Allahabad High Court
Bharat And Others vs State on 7 March, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:33644-DB
Court No. - 43
Case :- CRIMINAL APPEAL No. - 437 of 1984
Appellant :- Bharat And Others
Respondent :- State
Counsel for Appellant :- Narendra Kumar,Rakesh Chaturvedi
Counsel for Respondent :- D.G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
1. This appeal has been filed against the judgment and order dated 9.2.1984 passed by VIIIth Additional Sessions Judge, Allahabad, in Sessions Trial No. 203 of 1983, under Section 302 IPC, Police Station Colonelganj, District Allahabad.
2. The order-sheet dated 26.8.2019 reflects that as per the report of the Chief Judicial Magistrate, Varanasi dated 2.1.2016, appellant no.2-Bhairav S/o Tunni Lal died on 11.1.2013, as such the appeal stand abated in respect of appellant no.2-Bhairav S/o Tunni Lal.
3. On 10.12.2024 the following order was passed:
"1. There is a report dated 28.07.2023 sent by the office of the District Judge, Pryagraj, after looking into the records, that reconstruction of the records was not possible.
2. Whether retrial is possible after contacting the accused and the informant, be also reported.
3. List this case on 06.01.2025."
4. From the above noted order, it is clear that the reconstruction of the record is not possible, however, it was directed that the notice be issued to the accused and informant to ascertain as to whether retrial is possible or not.
5. Office has submitted its report dated 6.1.2025, based on the report of the District Judge, Prayagraj, according to which notices were given to the informant and alive appellants, Bharat and Radhey Shyam and witnesses of the cases, but no record or any document has been provided by them, as such retrial is not possible.
6. We have gone through the report dated 4.1.2025 given by the District Judge Prayagraj as well along with the aforesaid communication report dated 3.1.2025 submitted by the Additional District Judge/F.T.C., Court No. 1, Prayagraj in Enquiry No. 2 of 2020. According to which the statement of as many as five witnesses have been recorded and it was found that reconstruction of the record and retrial is not possible.
7. In such view of the matter, it is quite clear that neither reconstruction of the record nor retrial in the case is possible.
8. We have considered the identical issue as to whether in absence of trial court record appeal can be decided or retrial is possible after a long gap of time in Mauji Lal Vs. State 2022 (119) ACC 522 (DB) wherein entire case law including judgement of Hon'ble Apex Court in State of U.P. Vs. Abhay Raj Singh 2004 (50) ACC 691 (SC) has also been relied on.
9. In view of the judgment of the Apex Court in the Case of State of U.P. Vs. Abhay Raj Singh (Supra), it is not possible either to get the record of the present case reconstructed or retrial as the record has been weeded out in accordance with law, hence judgment and order 9.2.1984 passed by VIIIth Additional Sessions Judge, Allahabad as regards the accused person cannot be reversed. Hence, in view of above stated position of law when record of the trial court is not traceable and reconstruction or retrial is also not possible, the appeal has to be allowed.
10. The appeal accordingly stands allowed. The impugned judgment and order of the trial court dated 9.2.1984 convicting and sentencing the appellants is hereby set aside and the appellants are acquitted of the charges levelled against them. The accused-appellants, Bharat and Radhey Shyam are on bail. Their personal bonds are cancelled and sureties are discharged.
11. Appeal is allowed in above terms.
12. Copy of this judgment be sent to the court concerned for necessary compliance.
Order Date :- 7.3.2025
M. Tarik
