# Udai Narain @ Udai & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 50
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-15
- **Case number:** Criminal Appeal No. 1132 of 1982
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-narain-udai-ors-in-jail-v-state-of-u-p-46107
- **Pages:** 10

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Sections 385, 386-
Criminal Appeal- Records of court below
weeded out- Reconstruction of record not
possible- nor retrial possible as most of
the accused persons had died.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Sections 385, 386-
Criminal Appeal - After being convicted it
is right of an accused to assail the
impugned judgment and order in appeal
and point out the ambiguity, perversity,
illegality, irregularity and infirmity in the
order and proceeding of the trial Court to
prove his innocence, which is not possible
in absence of original record of the
Sessions Trial.

The purpose of the statutory right of appeal
provided to the accused under Section386 of the
Cr.Pc. to challenge the judgement of the trial
court, stands defeated in the absence of the
record of the court below since the infirmities,
illegalities and perversities in the judgement of
the trial court cannot be demonstrated before
the Appellate Court.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 -Section 386- Criminal
Appeal-In defining power of the Appellate
Court, Section 386 Cr.P.C. enumerates
that Appellate Court is empowered to
reverse the finding of the Court below or
uphold the sentence or acquit the accused
and, in exercising its power, Appellate
Court has to go through the record of
Court below and submissions made by the
appellant and Public Prosecutor. In this
view of the matter, Appellate Court cannot
properly
exercise
its
jurisdiction
of
acquittal,
reversal
or
upholding
the
sentence without perusing the record of
Sessions Trial. Therefore, in the present
scenario, taking into account the death of
the parties and non availability of the
documents, retrial in the present case is
almost impossible.

The Appellate Court, while considering an
Appeal against a judgement of conviction
recorded by the trial court, cannot exercise
the jurisdiction conferred upon it by Section
386 of the Cr.Pc. in the absence of the
record of the trial court and a retrial would
be an exercise in futility as most of the
accused and the witnesses have died during
the passage of time.

Criminal Appeal Allowed. (E-2)

Case law/ Judgements relied upon:-

## Text

50 INDIAN LAW REPORTS ALLAHABAD SERIES

69. The computer generated copy of
such judgment shall be self-attested by the
counsel of the party concerned.

70. The concerned Court /Authority
/Official shall verify the authenticity of
such computerized copy of the judgment
from the official website of High Court
Allahabad and shall make a declaration of
such verification in writing.
----------
(2021)01ILR A50
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2020

BEFORE

THE HON'BLE DINESH PATHAK, J.

Criminal Appeal No. 1132 of 1982

Udai Narain @ Udai & Ors.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri U.K. Misra, Sri Anurag Pathak

Counsel for the Opposite Party:
A.G.A., Sri V.V. Mishra

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Sections 385, 386-
Criminal Appeal- Records of court below
weeded out- Reconstruction of record not
possible- nor retrial possible as most of
the accused persons had died.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Sections 385, 386-
Criminal Appeal - After being convicted it
is right of an accused to assail the
impugned judgment and order in appeal
and point out the ambiguity, perversity,
illegality, irregularity and infirmity in the
order and proceeding of the trial Court to
prove his innocence, which is not possible
in absence of original record of the
Sessions Trial.

The purpose of the statutory right of appeal
provided to the accused under Section386 of the
Cr.Pc. to challenge the judgement of the trial
court, stands defeated in the absence of the
record of the court below since the infirmities,
illegalities and perversities in the judgement of
the trial court cannot be demonstrated before
the Appellate Court.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 -Section 386- Criminal
Appeal-In defining power of the Appellate
Court, Section 386 Cr.P.C. enumerates
that Appellate Court is empowered to
reverse the finding of the Court below or
uphold the sentence or acquit the accused
and, in exercising its power, Appellate
Court has to go through the record of
Court below and submissions made by the
appellant and Public Prosecutor. In this
view of the matter, Appellate Court cannot
properly
exercise
its
jurisdiction
of
acquittal,
reversal
or
upholding
the
sentence without perusing the record of
Sessions Trial. Therefore, in the present
scenario, taking into account the death of
the parties and non availability of the
documents, retrial in the present case is
almost impossible.

