POONAM SRIVASTAV,J. - (1.) THE instant appeal arises from the judgment and order dated 25.9.1981 convicting the appellant under Section 304 I.P.C. and sentencing him to 7 years R.I. in Session Trial No. 88 of 1981-State Vs. Janardan Singh and another.
(2.) THE entire record of the court below could not be traced out and, therefore, paper book could not be prepared. Several letters for reconstruction of the lower court record failed to yield any result. Several orders as well as letters of the District Judge, Ballia and report of the Chief Judicial Magistrate, Ballia are available on record but the record could not be traced out or reconstructed. No document proved and exhibited are available. The complainant of the case is also reported to be dead in the letter dated 5.10.2007 sent by Sri Virendra Singh, the then District Judge, Ballia. No document is available in the office of S.H.O., Bansdih, District Ballia, therefore, even an order of reconstruction or retrial was fruitless. In the aforesaid letter, it was also apprised that Sri Badre Alam who was found to be the main culprit, has already been punished by deduction of pension of 2% in every case. This appeal pertains to the year 1981 and the incident is also of February, 1981, Police Station Bansdih, District Ballia, therefore, keeping the appeal pending is also of no use.
(3.) SRI P.N. Mishra, Senior Advocate who had filed the appeal on behalf of the appellant Sachita Nand, has placed reliance on a decision of the Apex Court; State of U.P. Vs. Abhai Raj Singh, 2004 S.C.C. (Criminal), 904 where the Apex Court was of the view that acquittal not to be justified if the record of the trial court is destroyed and not made available and, therefore, the Hon'ble Supreme Court was of the view that the acquittal by the High Court in absence of record was improper. The proper course in view of the Apex Court was to direct for reconstruction of the record and then hear the appeal. Learned counsel has placed paragraph 10 of the said decision. Concluding part of the said decision is quoted below: "...........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 envisaged 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 finds that reconstruction is not practicable but by ordering retrial interest of justice could be better served--adopt that course and direct retrial - and from that stage law 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 impossible due to loss of vitally important basic records - in that case and situation only, the direction given in the impugned judgment shall operate and the matter shall stand closed. The appeals are accordingly disposed of." ;