Chattisgarh High Court

Rajan @ Sarvjeet vs State Of Chhattisgarh on 16 June, 2022

                                    1

                                                                 NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                  Judgment Reserved on : 29/04/2022
                  Judgment Delivered on : 16/06/2022

                         CRA No. 907 of 2000
        Rajan @ Sarvjeet S/o Hiralal Jaiswal, aged about 28 years,
         Occupation Advocates, R/o Piprahi, Aarkshi Kendra
         Balrampur, Tahsil Ramanujganj, Jila Surguja Madhya Pradesh.
                                                       ---- Appellant
                                 Versus
        State of Chhattisgarh, Through : Thana Prabhari, Thana
         Balrampur, Jila Sarguja, Madhya Pradesh.
                                                    ---- Respondent

For Appellant             :     None.
For Respondent/State      :     Ms. Madhunisha Singh, Dy. A.G.


                  Hon'ble Smt Justice Rajani Dubey
                              C. A. V. Order

1. This criminal appeal is directed against the impugned

judgment of conviction and order of sentence dated 30.03.2000

passed by learned 1st Additional Sessions Judge, Ambikapur, District

Surguja (M.P.) (Now Chhattisgarh) in Sessions Trial No.222/1994,

whereby while acquitting accused Chhote @ Shardamani and

Heeralal Jaiswal, convicted accused Rajan @ Sarvajeet under

Section 307 of IPC and sentenced to undergo R.I. for seven years.

2. The instant appeal has been preferred by the appellant herein

on 03.04.2000.

3. After filing of the criminal appeal, the record of the lower

Court was requisitioned and the appellant herein was reported to

be on bail.

4. After carving out the State of Chhattisgarh, the instant

criminal appeal has been received from the erstwhile State of M.P.

This appeal is also related to one Criminal Appeal No.1827/2000,

which has been disposed of by this Court since both the appeals

arise out of same crime No.222/1994. Cr.A. No.1827/2000 was

reported to be not available in the record room when it was called

for listing before the Court. Thereafter, the case was searched in

concerned Section and many requisitions were sent to the

concerned District Court but the same received back with an

endorsement that lower court record of Sessions Trial No.222/1994

has been sent to the High Court of Madhya Pradesh at Jabalpur in

Cr.A.No.907/2000. Thereafter, as per note sheet dated 15.04.2013,

the case was directed to be searched in all the judicial branch of

the Registry but the same could not be traced out and, accordingly,

search report dated 26.07.2017 was filed before the Addl. Registrar

(Judl.). Vide order dated 27.02.2020, Hon'ble The Chief Justice has

been pleased to order for reconstruction of file (Cr.A.No.907/2000).

When the appeal was put up for hearing, an attempt was made to

reconstruct the record in pursuant to the order of Hon'ble the Chief

Justice. Ample opportunities were allowed to the State as well as to

the appellant herein but the record could not be reconstructed. It is

clear from all note-sheets of the Registry and by search report that

record was missing and it could not be reconstructed as required

under Chhattisgarh High Court Rules, 2007. In absence of record,

the question which arises for consideration before this Court is

whether the appeal can be decided on merit and if not what would

be the course to be adopted by this Court.

5. In this regard, Section 385 of Cr.P.C. provides that if the

appellate court does not dismiss the appeal summarily, it shall

cause notice of the time and place at which such appeal will be

heard to be given (i) to the Appellant or his pleader; (ii) to such

officer as the State Government may appoint in this behalf; (iii) if

the appeal is from a judgment of conviction in a case instituted

upon complaint, to the complainant; (iv) if the appeal is under

Section 377 or Section 378, to the accused, and shall also furnish

such officer, complainant and accused with a copy of the grounds

of appeal. Sub-section (2) provides that the appellate court shall

then send for the record of the case, if such record is not already

available in that Court, and hear the parties; provided that if the

appeal is only as to the extent or the legality of the sentence, the

Court may dispose of the appeal without sending for the record.

Section 386 prescribes the powers of the appellate court. That

power has to be exercised after perusing the record and hearing

the Appellant or his pleader or public prosecutor, if he appears.

6. The appellant has a right to show to this Court that the

decision arrived at by the Court below was not supported by the

evidence on record. They can legitimately contend that material

evidence and circumstances have either been ignored or incorrectly

appraised. This right cannot be denied to the appellant. In the

absence of the original record, it is not possible for this Court to

arrive at a decision that the impugned judgment is supported by

the evidence on record and the order of conviction passed and the

sentence imposed on the appellant is legally justified and proper.

In such a situation, two courses are open to the Court : (1) to order

for retrial after setting aside the impugned judgment; or (2) to

acquit the appellant.

7. While dealing with the issue where lower court record went

missing and efforts for reconstruction of record went in vain, the

Division Bench of High Court of Allahabad in the matter of Sita

Ram & Ors. V. State1, held in para 11 as under :-

"On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are of the opinion that 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 the hearing of the appeal. The appellant has a right to try to satisfy the appellate court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time gap between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it could not cause undue strain on the memory of witnesses. Copies of First Information Report, statements of witnesses u/s 161 of Code of Criminal Procedure, reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long.

Where, however, the matter comes up for consideration after a long gap of years, 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 u/s 161 of Code of Criminal Procedure and other relevant papers have been weeded out or are

1 (1981) SriLJ 65

otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State."

8. Reverting to the facts of the present case in the light of

aforesaid judgment in the matter of Sita Ram (supra), in the

instant case also, the incident had taken place on 06.07.1993 and

after undergoing trial for about six years, the appellant was

convicted by the impugned judgment dated 30.03.2000. The

appellant has filed the instant criminal appeal on 03.04.2000, which

is within limitation, however, this appeal could not be disposed of

by this Court in almost 22 years for want of lower court record. It is

also crystal clear that for said delay the appellant is not at fault at

all.

9. Considering the peculiar facts and circumstances of this

appeal as noted above, particularly the fact of time gap of around