The Appellate Court, while considering an
Appeal against a judgement of conviction
recorded by the trial court, cannot exercise
the jurisdiction conferred upon it by Section
386 of the Cr.Pc. in the absence of the
record of the trial court and a retrial would
be an exercise in futility as most of the
accused and the witnesses have died during
the passage of time.

Criminal Appeal Allowed. (E-2)

Case law/ Judgements relied upon:-

1. St. of U.P. Vs Abhai Raj Singh & anr, AIR
2004 SC 3235.

2. Sita Ram & ors. Vs State, 1981 Cri.L.J.
65
1 All. Udai Narain @ Udai & Ors. Vs. State of U.P.
51
3. Crl. Appeal No. 522 of 1980 (Bachchi Lal &
ors. Vs St. of U.P.)

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
appellants and learned A.G.A. for Staterespondent.

2. Instant criminal appeal has been
preferred challenging the judgment and
order dated 26.03.1982 passed by 3rd
Additional Sessions Judge, Ballia in
Sessions Trial No.245 of 1980 convicting
the appellants under Section 395 IPC and
sentencing them to undergo five years
rigorous imprisonment.

3. Vide impugned judgment and order
dated 26.03.1982, eight accused persons
had been convicted, out of them six had
filed instant appeal.

4. As per FIR version, in the intervening
night of 14/15 March, 1980 while first
informant Ram Nagina Mishra (PW-2) was
sleeping in his room situated towards north of
the outer verandah of his house, a gang of 1415 dacoits raided at his house and barged into
the house after breaking the outer door. On
strong resistance by the villagers, many of the
dacoits managed to escape from the place of
occurrence, but out of them five dacoits
namely Udai Narayan, Ram Vachan, Jagdish,
Mani Ram and Babban were caught by the
villagers. Apart from that, two others namely
Ghura and Dukhu were recognized by the
villagers. During course of investigation
police suspected one more accused namely
Moti. In this view of the matter, total eight
persons were blamed to be involved in
commission of crime (i.e. dacoity). Informant
Ram Nagina Mishra (PW-2) has moved
written report dated 15.03.1980 (Exhibit Ka1) with respect to incident in question on the
basis of which Chik FIR (Exhibit Ka-5) has
been registered under Section 395/397 IPC
and same was scribed in the General Diary.
Copy of which was exhibited as Exhibit Ka6. After due investigation, the Investigating
Officer has submitted charge sheet under
Sections 395/397 IPC and case was registered
in the Court of Judicial Magistrate-I, Ballia.
Thereafter, case was committed to the Court
of Sessions for trial.

5. In order to substantiate the charges
levelled against the accused, prosecution has
produced as many as ten witnesses. On the
other side, defence has examined four
witnesses. After considering the facts and
circumstances and documents available on
record, trial Court has passed the impugned
judgment and order convicting the accused
persons as mentioned above.

6. Against aforesaid judgment and order
dated 26.03.1982, two criminal appeals were
preferred which are registered as (i) Criminal
Appeal No.1131 of 1982 (Ram Vachan and
another vs. State of U.P.) and (ii) Criminal
Appeal No.1132 of 1982 (Udai Narayan and
five others vs. State of U.P.).

(i) So far as Criminal Appeal
No.1131 of 1982 is concerned, it was
preferred by two accused namely Ram
Vachan (appellant no.1) and Mani Ram
(appellant no.2). Aforesaid appeal was
ordered to be dismissed as infructuous vide
order dated 06.05.2013 passed by this
Court on the ground that appellant no.1
Ram Vachan had already served out the
sentence and has already been released
from the jail. So far as appellant no.2 Mani
Ram is concerned, he expired and appeal
was already abated against him.

(ii) In the present criminal appeal
i.e. Criminal Appeal no.1132 of 1982,
which has been filed on behalf of six
52 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants/accused, out of them four had
already
died
and
vide
order
dated
12.03.2013, present appeal was ordered to
be dismissed as abated against appellant
nos.1, 2, 4 and 5. Now it survives only
against appellant no.3 Babban Nonia and
appellant no.6 Moti Ram.

