- (1.) UNDER challenge in this petition is the order dated 21.01.2013 passed by the learned Additional District Judge, Court No.3, Faizabad, in S.T. No.1082 of 1996 (State ] Harihar Pathak & Others) whereby the Application No.87 -A of the petitioners was rejected. Brief facts giving rise to present controversy, as transpires from the perusal of the impugned order and the copy of the application annexed with this petition, are that the petitioners were facing trial for the offence under Sections 302/34, 307/34, 504 and 506 I.P.C., Police Station Kumarganj, District Faizabad, arising out of Case Crime No.258 of 1996. The case was committed to the court of Sessions. During course of trial after recording the evidence of several witnesses, the record of the case was lost. Hence, the reconstruction of the file was ordered and learned Additional District Judge, Court No.9, under the directions of the District Judge, got the file reconstructed and the reconstruction of the file was approved by the learned District Judge and thereafter the file was sent to the court concerned for trial at the stage of recording of the statement under Section 313 Cr.P.C. In that court an application was moved on behalf of the accused -persons on the ground that the file was not reconstructed properly. The reconstructed documents and evidence of witnesses is against the provisions of Sections 275, 276 & 278 Cr.P.C. and Sections 65, 67 of Evidence Act. The trial court after considering the entire matter rejected the application, hence the instant petition.
(2.) SUBMISSION of the learned counsel for the petitioners is that there is no provisions for reconstruction of the record and no rules have been framed therefore. It is further submitted that unauthenticated statements of witnesses were taken on record and were wrongly reconstructed. As such the file cannot be treated to be reconstructed. It was further mentioned in the application that all the witnesses of facts are still alive, therefore, the intention of the applicants was to get their evidence recorded a fresh. Learned A.G.A. has opposed the prayer and has stated that there is no illegality in the impugned order and the file was reconstructed with the consent of the learned counsels for both the parties. The documents were admitted by the counsels to be correct and accordingly the reconstruction of the record was approved. Therefore, there is no illegality in the impugned order. It is further submitted that the violation of sections of Cr.P.C. and Evidence Act which the petitioners are alleging do not come into play in the present matter. Admittedly, in the Cr.P.C. there is no provision for reconstruction of the record nor any rules have been framed therefor. But the reconstruction of the record is done on the administrative side. Hon'ble the Apex Court in the case of State of U.P. Versus Abhai Raj Singh and Another reported in [2004 (50) ACC 691] in para 11 has directed as under: - "The High Court shall direct reconstruction of the record within a period of six months from the date of receipt of our judgment from all available or possible sources with the assistance of the prosecuting agency as well as the defending parties and their respective counsel. If it is possible to have the records reconstructed to enable the High Court itself to hear and dispose of the appeals in the manner, engaged under Section 386 of the Code, rehear the appeals and dispose of the same, on their own merits and in accordance with law. If it find that reconstruction is not practicable but by ordering retrial interest of justice could be later served -adopt that course and direct retrial -and from that stage shall take its normal course. If only reconstruction is not possible to facilitate the High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the Sessions Court is also rendered possible due to loss of vitally important basic records -in that case and situation only, the direction given in the impugned judgment shall operate to the matter shall stand closed."
