Counsel for Respondent(s) vs V.K.Jaiswal

of trial court has been weeded out and reconstruction of the same is not possible. This appeal is pending since the year 1985 and the incident relates to the year 1983. In view of these facts retrial of the matter is also not feasible. The case relates to conviction of appellant under section 3/7 of E.C. Act and he was sentenced to three months rigorous imprisonment along with fine of Rs. 300/-. Thus, no useful purpose would be served by keeping this appeal pending indefinitely, rather it appears appropriate and desirable that this appeal be decided as per the settled law.

4. As stated above, the appellant was convicted under section 3/7 of E.C. Act and he was sentenced to three months rigorous imprisonment along with fine of Rs. 300/-. The case relates to an incident of 1983 and this appeal is pending since 1985 and record of the trial has been weeded out. 2 CRLA No. 2415 of 1985

5. It is well settled that in absence of original record, it is not possible to arrive at the decision whether the findings recorded by the court below are based on evidence and whether the conviction of appellant is justified or not. In Shyam Deo Pandey Vs. State of Bihar, 1971 (1) SCC 855 the Apex Court said that fulfillment of requirement for availability of record is necessary to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against nor only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. Relevant part of the judgment is extracted as under : "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 judgment appealed against not only with reference to the judgment but also with reference to the records which will be the basis on which the judgment 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 by the Appellate Court."

6. In Sita Ram and Others Vs. State 1981 Cri.L.J. 65 the Court observed that in absence of the original record it is not possible 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. 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.

7. In Bhunda and Others Vs. State of U.P., 2002 Cri.L.J. 3898, the Court observed and held as under : ‘‘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 3 CRLA No. 2415 of 1985 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 witness 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 statement 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.

10. The above case of Division Bench was further relied on by subsequent Division Bench in the case of Ram Nath v. State, 1982 All Cri C 128.

11. In the instant case the report of the Sessions Judge, Jhansi shows that reconstruction of record was not possible despite of all attempts taken in this regard. this Court, therefore, is not in a position to confirm the conviction recorded by the trial Court.

12. So far as the question of ordering retrial is concerned the occurrence in this case took place as late as on 20-5-1975 i.e. as far back as 26 years. In such situation it will not be justifiable to direct retrial. In this view of the matter, I have no option but to allow the appeal and set aside the conviction and sentence of the appellants."

8. In Laukush and Another Vs. State of U.P., 2013 (7) RCR(Cri) 493, the Court observed and held as under :

9. In the absence of original record, since reconstruction is not possible, remanding the appeal back for retrial will not serve any useful purpose at all.

10. From the impugned judgment, it transpires that the incident had occurred on 8.6.1979, more than 30 years ago and the appellants were released on bail in the year 1982 by this Court.

11. Since reconstruction of the record is not possible, we apply the decision of the Apex Court in State of U.P. Vs. Abhai Raj Singh (2004) 4 SCC 6, wherein the Hon'ble Apex Court has been pleased to observe as under :- "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 judgment shall operate and the matter shall stand closed."

12. In view of the aforesaid, we allow both the appeals and the impugned judgment of conviction and sentence of the appellants are hereby set aside and they are set at liberty and are acquitted of the charges. The appellants are on bail, they need not surrender. Their bail bonds and surety bonds are discharged."

9. Keeping in view the aforesaid pronouncements, in the instant case it 4 CRLA No. 2415 of 1985 may be stated that as per report of the In-charge Record Room, District Court, Mirzapur, record of trial court has been weeded. Reconstruction of the record is not possible as even the statements of the prosecution witnesses are not available. At this point of time, retrial is neither possible nor feasible. This appeal is pending since last 40 years. In view of attending facts and circumstances, particularly considering the fact that this appeal is pending since the year 1985 and that the appellant was sentenced to three months rigorous imprisonment along with fine of Rs. 300/- under section 3/7 of E.C. Act, there is no justification to keep this matter pending. Considering the legal position on the point that where trial Court record is weeded out and reconstruction is not possible and even retrial is not possible, particularly the law laid down by the Apex Court and by the Division Bench of this Court in above referred cases, this court is left with no option but to decide the appeal as per the settled law and therefore, the appeal has to be allowed.

10. The appeal is accordingly allowed. The impugned judgment and order dated 29.08.1985, by which the appellant Devi Charan was convicted, is hereby set aside. The appellant is acquitted of the charges levelled against him. The appellant is on bail and thus, no further order is required.