7. Vide order dated 04.05.1982, instant
appeal was admitted and notice was ordered
to be issued to the State and appellants were
enlarged on bail during pendency of appeal.
With respect to the record of Court below,
District Judge, Ballia had submitted report
dated 18.02.2003 informing that record of
Criminal Appeal No.1131 of 1982 relating to
Sessions Trial No.245 of 1980 had already
been weeded out by the concerned Record
Keeper on 03.06.1992. After considering
aforesaid report, this Court had passed order
dated 29.01.2004 directing District Judge,
Ballia for reconstruction of the record.
Thereafter,
sufficient
number
of
communications have been made between
Registry of High Court and concerned Court
below. Ultimately, District Judge, Ballia had
sent a detailed report dated 27.07.2016,
through Special Messenger, along with a
detailed enquiry report dated 06.07.2016
submitted by Additional District and Sessions
Judge, Court no.3, Ballia. Record further
reveals that District Judge, Ballia had sent
another report to the same effect vide
communication letter dated 08.07.2016 along
with the detailed enquiry report dated
06.07.2016 submitted by Additional District
and Sessions Judge, Court No.3, Ballia. In the
aforesaid report, District Judge, Ballia has
specifically mentioned that despite best
efforts, reconstruction of record of Sessions
Trial no.245 of 1980 is not possible.

8. In support of his observation,
showing his inability to reconstruct the
record, District Judge, Ballia had appended
enquiry
report
dated
06.07.2016
as
mentioned above, which reveals that
learned Additional District and Sessions
Judge, Ballia had made mammoth effort for
reconstruction of the record relating to
Sessions Trial No.245 of 1980 from all
possible corners i.e. Office of District
Government Advocate (Criminal), Office
of Senior Superintendent of Police, Ballia,
Office of concerned police station, and
Record Room but all his efforts proved to
be futile. He had also summoned accused
persons namely Babban Nonia (appellant
no.3) and Moti Ram (appellant no.6), who
had stated that their counsel, in trial Court,
had already died and all record relating to
their case was with them and they did not
possess any document relating to the case.
After enquiry, it was found that first
informant Ram Nagina Mishra (PW-2) had
also died.

9. In the light of enquiry at the ground
level, Additional District and Sessions
Judge, Ballia had submitted a detailed
report
dated
06.07.2016
that
no
record/document could be found relating to
Sessions Trial No.245 of 1980, therefore,
reconstruction of record is not possible. In
the light of aforesaid enquiry report dated
06.07.2016, District Judge, Ballia had also
made his observation to the same effect.

10. Learned counsel for the appellants
has submitted that since the record of Court
below
is
missing
and
neither
the
reconstruction of record is possible nor
retrial relating to present matter is possible,
in the light of the fact that most of the
accused persons had died, hence, instant
appeal may be allowed and accusedappellants, who are alive, may kindly be
acquitted. In support of his contention,
learned counsel for the appellants has relied
on Hon'ble Supreme Court's case passed in
1 All. Udai Narain @ Udai & Ors. Vs. State of U.P.
53
State of U.P. vs. Abhai Raj Singh and
another, AIR 2004 SC 3235.

11. Learned A.G.A. has nodded the
proposition of law, as submitted by learned
counsel for the appellants, relating to the
matter where record of trial Court is
missing, and proper adjudication of the
accusation against accused persons is not
possible as required under Sections 385 and
386 of Cr.P.C.

12. In this view of the matter, the
vexed question arose for consideration in
this appeal is as to whether appeal can be
allowed and accused-appellants can be
acquitted for want of original record of
Sessions Trial.

13. I have carefully considered the
submissions advanced on behalf of both the
parties and also gone through the relevant
provisions of law.

14. After being convicted it is right of
an
accused
to
assail
the
impugned
judgment and order in appeal and point out
the
ambiguity,
perversity,
illegality,
irregularity and infirmity in the order and
proceeding of the trial Court to prove his
innocence, which is not possible in absence
of original record of the Sessions Trial. As
such, original record of Sessions Trial is
most essential before the Appellate Court to
examine the legality of conviction of
accused-appellant

15. The procedure qua legitimate right
of an accused to challenge the impugned
judgment and order of conviction and
prove his innocence is provided under
Sections 385 and 386 Cr.P.C. Aforesaid
sections fall under Chapter XXIX of
Cr.P.C. which is captioned as "Appeals".
Sections 385 and 386 Cr.P.C. deals with
"Procedure
for
hearing
appeals
not
dismissed summarily" and "Powers of the
Appellate Court", respectively, which read
as follows :

"385. Procedure for hearing
appeals not dismissed summarily.-(1) If the
Appellate Court does not dismiss the
appeal summarily, it shall cause notice of
the time and place at which such appeal
will be heard to be given-

(i) to the appellant or his pleader;

(ii) to such officer as the State
Government may appoint in this behalf;

(iii) if the appeal is from a
judgment of conviction in a case instituted
upon complaint, to the complainant;

(iv) if the appeal is under Section
377 or Section 378, to the accused, and
shall also furnish such officer, complainant
and accused with a copy of the grounds of
appeal.

