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Jamuna Chaubey v. State Of U.P. - CRIMINAL APPEAL No. - 2513 of 1981 [2007] RD-AH 17857 (15 November 2007)

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Court No. 49


Criminal Appeal No. 2513 of 1981

Jamuna Chaubey and others Vs. State of U.P.


Hon'ble Shiv Charan J.

The instant appeal has been preferred against the judgement and order of Ist Addl. Sessions Judge Ballia dated 2.11.1981pronouncing in Sessions Trial No. 204 of 1977. By the impugned judgement and order, the learned Sessions Judge convicted the appellants for the offence u/s 148,147,323,307/149 IPC and sentenced to 2 years, one year, six months and seven years RI respectively.

The prosecution story in nut-shell is as follows: Kedar Chaubey along with his brother Ravindra Chaubey were sowing wheat in the plot no.91. Mahendra Chaubey was also present at the field at that time. The incident took place on 24.11.1974 at about 10.30 a.m the appellant-accused Jamuna Chaubey, Kamla Kant Chaubey, Rama Kant Chaubey, Udai Narain Chaubey having inimical relations due to litigation, after forming unlawful assembly reached at the spot. Jamuna chaubey was armed with a lathi, Kamla Kant with gun, Vijai Narain and Uadi Narain with Farsa, Rama Kant and Virendra were also armed with lathi. These accused persons had on arriving at the spot told the complainant and others that first got done the measurement of the field and then sow the wheat. The complainant replied that the plot is bounded so they are sowing the wheat on the plot. Jamuna Chaubey told that complainant is talking unnecessarily and they would not be correct unless beaten. On his exhortation the accused persons started beating the complainant, his brother Rajendra Chaubey and Mahendra Chaubey to cause his death by means of spear and lathi and gun. Kamla Kant wanted to open fire but complainant caught the same from back side as a result of which the butt of the gun was broken and due to this reason fire could not be opened. Rest of the accused persons caused injuries by their weapons. After arrival of the witnesses Ram Sumer Mishra and Jagpat Chaudhary accused persons fled away from the spot.

The investigation was entrusted to SI Tirath Raj Upadhyay who visited at the spot ,prepared site plan of the place of incident, recorded the statement of the witnesses and submitted charge sheet.

The prosecution in support of the allegation examined Kedar Nath Chaubey P.W.1,Rajendra Chaubey P.W.4, Jagpat P.W.5 as witnesses of the fact of the incident. Dr. Abdul Haleem P.W.2 is the Radiologist and proved the X-ray report. Dr. N.B.L. Srivastava P.W.3 conducted the medical examination and proved the injury report. Tirath Raj Upadhyay I O had retired and died prior to recording the statement,hence he could not be examined.

Accused persons u/s 313 Cr.P.C. denied the prosecution version and contended that they have been falsely implicated.

I have heard Sri Surendra Pratap Singh learned counsel for the appellants and learned A.G.A. for the State and perused the entire material on record..

It is material to mention that during pendency of appeal Jamuna Chaubey, Rama Kant Chaubey and Vijai Narain Chaubney had died and their case ordered to be abated. At present only Kamla Kant Chaubey, Virendra Chaubey and Udai Narain Chaubey are alive. It has been argued by learned counsel for the appellants that in the present case the original record is not available and in the absence of original record it is not proper and possible to decide the appeal on merits. Because for deciding the appeal the appreciation of statements of the witnesses is essential and when the statement of the witnesses are not before the Court hence the same cannot be appreciated and without appreciating and considering the statement of the witnesses merely on the basis of the judgement of the trial court the appellant cannot be held guilty and appeal also cannot be affirmed. It is a fact that in view of the report of the Sessions Judge Ballia dated 16.3.2007 effort was made for reconstruction of the file but in spite of the making best efforts the file could not be reconstructed as the matter is very old. Hence it is a fact that at present file is not available and the same cannot be reconstructed. Under these circumstances appellant's counsel cited 2001(43)ACC167Bhunda and others Vs. State of U.P.ACC 2000(1) page 1003 High Court Allahabad and ACC 1982(19) page 128 Ram Nath Vs. State. In this judgement reliance was placed on a Division Bench judgement of this Court in Sita Ram and others Vs. State of U.P. And it has been held by the Division Bench as under:

" 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. If the time lag 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 re-trial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses, where, however, the matter comes up for consideration after a long gap of years as in the instant case, it would neither be just nor proper to direct re-trial of the case."

In view of this judgement it is not justified and permissible according to law to affirm the conviction of the appellants on the basis of the judgement. If it is not possible to reconstruct the record which has been destroyed then retrial be ordered. As I have stated above in the present case reconstruction of the record not at all possible in view of the report of the learned Sessions Judge and so far as regards the matter of retrial in view of this judgement, the time lag between the date of incident and the date on which the appeal comes up for hearing is material. If the time is short then it will be proper course to direct for retrial of the case. Because in that situation normally the witnesses would be available and would not cause undue strain on the memory of the witnesses. But where there is a long gap of years then it is not just and proper to direct the retrial of the case. In the present case the incident took place in the year 1974 about 33 years earlier. Hence there is a long gap in the date of the incident and date for consideration of the appeal. Hence it will not be possible to direct retrial and there is every possibility of the witnesses might have passed away. Considering the long gap I think it proper that it will be appropriate and proper to allow the appeal and set aside the order of conviction because retrial is futile exercise.

For the reasons mentioned above, as the record of the trial court had been weeded out and could not be reconstructed in spite of the best efforts in view of the report of the Sessions Judge and having into consideration the long gap in between the date of incident and date of consideration of appeal it is not at all possible to direct retrial of the case and there is no option except to allow the appeal and set aside the order of conviction.

The appeal is allowed. The order of conviction and sentence is set aside. The Court concerned shall act accordingly.




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