- (1.) This Criminal Appeal arises from the judgment of the Sessions Judge, Allahabad, dated 16.10.1981 convicting and sentencing the appellants Mohammad Hussain alias Munnoo, Abdul Ghani, Azimullah and Zaheer to imprisonment for life under Sections 302 read with 34 I.P.C. and 3 years' R.I. under Section 307 read with 34 I.P.C. The sentences are to run concurrently. As one of the appellants Azimullah has died and a report to that effect has been received from the C.J.M. Allahabad, his appeal was made to abate by an order dated 22.7.2014. The prosecution case as narrated in the judgment of the Trial Court was that on 30.10.1980 at about 5 p.m., when the deceased Jamil Ahmad had gone to the shop of Bal Govind for purchasing some items in village Dumgarha, then the appellants arrived there. Two of the appellants Mohd. Hussain and Abdul Ghani were armed with guns, whilst, Azimullah was armed with a country made pistol and. Zahir Ahmad was armed with a knife. The accused persons attacked the deceased Jamil Ahmad with their weapons. Shiv Lal, s/o. Bal Govind, who was running the shop in place of his father, was trying to escape, was given a knife blow by the accused Zahir Ahmad on his abdomen. Post mortem on the body of the 60 years old deceased Jamil Ahmad was conducted by Dr. K.P. Sarabhai on 1.1.1981 at 1.30 p.m. The doctor found six abrasions and a number of incised wounds at injuries No. 3, 4, 5, and 13 and three fire-arm wound of entry, which had caused the death of the deceased. Although the injured witness P.W. 2 Shiv Lal, who was a boy of 12 years old at the time of incident, has supported the prosecution case, but in his subsequent cross-examination, he has turned hostile and he has not supported the prosecution story. Litigation between the parties was the motive for this crime.
(2.) However, learned counsel for the appellants did not argue the case on merit. He argued that as the 313 Cr.P.C. statements of the appellants and exhibits were all missing, orders were passed for their reconstruction, but the same could not be reconstructed from the original, which was mandatory for the decision of the appeal in view of Section 386 Cr.P.C. Perusal of the record is essential for deciding an appeal from conviction or even against acquittal, exhibits and 313 Cr.P.C. statement are vital parts of the record, which are missing in this case. The exhibits had been reconstructed or transcribed in the Roman script and do not appear to have been prepared by comparing with the documents in original, as is required under Section 63 and 65 of the Evidence Act. Hence they could not utilize for affirming the conviction of the appellant. He has placed reliance on the judgment in J. Yashoda v. K. Shobha Rani, 2007 5 SCC 730, Sukhlal and others v. State of U.P.,2014 86 ACC 425. The latter was a decision of Division Bench of this Court.
(3.) Learned A.G.A., although, he contended that the findings of the trial Court of conviction are not perverse or unreasonable but he did not dispute the legal position regarding the admissibility of the documents produced (i.e. all the reconstructed documents), which have been made part of the paper books. We find that in this case, as the lower Court's record has been received and also the order was passed calling for the reconstructed record by an earlier Division Bench on 11.8.2008. The reconstructed lower Court's record was received. However, it is noted in the order of the Division Bench on 24.1.2012 that the depositions of P.W. 5, 6 and 7 are not available and that the same could not be reconstructed. The documents do not match, where the exhibit numbers and the statements of the accused under Section 313 Cr.P.C. are also not on record. The Division Bench in the order dated 24.1.2012 directed the District Judge to look into the matter and to make up the deficiencies in 2 months. However, the District Judge reported on 30.3.2012 that the reconstructing authority viz. the Additional District and Sessions Judge, Court No. 16 has submitted a report on 22.3.2012 that after making all possible efforts for reconstruction of the statements of P.Ws. 5, 6 and 7 related to S.T. No. 108/1981, State v. Mohd. Hussain and others, it was not possible to reconstruct the statements. The reconstructing authority had reported that he had directed the in-charge P.S. Handia to produce the accused before him on 2.3.2012. Police Station reported on 1.3.2012 that Azimullah has died. District Magistrate, Allahabad and District Government Counsel (Criminal) were requested to give information of the name of the A.P.O., Government Prosecutor (Criminal) appointed in the year 1981. The Government pleader reported that Sri Rameshwar Sahai was Government pleader between 1979 to 1985 and he had died 20-21 years earlier. The counsel for the accused Mohd. Hussain alias Munnoo, Zahir Ahmad and Abdul Ghani appeared before the reconstructing authority and also stated that the case papers were not available with them. In Sukhlal and others v. State of U.P.,2014 86 ACC 425, a Division Bench of this Court has relied on the Apex Court decision in State of U.P. v. Abhai Raj, 2004 AIR(SC) 3235 and has also relied on the judgment in Sita Ram and others v. State, 1981 CrLJ 65 and Ram Nath v. State,1982 19 ACC 128, Brahmanand Shukla v. State of U.P.,2010 69 ACC 749 and Bani Singh and others v. State of U.P.,1996 33 ACC 677. It has been held in the said decisions that if the Appellate Court does not dismiss the appeal summarily under Section 384 Cr.P.C., it has to give notice under Section 385 Cr.P.C. to the appellant or his pleader as also to the A.G.A. and to call for the record of the case and then hear the parties. The only exception is where the appeal is to the extent of illegality of the sentence. Thereafter under Section 386 Cr.P.C., the Appellate Court must peruse the record, hear the appellant or his pleader and then under Section 386(b) Cr.P.C. in an appeal from a conviction, it can reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by the Competent Court or do other things like altering the finding maintaining the sentence. In Bani Singh , it has been observed that "obviously, requirement to send for the record is provided for to enable the Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the Court to decide the appeal only after it has perused the record." Even in State of U.P. v. Abhai Raj Singh and another , where in the event of the record being lost, a course for reconstruction and of retrial on failure of reconstruction was suggested, but in State of U.P. v. Abhai Raj Singh and another , itself it is mentioned that if vital material is missing, then initiation of a retrial becomes impossible. This view is reiterated in Sukhlal v. State of U.P. as also, in Sita Ram and in Ram Nath . In Brahmanand Shukla , where the incident was of 1979, the Court observed that after 30 years, no useful purpose would be served by ordering retrial and also, the same could not he conducted in the absence of vital documents.;