(2) The Appellate Court shall
then send for the record of the case, if such
record is not ready 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) Where the only ground for
appeal from a conviction is the alleged
severity of the sentence, the appellant shall
not, except with the leave of the Court, urge
or be heard in support of any other ground.

386. Powers of the Appellate
Court.-After perusing 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 it
considers that there is no sufficient ground
for interfering, dismiss the appeal or may-

(a) ***
54 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) ***

(c) ***

(d) ***

(e) ***"

16. As per procedure embodied under
Section 385 Cr.P.C., Appellate Court, in
case not dismissing the appeal summarily,
is entrusted with the duty to issue notice to
persons as mentioned in several categories
of Section 385 (1) Cr.P.C. Appellate Court
has also been entrusted to call for the
record of Court below with one exception,
where the appeal is only to the extent or the
legality of sentence, it may dispose of an
appeal without summoning the record.
Further, in defining power of the Appellate
Court, Section 386 Cr.P.C. enumerates that
Appellate Court is empowered to reverse
the finding of the Court below or uphold
the sentence or acquit the accused and, in
exercising its power, Appellate Court has to
go through the record of Court below and
submissions made by the appellant and
Public Prosecutor. In this view of the
matter, Appellate Court cannot properly
exercise
its
jurisdiction
of
acquittal,
reversal or upholding the sentence without
perusing the record of Sessions Trial.

17. Dealing with the matter wherein
record of Court below is missing and
reconstruction is not possible, even retrial
of the case has also become difficult owing
to so many reasons, Hon'ble Supreme Court
has enumerated the law relating to these
matter and expounded that in such
eventuality, matter should be closed. In
State of U.P. Vs Abhai Raj Singh (supra),
Hon'ble Supreme Court has observed as
under :

"The powers of the appellate
court when dealing with an appeal from a
conviction are delineated in sub-clauses (I),
(ii) and (iii) of clause (b) of section 386 of
the code. The appellate court is empowered
by section 386 to reverse the finding and
sentence
and
acquit.
Therefore,
the
acquittal is possible when there is reversal
of the finding and sentence and acquit.
Therefore, the acquittal is possible when
there is reversal of the finding and
sentence. The appellate court of competent
jurisdiction subordinate to the appellate
court or committed for trial . For exercise
of the powers in cases of first two
categories, obviously a finding on merits
after consideration of the materials on
record is imperative. Where that is not
possible because of circumstances like the
case at hand i.e. destruction of the records ,
the proper course for the appellate court
would
be
to
direct
retrial
after
reconstruction of the records the same was
impossible. If on the other hand, from the
copies available with the prosecuting
agency or the defence and/or their
respective
counsel,
reconstruction
is
possible to be made, the said course
indicated in sub-clause (i) and (ii). After
perusal of the records and hearing the
appellant's pleader and Public Prosecutor
under section 377 or 378, the exercise of
power as indicated above can be resorted
to. As was observed in Bani Singh v. State
of U.P. (1996) 4 SCC 720 . The plain
language of section 385 makes it clear that
if the appellate court does not consider the
appeal fit for summary dismissal, it must
call for the records and section 386
mandates that after record is received, the
appellate court may dispose of the appeal
after hearing as indicated.

A question would further arise as
to what happens when reconstruction is not
possible.
Section
386
empowers
the
appellate court to order that the case be
committed for trial and this power is not
circumscribed to cases exclusively triable
1 All. Udai Narain @ Udai & Ors. Vs. State of U.P.
55
by the Court of Session.(See State of U.P. v.
Shankar AIR 1962 SC1154).

