State of Chhattisgarh Through Police Baramkela. vs For Applicant

sentence dated 25.11.2000 passed by the learned First Additional Sessions Judge, Raigarh in Sessions Trial No. 75 of 1999, convicting all the three appellants for 7 years rigorous imprisonment under Section 304B of I.P.C.

4. The prosecution case in brief is that on 17.04.1099, the accused Suraj Kumar had asked his wife, deceased Madhuri, to wash clothes. When she refused to do so, they had a quarrel. After this, the accused Suraj Kumar strangulated his wife to death and with the help of other accomplices, to make the murder look like a suicide, he tied a rope around the neck of the deceased and hanged her in the room inside the room. Thereafter, a complaint was lodged by Suraj Kumar at police station, Barmerkela. On the basis of which, Merg No. 6/99 was registered as Ex.P-19 by Assistant Sub-Inspector (PW-18). Thereafter, the investigation of incident was done by T.R. Koshima (PW-12), the then S.D.O.(R). After registration of Merg, during the course of investigation, the Panchnama of the dead body was prepared by the Investigating Officer and before preparing the Panchnama, notice was given to the witnesses as per Ex.P-2. After that in the presence of witnesses Gaurishankar, Shaduram, Indrajeet, Shivkumar and Latabai the inquest over the dead body was prepared as per Ex.P-3 and thereafter, the dead body of the deceased Madhuri sent for post-mortem to Primary Health Centre, Baramkela vide 3 Ex.P-22. The post-mortem of the dead body of the deceased Madhuri was conducted by Dr.K.Maravi (PW-20), and his report was given as per Ex.P-21. In the post-mortem report, the doctor had opined that the death of the deceased Madhuri was due to throttling and it was homicidal in nature.

5. During the course of investigation, statements of the witnesses were recorded and when the death of the deceased was found to be in suspicious circumstances, FIR (Ex.P-21) was registered under Sections 302 and 304 read with Section 34 of IPC. Spot map was prepared by the concerned patwari (PW-19) vide Ex.P- 20 and after completion of investigation, charge-sheet has been submitted against the four accused persons including the three appellants before the jurisdictional Magistrate under Sections 302, 304B, 201 read with Section 34 of IPC.

6. Charges were framed against the accused, which were read over and explained to them. The accused denied the charges and claimed trial. The prosecution, in support of its case, examined as many as 21 witnesses and exhibited several documents. After the closure of prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C., wherein they denied all incriminating circumstances and pleaded innocence, choosing not to adduce any defence evidence.

7. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 25.11.2000 while 4 acquitting the accused from the charges under Section 302, 201 read with Section 34 of IPC and further acquitting the accused Sanyasi from the charges of 304B read with Section 34 of IPC, has convicted and sentenced the accused/appellants as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the accused/ appellants.

8. A bare perusal of the order dated 26.01.2001 passed by the co- ordinate Bench reflects that, though the trial Court record was summoned by the Co-ordinate Bench of this Court on 02.01.2001 after filing of the present appeal, the Office sent a memo on

24.12.2001 for calling the trial Court record, and two reminders were also issued. However, till 24.12.2001, the trial Court record had not been made available. On 26.12.2001, the Co-ordinate Bench sought an explanation from the concerned District and Sessions Judge regarding non-sending of the trial Court record. On the same date, the Court also granted bail to appellants No. 2 and 3, who have since died during the pendency of this appeal, and whose appeals have been ordered to be abated vide orders dated 26.09.2018 and 05.04.2023, respectively.

9. As far as appellant No.1, Suraj Kumar, is concerned, the Court directed that his bail would be considered after the receipt of the trial Court record.

10. On 23.04.2003 the coordinate Bench of this Court passed a 5 following order :- “There is an order passed by Hon'ble the Chief Justice on 01.5.2002 for reconstruction of the record which reads as follows: "The letter dated 0-10/10/2001 of the District Judge, Raigarh shows that the records were being reconstructed. The Registry is directed to ask the District Judge to reconstruct the records as expeditiously as possible and dispatch the same to this Court immediately." Registry to submit report regarding compliance of the said order. Counsel for both the parties also to render due cooperation. Adjourned.”

11. On 26.04.2003, the Office issued a reminder requesting the District & Sessions Judge, Raigarh, to get the record reconstructed. On 15.11.2003, the Coordinate Bench of this Court granted bail to the appellant No.1, namely, Suraj Kumar.

12. On 11.11.2025, when the matter was called out for hearing, the reconstructed record has been produced. It revealed that it contains only a copy of the final report; however, there appear to be no depositions of the witnesses, no order framing charge, no order-sheets, no postmortem report, nor the judgment of the trial Court. It further transpires that though some departmental enquiry 6 was initiated against the concerned official, the name of the said official has not been mentioned.

13. As per the report of the then District & Sessions Judge, Raigarh, a memo dated 27.10.2022 has been enclosed stating that the records were searched from 21.10.2022 to 27.10.2022 with due diligence and after making all possible endeavours, the case records related to S.T. No. 75 of 1999 could not be traced out and are still missing, as per the report of the OIC Record Room attached. It has been further stated that a departmental enquiry was initiated against the concerned official. However, the report of the District & Sessions Judge, Raigarh, dated 28.12.2022, does not clearly indicate whether any action was taken against the erring official found responsible for the missing record of the present Sessions Trial.

14. In view of the above, the Principal District & Sessions Judge, Raigarh, was directed to inform this Court about the result of the departmental enquiry conducted against the erring official, disclosing his name and specifying what action, if any, was taken against him and it was further directed that the report should be submitted to this Court by the next date of hearing, i.e.,

04.12.2025.

