, however, the same remained
unsuccessful. About 36 years have passed
since acquittal under challenge. It is a long
gap. Since no paper relating to this case is
available except the impugned judgement,
therefore possibility of retrial at this stage,
after a long gap of about 36 years since the
occurrence of the incident appears to be
bleak.

19. We have also noticed that as the
record of the Sessions Trial No. 472 of 1984
was not made available to this Court despite
the same having been requisitioned by this
Court for the reason that the entire papers of
Natthi-B have been weeded out. The report
of the District and Sessions Judge, Lucknow
as well as report of officer-in-charge record
room, District Court, Lucknow make it clear
that reconstruction of records of Sessions
Trial No.472 of 1984 is also not possible.
5 All. State of U.P. Vs. Kailash Nath
1419
Therefore, having regard to the judgment
rendered by the Hon'ble Supreme Court in
Shyam Deo Pandey (Supra) and also having
regard to the judgments passed by this Court
in Sita Ram (Supra) & Pati Ram (Supra) we
are constrained to uphold the impugned
judgment and order dated 11.03.1987
acquitting the respondents.

20. Hon'ble Supreme Court in the
case of Chandrappa and others v. State of
Karnataka, (2007) 4 SCC 415 has held that
an appellate court must bear in mind that in
case
of
acquittal,
there
is
double
presumption in favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that
every person shall be presumed to be
innocent unless he is proved guilty by a
competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by
the trial court. It also held that if two
reasonable conclusions are possible on the
basis of the evidence on record, the appellate
court should not disturb the finding of
acquittal recorded by the trial court.

21. We are, thus, of the considered
view that instant appeal deserves to be
dismissed and the same is, accordingly,
dismissed.

22. In compliance with the
provision contained in Section 437-A
Cr.P.C. the surviving respondent, Hirdaya
Narain is directed to furnish personal bond
and two sureties to the satisfaction of the
court concerned within a period of six weeks
from today.

23. Only original judgment and
order dated 11.03.1987 was sent to this
Court by the trial Court, which may be sent
along with a copy of this judgment to the
learned trial Court for information and
necessary compliance.
----------
(2024) 5 ILRA 1419
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 1549 of 1984

State of U.P. ...Appellant
Versus
Kailash Nath ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:
V.S. Singh, Virendra Kumar Yadav

Criminal Law- The Code of Criminal
Procedure, 1973 - Sections 161,313 & 378
- Appeal in case of acquittal, Indian Penal
Code, 1860 - Section 302/34 - Murder -
power and jurisdiction of High Court while
interfering in an appeal against acquittal -
Evidence Act, 1872 - Section 106 - Burden
of
proving
fact
especially
within
knowledge - no direct evidence in the case
to prove the guilt of the accused person
and case is based on circumstantial
evidence - Prosecution to prove that the
fact was specially in the knowledge of the
accused- Acquittal can't be reversed by
higher court until and unless it is found
perverse,
illegal
or
impossible
-
miscarriage of justice should be avoided,
and if the facts and circumstances of a
case so demand, then the benefit of doubt
must be given to the accused, a
reasonable doubt is not an imaginary,
trivial or a merely probable doubt, but it is
based upon reason and common sense
(Para- 20, 28, 29, )