It has been the consistent view
taken by several High court that when
records are destroyed by fire or on account
of
natural
or
unnatural
calamities
reconstruction should be ordered. In Queen
Empress v. Khimat 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
reconstruction.
The
said
view
was
reiterated more than six decades back in
Sevuaperumal, Re AIR 1943 Mad 391(2).
The view has been reiterated by several
high Courts as well,even thereafter.

The High court did not keep the
relevant aspects and consideration in view
and came to the abrupt conclusion that
reconstruction was not possible merely
because there was no response from the
Session Judge. The order for reconstruction
was 1-11-1993 and the judgement of the
high court is in Criminal Appeal No. 1970
of 1979 dated 25-2-1994. the order was
followed in Criminal Appeal No. 1962 of
1979 disposed of on 16-9-1995. it is not
clear as to why the high court did not
require the session court to furnish the
information
about
reconstruction
of
records; and/or itself take initiative by
issuing positive directions as to the manner,
method and nature of attempts,efforts and
exercise to be undertaken to effectively
achieve the purpose in the best interests of
justice and to avoid ultimately any
miscarriage of justice resulting from any
lapse,inaction
or
inappropriate
or
perfunctory
action,in
this
regard;
particularly when no action was taken by
the high court to pass necessary orders for
about
a
decade
when
it
received
information about destruction of record.
The course adopted by the high court, if
approved,
would
encourage
dubious
persons and detractors of justice by
allowing undeserved premium to violators
of law by acting hand in glove with those
anti-social
elements
coming
to
hold
sway,behind the screen, in the ordinary and
normal course of justice.

10. We , therefore, set aside the
order of the high court and remit the matter
back for fresh consideration. It is to be
noted at 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 reconstruction
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 reonstructed 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 their own
merits and in ordering retrial interest of
justice could be better served-adopt that
course. If only reconstruction is not
possible to facilitate the high court to hear
and dispose of the appeals and the further
course of retrial and fresh adjudication by
the 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
judgement shall operate and the matter
shall stand closed. The appeals are
accordingly disposed of."

18. In Sita Ram and others vs.
State, 1981 Cri.L.J. 65, it is held that
appellant has a right to show in the appeal
56 INDIAN LAW REPORTS ALLAHABAD SERIES
that the decision arrived at by the Court
below, was not supported by the evidence
on record and in absence of original record,
it is not possible to examine the legality of
the judgment in question that as to whether
same is supported by the evidence available
on record and order of conviction passed
and sentence imposed is legally justified
and proper. Relevant paragraphs 5, 6, 7, 8,
9, 10, 11 of aforesaid judgment are
reproduced herein below :

"5. Since it is incumbent on the
appellate court to send for the record and
peruse it and hear the counsel for the
parties before it can exercise its power
under Section 386, the present appeal
cannot possibly be heard and decided on
merit.

6. The appellants have a right to
show to this Court that the decision arrived
at by the court below was not supported by
the
evidence
on
record.
They
can
legitimately contend that material evidence
and
circumstances
have
either
been
ignored or incorrectly appraised. This right
cannot be denied to the appellants. In the
absence of the original record it is not
possible for us to arrive at a decision that
the impugned judgment is supported by the
evidence on record and the order of
conviction
passed
and
the
sentence
imposed on the appellants is legally
justified and proper.

7. In such a situation two courses
are open to the Court; (1) to order retrial
after setting aside the impugned judgment;
or (2) to acquit the appellants. A situation
like the present one arose before Courts
earlier also. In re Sevugaperumal AIR 1943
Mad 391 (2) : 44 Cri LJ 611 the accused
were convicted under Sections 457, 395
and 397 Penal Code, and sentenced to
various terms of imprisonment. Following
the decision of this Court in QueenEmpress v. Khimat Singh 1889 All WN 55
(supra) the Madras High Court ordered
retrial after setting aside the convictions.
From the reports of these decisions it is not
clear how much time had elapsed between
the incident and the date when retrial was
directed. In the Madras case the impugned
order of the trial court was dated 22-61942. The appeal was filed on 6-8-1942
and the original record was destroyed by
fire on 17-8-1942. The appeal came up for
hearing on 5-11-1942. It may be that the
time lapse between the date of the incident
and the date of decision by the appellate
court was not long. Moreover the Public
Prosecutor conceded in those cases that no
other course was possible under the
circumstances.