15. In compliance of the Court’s order dated 11.11.2025, a report dated 19.11.2025 has been submitted by the Principal District & Sessions Judge, Raigarh, whereby he has informed that against 7 erring official, Shri Kartik Ram Suman, the then Assistant Record Keeper, Raigarh, who was responsible for misplacing the records of trial Court related to S.T. No. 75 of 1999, an enquiry was conducted by the then District and Sessions Judge and finding him guilty for the same, vide order dated 11.09.2008 his two increments were withheld with cumulative effect. A copy of the order dated 11.09.2008 passed by the then District and Sessions Judge has also been annexed with the memorandum of Principal District & Sessions Judge, Raigarh dated 19.11.2025.

16. Further from perusal of the memo dated 28.10.2022 submitted by the then District and Sessions Judge, Raigarh in compliance of the Court’s order dated 10.10.2022, it transpires that records related to S.T. No. 75 of 1999 were searched out from 21.10.2022 to 27.10.2022 with due diligence and after making all possible endeavours, the same has not been traced out and are still missing, as per the report of the OIC Record Room attached.

17. As the records related to S.T. No. 75 of 1999 could not be traced out and further reconstruction of the record is also not possible and the records which have been reconstructed and has been placed in present appeal goes to show that there appear to be no depositions of the witnesses, no order framing charges, no order- sheets, no postmortem report and only the judgment of the trial Court is available, in the present appeal filed by the appellants, thus, it is certainly not possible to dispose of the appeal on merits.

18. In Sita Ram & others Vs. State, reported in 1981 Cr. LJ 65, a 8 Division Bench of the Allahabad High Court has observed that where original record was not available to the appellate court and reconstruction of the record which has been lost or destroyed is not possible, then it will not be legally permissible for the appellate court to confirm the conviction of the appellant. Since, the 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 satisfy the appellate court that the material on record did not justify his conviction and that right cannot be denied to him.

19. As the case is very old one, the time lack between the date of incident and the date of this appeal is coming for hearing is very long, it would not be appropriate to direct retrial of the case. Since, witnesses normally would not be available and documents cannot be available because all relevant papers have been weeded out. In such circumstances, the accused will be prejudiced and prosecution would be greatly handicapped in establishing its case and trial would be reduced to a mere formality in telling agony and hardship to the accused and waste of time, money and energy of the State. In that circumstance, this Court has no option except to pass an order of acquittal of the appellant. This view was also adopted in the cases of Ram Nath Vs. State, (1982) 19 ACC 128 and Pyare Lal and Ors. Vs. State of U.P. 2010 (70) ACC 55 Alld.

20. In similar circumstances in State of U.P. Vs. Abhay Raj Singh & 9 Another (2004) 4 SCC 6, it has also been held by the Hon'ble Supreme Court that the proper course for the Appellate Court in the circumstances where records of Trial Court has been destroyed or is not made available to Appellate Court, direction for retrial should be issued, but it has also been held that if 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 directions may be given for acquitting the accused and the matter shall stand closed.

21. In State of U.P. Vs. Malooka & Ors. 2013 (3) JIC 575 (All), Division Bench of the Allahabad High Court has laid down that accused appellant should be acquitted and appeal should be dismissed where reconstruction of record, despite multi-prolonged approach, not possible and where there is more than 32 years old occurrence.

22. The Supreme Court in the matter of Jitendra Kumar Rode Vs. Union of India (SLP No. 2063 of 2023) decided on 24.04.2023 has held as under :- “33. In light of the abovementioned discussion, the Accused, in appeal, has a right to have the record perused by the Appellate Court and, therefore, upholding a conviction by merely having noted that the counsel for the accused not having the record at the time of filing the appeal is "doubtful" and that "no one can believe" the appeal would have been filed without perusing the record, as observed by the High 10 Court is not correct. The job of the Court of Appeal is not to depend on the lower Court's judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon.

34. In the facts at hand, the alleged offence in question was committed on 21.3.1995, and the judgment of the Trial Court was delivered on 7.12.1999. More than 28 years have passed since the commission of the offence. As already indicated, the relevant Trial Court record has not been able to be reconstructed, despite the efforts of the courts below. Hence, in our considered view, as discussed above, ordering a retrial is not in the interest of justice and will not serve any fruitful purpose. The time elapsed must be taken into consideration by the Court, and we may stress on that, only after taking due note of and taking steps to abide by the warning issued by this Court in Abhai Raj Singh (supra), as was correctly done in Sita Ram (supra).”

23. As per sub-section (2) of Section 385 Cr. P.C., it is obligatory on the part of the appellate court to peruse the record before deciding the appeal against an order of conviction. The conviction of an accused cannot be confirmed unless the appellate court peruses the entire records.

24. Having consideration of Sections 384, 385 & 386 of Cr.P.C., I am also of the opinion that only by perusing the judgment of the trial court it will not be appropriate to hear the appeal on the merits.

25. Thus, taking note of the above mentioned judicial pronouncements, time elapsed between the occurrence of the offence and the appeal being finally decided and considering the 11 fact situation of the case, the only option left to this Court is to acquit the surviving accused appellant Suraj Kumar from the alleged charge.

26. Accordingly, the appeal is allowed at this count only. The conviction and sentence of the surviving accused appellant Suraj Kumar are hereby set aside and he is acquitted from the charge under Section 304B of I.P.C.

27. The appellant is reported to be on bail, he need require to surrender. However, his bail bonds not discharged at this stage and shall remain operative for a further period of six months in view of Section 437-A of CrPC (481 of the Bhartiya Nagarik Suraksha Sanhita, 2023).

28. A copy of judgment is directed to transmit to the Trial Court for its intimation. Sd/- (Ramesh Sinha) Chief Justice Chandra/Preeti