(3.) THE Hon'ble Apex Court has also issued directions to this Court that all efforts should be made for the reconstruction of the record. Therefore, there is no need for any separate rules for reconstruction of the record. Before proceeding further it is necessary to quote the section which the learned counsel for the petitioners has mentioned in his application: - "275, Record in warrant -cases: - (1) In all warrant -cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court appointed by him in this behalf: Provided that evidence of a witness under this sub -section may also be recorded by audio -video electronic means in the presence of the advocate of the person accused of the offence. (2) Where the Magistrate causes the evidence to be taken down, he shall record a certificate that the evidence could not be taken down by himself for the reasons referred to in sub -section (1). (3) Such evidence shall ordinarily be taken down in the form of a narrative, but the Magistrate may, in his discretion take down, or cause to be taken down, any part of such evidence in the form of question and answer. (4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record. 276, Record in trial before Court of Session : - (1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding judge himself or by his dictation in open Court or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. (2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding judge may, in his discretion take down or cause to be taken down, any part of such evidence in the form of question and answer. (3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record. 278, Procedure in regard to such evidence when completed: - (1) As the evidence of each witness taken under Section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. (3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands. 63. Secondary Evidence : Secondary evidence. Secondary evidence means and includes - - (1) certified copies given under the provisions hereinafter contained; 1 (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it. Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. 1. See s. 76, infra. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine - copy of the original, is secondary evidence of the original. Section 65 The Indian Evidence Act, 1872 65. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases: - - (a) when the original is shown or appears to be in the possession or power - - of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[ India] to be given in evidence; 2[1. Subs. by Act 3 of 1951, s. 3 and Sch., for" the States". 2. Cf. the Bankers' Books Evidence Act, 1891 (18 of 1891 ), s.4. (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 67 -Proof of signature and handwriting of person alleged to have signed or written document produced - If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Sections 275, 276 and 278 applies when the evidence is recorded. Sections 275, 276 and 278 has no role to play in the present controversy because it is not the case of the petitioners that due procedure was not adopted while the evidence was recorded initially. But the challenge is to the effect that the record has not been properly reconstructed. Sections 63, 65 and 67 of the Evidence Act have also no role to play because it is not a case of recording secondary evidence but the question relates to the reconstruction of the record. It transpires from the record and the application move by the accused persons that the record was reconstructed with the help of the counsels for both the parties and at the time of the reconstruction both the parties had testified the record to be true on the basis of which learned Additional Sessions Judge, who was entrusted with the work of reconstruction, has reconstructed the record and submitted it to the learned Sessions Judge for its approval. After approval of the learned Sessions Judge the file stood reconstructed. It has nowhere been mentioned in the entire application that which part of the statement of the witnesses, so reconstructed, is false or incorrect. Impliedly, a request has been made for retrial of the case. The occurrence of this case relates to the year 1996 meaning thereby more than 17 years have elapsed after the aforesaid incident. In the case of Aziz Khan Versus State of U.P., reported in (IXXX) 1992 ACC 223, it has been held by this court that in the event the reconstruction of record is not possible retrial should not be ordered after a gap of about 11 years. Therefore, there is no question of directing retrial or re -recording the evidence of the witnesses again, in the background that the record has already been reconstructed. These arguments are being raised simply to further delay the trial. This Court in the case of Satyendra Kumar Singh and Others Versus State of U.P. reported in 2007 (2) ACR 2244 has held that if the reconstruction of the record is not possible accused cannot be convicted. It impliedly means that all efforts should be made for reconstruction of the record and only when it is impossible to reconstruct the record only then acquittal can be ordered. In the case of Abdul Waheed and Others Versus State of U.P. reported in 2005 (2) ACR 1880 (). The appeal was heard after reconstruction of the record and the accused persons were convicted by this Court. In that case an objection was raised to the effect that reconstruction is inadmissible in evidence for the reason that there is no explanation as to from what source the reconstruction has been made. It was further submitted that there is no certainty or even positive information about the authenticity or genuineness of the reconstructed record. Reconstructed record is also not complete and the site plan and some other documents are still missing. This Court following the verdict of the Hon'ble Apex Court in the case of Abhai Raj Singh (Supra), while dealing with this aforementioned objections has held as under: - "17. It is not possible to reach any such conclusion on consideration of the report of the then District and Sessions Judge, namely Sri K.D. Rai, dated 10.09.1999, whereby he transmitted the reconstructed record and from the subsequent report of the succeeding District and Sessions Judge. Rather it is manifest that the record has been reconstructed by collecting material from the sources where it could be available. As we said above, Mushtaq Khan son of the complainant Razzak Khan submitted the copies of the statements of witnesses and certain other papers with his application dated 19.05.1999 for the reconstruction of the record. We also note that the learned counsel for the Appellants has not been able to point out any mistake or inaccuracy in the reconstructed record. Nor has any inaccuracy been pointed out in the facts recorded by the trial court in its judgment dated 31.03.1981, which is impugned in this appeal. Indeed, the accused could have produced their own copies of the statements of witnesses supplied to them by the trial court and other documents during committal proceedings. By doing so, they could show inaccuracy (ies), if any, in the statements of the witnesses and other documents sent by the District and Sessions Judge in the form of reconstructed record. They did not do anything of the kind and simply want to take advantage of unsubstantiated contention that the reconstructed record is inadmissible." ;