8. In Madhusudhan v. State 1963
(2) Cri LJ 103 (Orissa) the appellant was
convicted under Section 302, I.P.C. and
sentenced to imprisonment for life by an
order of the Sessions Judge dated 17-41962. The incident had taken place on 293-1962. The appeal came up for hearing on
12-12-1962. The appellate court directed
retrial of the case. It may be noted that the
order for retrial was passed well within two
years of the incident.

9. A similar situation arose before
this Court in Zillar v. State 1956 All WR
(HC) 613. In this case the appellants were
convicted by the Sessions Judge on 21-11951 under Sections 304 and 148, I.P.C. in
respect of the offence committed on 2-41950. The appeal was filed in this Court on
24-1-1951 which came up for hearing in
April 1956 when it was brought to the
notice of the Court that the entire record of
the case had been lost. Attempt was made
to reconstruct the record but it proved
futile. This Court refused to direct retrial of
the case on the reasoning that the case
related to an offence which was committed
more than six years ago and five years had
1 All. Udai Narain @ Udai & Ors. Vs. State of U.P.
57
elapsed since the judgment of the Sessions
Judge convicting the appellants was
passed. The court took into account the
further fact that even the copies of the
F.I.R. and the statements of witnesses taken
under Section 161 Cr. P.C. were not
available as they had been weeded out in
the ordinary course.

10. A Division Bench of this
Court in Criminal Appeal No. 3235 of 1971
(Jit Narain v. State) decided on 15-3-1978
in similar circumstances allowed the
appeal and acquitted the appellants instead
of directing their retrial.

11. On a careful consideration
of the relevant statutory provisions and
the principle 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 appellant
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 lag between the
date of the incident and the date on which
the appeal comes up for hearing is short,
the proper course would be to direct
retrial of the case since witnesses
normally would be available and it would
not cause undue strain on the memory of
witnesses. Copies of F.I.R., statements of
witnesses under Section 161, Cr. P.C.
reports of medical examination 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 F.I.R. and statements of
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
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 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 hardship to
the accused and waste of time, money and
energy of the State.

In the present case the incident
took place on 23-8-1971. The appellants
were convicted by the Sessions Court by
an order dated 18-11-1974. The appeal
has been pending in this Court for about
six years. We are informed that copies of
the
First
Information
Report
and
statements of witnesses recorded under
Section 161, Cr. P.C. have been weeded
out and are not available. All attempts to
reconstruct the record have proved futile.
In such a situation it is not permissible
for us to affirm the order of conviction of
the appellants, since in the absence of the
record we cannot possibly feel satisfied
that the appellants have been rightly
convicted. Due to lapse of time and nonavailability
of
papers
like
First
Information Report, statements under
Section 161, Criminal Procedure Code
etc, we do not consider it either just or
expedient to order retrial of the case."

19. Similar view was expressed by a
Division Bench of this Court in Criminal
58 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal No.522 of 1980 (Bachchi Lal and
others vs. State of U.P.) decided on
11.02.2020.

20. I have examined the matter in the
light of the expressed view expounded by
Hon'ble Supreme Court as well as Division
Bench of this Court as mentioned above. It
is apparent that in deciding appeal at the
time of examining legality of judgment and
order passed by Court below, Appellate
Court is required to peruse the record of
Sessions Trial to ascertain as to whether
evidence which have been relied on by the
trial Court in convicting or acquitting the
accused, has properly been appreciated or
not.

21. In the present matter, as
discussed above, sincere effort had been
made by the concerned authorities of
Subordinate Court qua reconstruction of
original record and after proper and
elaborate enquiry made by the concerned
Additional District and Sessions Judge, a
report had been submitted by him that
reconstruction of original record of
Sessions Trial is not possible, inasmuch
as, any paper or document relating to
Sessions Trial No.245 of 1980, despite
sincere efforts, could not be collected or
procured from any possible corner, from
where documents were expected to be
available. So far as retrial of the case is
concerned, after examining the matter in
the
light
of
report
submitted
by
Subordinate Court and perusal of record,
I am of the opinion that in the present
scenario retrial of the instant matter is not
possible. Out of eight accused, who had
been convicted by impugned judgment
and order dated 26.03.1982, five had
already died and one accused namely
Ram Vachan had already completed his
sentence and released from jail. Here, it is
made clear, as discussed above, that two
accused namely Ram Vachan and Mani
Ram had filed Criminal Appeal No.1131
of
1982,
which
was
dismissed
as
infructuous vide order dated 06.05.2013
and remaining six accused persons have
filed the instant criminal appeal. As per
enquiry report of Additional District and
Sessions Judge, Ballia, first informant
Ram Nagina Mishra (PW-2) had also died
years back.

