- (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. We have examined the re-constructed record and on perusal thereof, we are of the opinion that the conviction of Aziz Khan as ordered by the learned Sessions Judge cannot be sustained even on merits. The case of the prosecution, as disclosed in the statement of PW 1, Jhandu Khan, in short, is that all the accused as well as complainant belong to village Dohns. Injured Nabi Sher is cousin and injured Dafedar is nephew of complainant Jhandu Khan. Alam Khan - deceased was his distinct cousin. All the accused are also related inter se. It is alleged that at the time of incident, proceedings under Section 107/116, Cr PC were going on between the parties, Smt. Raibi, who was aunt of accused Kamal Khan, had sold her 56 bighas land to Suleman Khan and Mian Khan etc. , regarding which objection had been riled by Kamal Khan. It is alleged that at the time of incident, proceedings under Section 107/116, Cr. P. C. were going on between the parties. Smt. Raibi, who was aunt of accused Kamal Khan, had sold her 56 bighas land to Suleman Khan and Mian Khan etc. , regarding which objection had been filed by Kamal Khan. It is alleged that some litigation was going on and mutation had not taken place. But Suleman Khan and Mian Khan were in possession over the said land. The vendees gave the aforesaid land to the complainant Jhandu Khan and Nabi Sher and others on Batai and they were cultivating the same for about a year. This fact was not relished by the accused. They started having a grudge and in consequence thereof proceedings under Section 107/116, Cr PC were started between the parties. At about 7-30 or 7-45 a. m. on 15-10-1976, the complainant Jhandu Khan was going towards east when he heard some alarm. He saw that 6 accused, namely: Sayeed Khan, Wali Khan, Nabi Husain, Ali Husain, Asghar Khan and Ali Ahmad in who were all armed with lathis were assaulting Nabi Sher towards south of field of Kamal Khan. On hearing his alarm, Dafedar Khan, Usman Khan, Alam Khan and Mohd. Sayeed Khan came on the spot and all of them asked them not to assault Nabi Sher. Meanwhile, in accused Aziz Khan, Tasawwar Khan and Maley Khan, all armed with pistols and Kamal Khan armed with gun came from north-eastern side and fired from their respective weapons. The pistol fire hit the complainant Jhandu Khan and Dafedar Khan and firing done by Kamal Khan hit Alam Khan who fell down and died on the spot. Thereafter, the accused ran away towards east. The complainant then went to the Police Station, Bhojipura which is 7 Km. from the place of occur rence and lodged the FIR at 8-30 a. m. on the same day. It is further alleged that Jhandu Khan, Dafedar Khan and Nabi Sher were medically examined in Bhojipura Hospital. After the FIR was lodged PW 5 Surendra Singh, SO ofp. S. Bhojipura came to the spot and started investigation. He prepared inquest report on the body of deceased Alam khan, the actual inquest report was prepared under his dictation by S. I. Dadhich who died subsequently. The SO sent the injured persons for medical examination and also recorded state ments of the witnesses under Section 161, Cr PC. After completing the investi gation, he submitted charge-sheet against all the ten accused persons.
(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. In this case, the prosecution has examined only two eye witnesses, namely PW 1 Jhandu Khan and PW 2 Nabi Sher Khan. The statement of PW 1. Jhandu Khan as given in examination-in-chief, has already been mentioned in the earlier part of the judgment. In the cross-examination he has stated that field in which incident took placs belongs to Suleman Khan and the same was in his possession for the last one year. He further stated that he had not seen any Revenue record, but Smt. Raibi had told him about 5 years back that Suleman had purchased the said plot and he was owner thereof. He also admitted that the aforesaid land was of joint Khata of Kamal Khan and husband of Smt. Raibi. He also stated that he did not know that proceedings under Section 145, Cr PC had been drawn between Smt. Raibi and Kamal Khan and that he was appointed Supurdar of the plot in question by the Court more than 7 or 10 years back. He further denied the suggestion that the possession was given of Kamal Khan or that Kamal Khan was in possession over the plot in question for more than 10 years. Regarding the factum of incident, he stated that the accused had started firing and they were at a dis tance of 30 paces and more than 3 shots were fired. On being questioned further, he stated that he could not see as to whose pistol shot hit which per son, but he had seen firing done by Kamal Khan hitting the deceased Alam Khan. He also stated that he went to the PS 15-20 minutes after the incident by a cycle. He denied the defence suggestion that he had never been in pos session over the land over which incident took. place or that the same was in possession of Kamal Khan. He also denied the suggestion that the accused Tasawwar and Aziz Khan were sowing in the field when Nabi Sher came arm ed with Lathi and tried to assault them, on which Tasawwar used 'paina' in his self-defence due to which, Nabi Sher. received injuries. He also denied the defence suggestion that Dafedar Khan and Alam Khan reached the spot armed with spears and tried to forcibly dispossess Tasawwar and Aziz Khan and then Aziz Khan fired due to which, complainant's side received injuries. The other eye witnesses, namely PW 2 Nabi Sher Khan has corroborated PW 1, Jhandu Khan and has stated about the prosecution case in his examination-in-chief. In his cross-examination, he stated that he had heard about the sale deed being executed by Smt. Raibi in favour of Suleman 4-5 years back. Initially Smt. Raibi was getting the land cultivated on Batai. After the execution of sale deed, Smt. Raibi had filed a case on the ground that she had not executed any sale deed and had continued to remain in possession and getting the land culti vated on Batai. After the case had been decided in favour of Suleman by the Commissioner's Court, he gave the land to him (Nabi Sher Khan) on Batai. He further stated that patwari had recorded possession of Scot. Raibi he had filed an appeal in Allahabad and she had obtained stay order in the said appeal, which was initially dismissed in default but he was still pending. The Pairvi on behalf of Smt. Raibi was done by the accused Kamal Khan and he had brought the stay order. He denied the suggestion that Smt. Raibi never came in possession over the land and the same was in possession of Kamal Khan for the last 10 years. He also denied the suggestion that he had never cultivated the aforesaid plots. He further denied the suggestion that he was not ploughing the field, but the accused Tasawwar and Aziz Khan were sowing the same. He also denied the suggestion that he tried to assault with Lathi, when Tasawwar used paina in his self-defence, due to which, he received injuries. He further denied the suggestion that Jhandu Khan, Dafedar and Alam Khan came armed with spears and tried to assault and dispossess when Aziz Khan fired causing injuries to the aforesaid persons.;