11. Appeal is allowed in above terms.

12. Copy of this judgment be sent to the court concerned forthwith. August 28, 2025 Anand (Raj Beer Singh,J.) ANAND VERMA High Court of Judicature at Allahabad

of trial court has been weeded out and reconstruction of the same is not possible. This appeal is pending since the year 1985 and the incident relates to the year 1983. In view of these facts retrial of the matter is also not feasible. The case relates to conviction of appellant under section 3/7 of E.C. Act and he was sentenced to three months rigorous imprisonment along with fine of Rs. 300/-. Thus, no useful purpose would be served by keeping this appeal pending indefinitely, rather it appears appropriate and desirable that this appeal be decided as per the settled law.

4. As stated above, the appellant was convicted under section 3/7 of E.C. Act and he was sentenced to three months rigorous imprisonment along with fine of Rs. 300/-. The case relates to an incident of 1983 and this appeal is pending since 1985 and record of the trial has been weeded out. 2 CRLA No. 2415 of 1985

5. It is well settled that in absence of original record, it is not possible to arrive at the decision whether the findings recorded by the court below are based on evidence and whether the conviction of appellant is justified or not. In Shyam Deo Pandey Vs. State of Bihar, 1971 (1) SCC 855 the Apex Court said that fulfillment of requirement for availability of record is necessary to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against nor only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. Relevant part of the judgment is extracted as under : "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 judgment appealed against not only with reference to the judgment but also with reference to the records which will be the basis on which the judgment 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 by the Appellate Court."

6. In Sita Ram and Others Vs. State 1981 Cri.L.J. 65 the Court observed that in absence of the original record it is not possible 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. 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.

7. In Bhunda and Others Vs. State of U.P., 2002 Cri.L.J. 3898, the Court observed and held as under : ‘‘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 3 CRLA No. 2415 of 1985 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 witness 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 statement 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.

10. The above case of Division Bench was further relied on by subsequent Division Bench in the case of Ram Nath v. State, 1982 All Cri C 128.

11. In the instant case the report of the Sessions Judge, Jhansi shows that reconstruction of record was not possible despite of all attempts taken in this regard. this Court, therefore, is not in a position to confirm the conviction recorded by the trial Court.

12. So far as the question of ordering retrial is concerned the occurrence in this case took place as late as on 20-5-1975 i.e. as far back as 26 years. In such situation it will not be justifiable to direct retrial. In this view of the matter, I have no option but to allow the appeal and set aside the conviction and sentence of the appellants."

8. In Laukush and Another Vs. State of U.P., 2013 (7) RCR(Cri) 493, the Court observed and held as under :

9. In the absence of original record, since reconstruction is not possible, remanding the appeal back for retrial will not serve any useful purpose at all.

10. From the impugned judgment, it transpires that the incident had occurred on 8.6.1979, more than 30 years ago and the appellants were released on bail in the year 1982 by this Court.

11. Since reconstruction of the record is not possible, we apply the decision of the Apex Court in State of U.P. Vs. Abhai Raj Singh (2004) 4 SCC 6, wherein the Hon'ble Apex Court has been pleased to observe as under :- "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 judgment shall operate and the matter shall stand closed."

12. In view of the aforesaid, we allow both the appeals and the impugned judgment of conviction and sentence of the appellants are hereby set aside and they are set at liberty and are acquitted of the charges. The appellants are on bail, they need not surrender. Their bail bonds and surety bonds are discharged."

9. Keeping in view the aforesaid pronouncements, in the instant case it 4 CRLA No. 2415 of 1985 may be stated that as per report of the In-charge Record Room, District Court, Mirzapur, record of trial court has been weeded. Reconstruction of the record is not possible as even the statements of the prosecution witnesses are not available. At this point of time, retrial is neither possible nor feasible. This appeal is pending since last 40 years. In view of attending facts and circumstances, particularly considering the fact that this appeal is pending since the year 1985 and that the appellant was sentenced to three months rigorous imprisonment along with fine of Rs. 300/- under section 3/7 of E.C. Act, there is no justification to keep this matter pending. Considering the legal position on the point that where trial Court record is weeded out and reconstruction is not possible and even retrial is not possible, particularly the law laid down by the Apex Court and by the Division Bench of this Court in above referred cases, this court is left with no option but to decide the appeal as per the settled law and therefore, the appeal has to be allowed.

10. The appeal is accordingly allowed. The impugned judgment and order dated 29.08.1985, by which the appellant Devi Charan was convicted, is hereby set aside. The appellant is acquitted of the charges levelled against him. The appellant is on bail and thus, no further order is required.

11. Appeal is allowed in above terms.

12. Copy of this judgment be sent to the court concerned forthwith. August 28, 2025 Anand (Raj Beer Singh,J.) ANAND VERMA High Court of Judicature at Allahabad