22. In the light of aforesaid fact,
that many of the persons relating to
case including the accused and first
informant had died, it is quite possible
that many of the witnesses must have
also died. Therefore, in the present
scenario, taking into account the death
of the parties and non availability of the
documents, retrial in the present case is
almost impossible. Time passed in the
matter is also relevant to be considered.
Initially incident took place long back
in March, 1980 and impugned judgment
and order was passed in March, 1982.
Thereafter, appeal was filed and the
same was admitted vide order dated
04.05.1982.
Since,
the
date
of
occurrence up to till date, about 40
years had passed and at this stage
issuing direction for retrial would be an
exercise in futility, therefore, in the
eventuality that record of Sessions Trial
is missing, no fruitful purpose would be
served in protracting the appeal.

23. In the light of law laid down
by
Hon'ble
Supreme
Court
and
provisions of law wherein record of
Sessions Trial is essentially required to
be perused before deciding an appeal,
but same is neither traceable nor
reconstruction of aforesaid record is
possible nor even retrial of the case is
1 All. Smt. Chameli & Ors. Vs. State of U.P.
59
possible, I am of the considered view
that present appeal should be allowed
and impugned judgment and order dated
26.03.1982 passed by Sessions Court
should
be
quashed
and
surviving
appellants should be acquitted.

24. Resultantly, present appeal is
allowed. Impugned judgment and order
dated 26.03.1982 passed in Sessions
Trial No.245 of 1980 is hereby quashed
so far it relates to conviction and
sentence to appellant no.3, Babban
Nonia and appellant no.6, Moti Ram.

25. A copy of this order along with
lower Court record be sent to concerned
Court forthwith for information and
immediate compliance.
----------
(2021)01ILR A59
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.01.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 1536 of 2003

Smt. Chameli & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Subodh K. Shukla

Counsel for the Opposite Party:
Govt. Advocate

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
154-
First
Information Report- Delay in lodging- It is
settled principle of law that only on the
ground that F.I.R. was lodged by delay,
the prosecution case cannot be thrown
out because no time limit has been
prescribed for lodging the F.I.R. either in
Evidence Act or in the Code. The delay,
caused in lodging the F.I.R., depends upon
facts and circumstances of the each case
and
if
such
delay
is
natural
and
reasonable, it cannot be treated fatal to
the
prosecution
story.
(P.W.-1)
has
specifically stated that he had requested
the concerned police at the time of
inquest proceeding to take action against
the appellants and after post-mortem
examination, also had gone to concerned
police station to lodge the F.I.R. but he
was expelled from the concerned police
station
and
no
F.I.R.
was
lodged.
Thereafter
he
had
sent
the
written
information (Ext.-Ka-1) dated 27.04.1998
to Hon'ble Chief Minsiter, U.P.

There is no uniform proposition of law that
delay in lodging FIR will be invariably fatal for
the case of the prosecution.The effect of delay
depends on the facts and circumstances of each
case- Delay is not fatal where the same is
reasonable and sufficiently explained.

Criminal Law - Indian Penal Code, 1860-
Section 498-A - Failure to take any legal
step in such disputes against the in-laws
of the deceased does not mean that
neither
dowry
was
demanded
nor
harassment or cruelty was committed to
the deceased soon before her death.
Although, P.W.-1 and P.W.-2 failed to
lodge report at any police station but it
cannot be said that they failed to protest
the torture and harassment committed by
the appellants.

Merely because the parents of the deceased
failed to make any complaint before the
authorities cannot lead to the inference that the
deceased was not subjected to cruelty.

Criminal Law - Indian Penal Code, 1860-
Section 306- The offence of Section 306
I.P.C. is lesser and different from the
offence of dowry death. For this offence
only abetment which leads to commitment
of suicide of a person is required to be
proved and if such suicide is done by
women
within
seven
years
of
her