Rajpal & Ors. v. State of U.P

None appears for the appellants. Sri Rajesh Kumar Gupta, learned AGA is present on behalf of the State.

The instant appeal has been filed against the judgment and order date 12.05.1983 in S.T. No. 692 of 1982 convicting and sentencing the appellants under Section 399, 402 IPC and under Section 25 of the Arms Act. The appellants were sentenced to undergo five years, four years and one year rigorous imprisonment for the aforesaid offences. Vide order dated 15.07.1983, the appellants were granted bail. Since then, the instant appeal is pending.

It is reported by learned AGA submits that counsel for the appellants Sri S.P.S. Raghav is no more.

As per the report dated 04.07.2024 received from the Judgeship, Bulandshahar, it is informed that the appellant no.1 Rajpal is not traceable for more than 20 years. Appeallant no. 2 Megh Singh has died 20 years ago and the appellant no.3 Bheema has also died 20 years ago.

In view thereof, out of three appellants, two have already died, therefore, the instant appeal abates against the appellants no.2 and

3. The instant appeal is pending only on behalf of the appellant no.1 whose whereabouts are not also known despite various efforts made by the District Judgeship.

From the repeated reports received from the District Judgeship through the District Judge, Bulandshahar, it has been categorically reported that the lower court record of S.T. No. 692 of 1982 was weeded out and reconstruction thereof is not possible. The availability of the counsel who conducted the trial is also doubtful. With regard to the lost of the record of the instant case, a judicial enquiry was conducted and despite the repeated efforts, reconstruction of record of the trial case is not possible. In State of U.P. vs. Abhay Raj, 2004 (4) SCC 6, the Apex Court has held that once it is found that if the lower court record is not available and neither there is any possibility of reconstruction thereof nor retrial of the case is possible due to lapse of time and death of the accused and witnesses, in such circumstances, the appeal cannot be decided on merits. The only course to this Court is to set aside the order convicting the appellants and dispose of the appeal accordingly.

As per the report received from the District Judgeship, Bulandshahar, the reconstruction of record is not possible nor the retrial.

In such circumstances, no fruitful purpose would be served by keeping this matter pending here specifically when two of the accused have already died 20 years ago.