- (1.) In these appeals the question of seminal importance which arises is whether in exercise of power under Section 386 of the Code of Criminal Procedure, 1973 (in short 'the Code'), the Appellate Court would be justified in directing acquittal, where the records of the Trial Court are not placed before it on some ground or the other. The Allahabad High Court by the impugned judgment directed acquittal of the accused persons (present respondents) who were appellants before it.
(2.) Background facts need be noticed are essentially as follows : Accused persons faced trial for alleged commission of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). According to prosecution, Shakuntla Devi and Munni Devi were sleeping on the roof of the second storey of their house. Kanti Devi was sleeping on the open roof in front of the southern verandah on the first floor of the house. The main door of the house on the east was closed. There were no other persons in the house because Nathoo Singh and Brij Pal Singh were both in jail being accused of the murder of Jogendra Singh. It is said that these accused belonged to the party of Dafedar Singh who had secured his bail in the case of Gajju Singh's murder, before the present incident in question. The allegation was that the three accused and the deceased accused Jagannath Singh scaled over the uppermost roof of Shakuntla Devi's house from its south western side and reached the place where only Munni Devi and her step mother were sleeping on separate beds near each other. Munni Devi was, in the process, awakened. On hearing sounds, she flashed a torch, in the light of which she saw and recognised all the four accused. She also noticed that Om Pal Singh had a knife about one foot long, while the other three held guns. Abhai Raj Singh immediately fired at the sleeping Shakuntla Devi. Munni Devi raised alarm. Undeterred, Ved Pal Singh and Jagannath Singh also fired shots at Shakuntla Devi, and Om Pal Singh repeatedly stabbed her with the knife. On hearing gun shot sounds villagers arrived and knocked at the main door. The miscreants escaped the way they had come. Kanti Devi opened the door to let in the villagers who saw Shakuntla Devi dead. Munni Devi dictated the FIR Ex. Ka. 1 to her cousin Om Prakash Singh and handed it to village Chowkidar to lodge it. At 4.30 a.m. in the same night it was registered at Bhamora Police Station. The police after recording the FIR, started investigation, arrived at the spot, performed the inquest and sent the dead body for autopsy. After completion of investigation, charge sheet was placed. Accused persons pleaded innocence and faced trial. The present respondents were found guilty, convicted and sentenced as afore-noted. Before commencement of trial accused Jagannath died.
(3.) Two appeals against the common judgment and order dated 23-6-1979 were filed by the respondents Om Pal Singh, Abhai Raj Singh and Ved Pal Singh. After admission of the appeal, registry of the High Court sent for the records from the Trial Court. By letter dated 27-6-1984 the office-in-charge (Record room) Judges Court, Bareilly informed the High Court that the records of the case were not available having been destroyed in the fire that broke out in the night between 18/19-11-1979. Nothing seems to have been done thereafter, though we feel that the registry should have placed the matter before the appropriate Bench for further directions to explore the possibility of reconstructing the records, to effectively dispose of the appeals. Be that as it may, by order dated 1-11-1993 i.e. more then 9 years after the letter was received from the lower Court, 3 months time was allowed for reconstruction of the record at the Sessions Judge level. The High Court while disposing of the appeal on 25-2-1994 noted that no communication had been received about the reconstruction of the record, and inference was therefore drawn that it was not possible for the Sessions Judge to reconstruct the record. It was in this background it was held that the mandate of law contained in Sections 385 and 386 of the Code cannot be complied with and therefore, directed that the appellants were not to be arrested in pursuance to the judgment and order, and were not required to surrender also and the bail bonds were to be cancelled.;