AZIZ KHAN Vs. STATE OF U P

JUDGEMENT

(1.) G P. Mathur, J. The 10 accused who are respondents in Government Appeal No. 663/78 were prosecuted under Sections 147/148/149/307/302, IPC in Sessions Trial No. 70 of 1977. The learned 1st Additional Sessions Judge, Bareilly by judgment and order dated 17-11-1977 convicted Aziz Khan under Section 304, Part T, IPC and sentenced him to undergo 10 years R. I. and other 9 accused were acquitted. Against his conviction, Aziz Khan has filed Criminal Appeal No. 2742 of 1977 while as the State has filed Government Appeal No. 663 of 1978 against the acquittal of 9 accused from all the charges as well as acquittal of Aziz Khan under Sections 148/149/307/302, IPC. Both the appeals are connected and are being disposed of by a common order.

(2.) THE record of this case was burnt on account of fire in the Record Room in the district Court at Bareilly. By the order dated 16-12-1982 passed by this Court, Sessions Judge, Bareilly was directed to reconstruct the record. THEreafter, file of the case has been reconstructed on the basis of uncertified copies of statements of witnesses and typed copies of some judgments which were produced by the complainant Jhandu Khan. THE record is still incomplete as the copy of the FIR, post-mortem report, injury reports of the injured and copies of the documents which had been filed by the prosecution and defence and which had been exhibited are not on record. Under sub-section (2) of Section 385, Cr PC. It is obligatory on the part of the Appellate Court to peruse the record before deciding the appeal against an order of conviction. THE Appellate Court cannot affirm the conviction of an accused unless it peruses the entire record. This court has held that where record has been lost or destroyed and it is not possible to reconstruct the record, it will not be just or proper to direct the retrial of the case if a long gap has elapsed since the commission of the offence. In Sita Ram and others v. State, 1981 Cr LJ 65, a Division Bench of our court has held as follows: "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 hearing of the appeal. If the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the pro per 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. Where, however, the matter comes up for consideration after a long gap of years as in the instant case, it would neither be just nor proper to direct retrial of the case, more so when even copies of First Information Report and statements of witnesses under Section 161, Crpc and other relevant papers have been weeded out or are otherwise not available. " In Ram Nath v. State, 1981 All Cr R 431, another Division Bench of our court took the same view that where material available on record was not sufficient to dispose of the appeal on merits and it was not possible to recons truct the record, no order for retrial should be passed, if incident had taken place long back. In this case, the court took the view that as the incident had taken place 11 years back, it was not proper to direct retrial and the appeal of the accused was allowed and they were acquitted. In the case in hand, the occurrence had taken place on 15-10-1976 i. e. 15 years back and the complete record has not been reconstructed. Applying the principle laid down in the above-mentioned authorities, we are of the opinion that the appeal of Aziz Khan should be allowed and his conviction and sentence should be set aside and the Government appeal against acquittal of the accused-respondents is liable to be dismissed.

(3.) THE prosecution in support of its case, examined in all 5 witnesses, the accused examined one witness, namely DW 1 Akbar Khan and Suleman Khan was examined as Court witness. As stated earlier, learned Sessions Judge has convicted only Aziz Khan under Section 304, Part I, IPC and has acquitted remaining accused.