Shambhu Dayal & Ors. v. State

Hon'ble Vivek Kumar Birla,J. Hon'ble Ms. Nand Prabha Shukla,J.

The appeal is of the year 1989.

When the matter was taken up, it was pointed out that Shri G.P. Dikshit, learned counsel for the appellant is dead.

The present appeal has been filed by the accused-appellant who has been convicted and sentenced vide judgment and order dated 12.5.1989 passed by Vth Additional Sessions Judge, Etawah in S.T. No. 113 of 1985 arising out of Case Crime No. 286 of 1984, under Sections 148, 323/149, 302/149 I.P.C., Police Station - Ajeetmal, District - Etawah.

We have seen the office report, on 11.11.2024, the following order was passed: "As per the report of the District Judge Etawah, we have been made aware that the reconstruction of the record of the case is not possible. It is to be examined by the District Judge, Etawah as to whether a retrial is possible in the matter or not, as per the decision of the Hon'ble Supreme Court in the case of State of U.P. vs. Abhay Raj Singh, reported in 2004 (4) SCC 6. A report be sent in that regard. List this case on 10.12.2024."

On 10.12.2024, the following order was passed: "As per the report of District Judge, Etawah dated 02.12.2024, we find that the report has been sent on the basis of the fact that since the records were not available, retrial of the case was not possible. It is not even clear from the records as to whether the accused and the first informant were contacted. Learned District Judge, Etawah to make all possible endeavors to contact the accused and the first informant and a report be sent as to whether retrial of the case is possible after contacting them. List this case on 07.01.2025."

On 7.1.2025, the following order was passed: "1. Perused the office report and the letter dated 04.01.2025 sent by the District Judge, Etawah seeking further time for sending report regarding re- construction and possibility of re-trial in the present case.

2. Office is directed to send a reminder to the District Judge, Etawah.

3. List on 23.01.2025."

In compliance of the aforesaid orders, office has submitted a report dated 22.1.2025, which is based on the report of District Judge, Etawah, according to which, the informant- Roopram is dead. The statement of his wife, Kanchan Devi was recorded, who clearly stated that he died on 9.4.2015 and she has not found any record of the case. The sole surviving accused-appellant- Shambhu Dayal, aged about 83 years, has also appeared and stated that he does not have any document of the case. He had also stated that accused, Jiyalal, Atwal, Om Prakash, Ram Gopal, Gaya Prasad and Dhani Ram are also dead and therefore, the death certificates have also been placed on record to the concerned police station. The Senior Superintendent of Police, Etawah has also expressed his inability to provide the records related to the file.

We have gone through the report submitted by the District Judge, Etawah, according to which, reconstruction or retrial is not possible with the present appeal.

In such view of the matter, it is quite clear that record of the relevant sessions trial is not traceable.

We have considered the identical issue as to whether in absence of trial court record appeal can be decided or retrial is possible after a long gap of time in Mauji Lal Vs. State 2022 (119) ACC 522 (DB) wherein entire case law including judgement of Hon'ble Apex Court in State of U.P. Vs. Abhay Raj Singh 2004 (50) ACC 691 (SC) has also been relied on.

In view of the judgment of the Apex Court in the Case of State of U.P. Vs. Abhay Raj Singh (Supra), it is not possible either to get the record of the present case reconstructed or retrial as the record has been weeded out in accordance with law, hence judgement dated 12.5.1989 passed by Vth Additional District & Sessions Judge, Etawah as regards the accused person cannot be reversed. Hence, in view of above stated position of law when record of the trial court is not traceable and reconstruction or re-trial is also not possible, the appeal has to be allowed.

The appeal accordingly stands allowed. The impugned judgment and order of the trial court dated 12.5.1989 convicting and sentencing the appellant is hereby set aside and the appellant is acquitted of the charges levelled against him. The accused- appellant Shambhu Dayal is on bail. His personal bond is cancelled and sureties are discharged.

Copy of this judgment be sent to the court concerned for necessary compliance. Order Date :- 23.1.2025 Mohini MOHINI RAI High Court of Judicature at Allahabad