Ram Dhani & Ors. v. State

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

#1. The appeal is of the year 1989.

#2. Sri Pravesh Kumar Pandey, learned counsel for the appellants has sent an illness slip.

#3. The present appeal has been filed by the accused-appellant who has been convicted and sentenced vide judgment and order dated 8.12.1989 passed by IXth Additional Sessions Judge, Varanasi in S.T. No. 174 of 1988, under Section 302 I.P.C., Police Station - Badagaon, District - Varanasi.

#4. We have seen the office report, on 11.11.2024, the following order was passed: "As per the report of the District Judge Varanasi dated 9.6.2023, 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, Varanasi 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."

#5. On 10.12.2024, the following order was passed: "As per the office report dated 07.12.2024, which is based on the report of District Judge, Varanasi dated 06.12.2024, it has been stated that the records of the case are not available in the office and retrial of the case is not possible. A report be sent as to whether the retrial of the case is possible or not after the first informant and accused are contacted. List this case on 07.01.2025."

#6. On 7.1.2025, the following order was passed: "1. The present appeal is of the year 1989.

#2. On 11.11.2024, the following order was passed: "As per the report of the District Judge Varanasi dated 9.6.2023, 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, Varansi 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."

#3. Pursuant to the aforesaid order, District Judge, Varanasi has submitted a report according to which, appellant no.1 Ram Dhani is alive and he does not have the relevant documents and appellant no. 2 Deo Nath and appellant no.3 Ram Dhani @ Langarh are dead. Notice has been sent to the informant Brij Mohan through special messenger and some time is sought to submit further report.

#4. List on 23.1.2025 in the additional cause list.

#5. Office is directed to call for fresh/further report from District Judge, Varanasi."

#7. In compliance of the aforesaid orders, office has submitted a report dated 22.1.2025, which is based on the report of District Judge, Varanasi, according to which, the informant- Brij/Brajesh is dead. The sole surviving appellant- Ram Dhani has appeared and stated that he is not having any document related to trial, therefore, re-trial of the case is not possible.

#8. We have gone through the report submitted by the District Judge, Varanasi.

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

#10. 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.

#11. 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 8.12.1989 passed by IXth Additional District & Sessions Judge, Varanasi 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.

#12. The appeal accordingly stands allowed. The impugned judgment and order of the trial court dated 8.12.1989 convicting and sentencing the appellant is hereby set aside and the appellant is acquitted of the charges levelled against him. The accused- appellant no.1 Ram Dhani is on bail. His personal bond is cancelled and sureties are discharged.

#13. Appeal is allowed in above terms.

#14. 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