Full Judgment
M.C. Jain, J.
1. This revision has been filed by the applicants against the judgment and order dated 14-10-1983 passed by the Special Judge (E.C. Act), Allahabad in Criminal Appeal No. 108 of 1983. It was admitted as back as on 22-11-1983. They were convicted in Criminal Case No. 997 of 1981 by the Judicial Magistrate III, Allahabad under Sections 323 and 325, I.P.C. Each of them was sentenced to undergo rigorous imprisonment for three months under Section 323, I.P.C. and rigorous imprisonment for one year under Section 325, I.P.C. Both the sentences were to run concurrently. Aggrieved, they preferred the aforesaid appeal. The Appellate Court allowed the appeal and set aside the conviction and sentences passed against them. The case was remanded to the Magistrate for retrial in accordance with law. It was directed that other evidence could also be recorded as per observations made in the body of the judgment whereafter the statements of the accused could be recorded under Section 313, Cr.P.C. In the body of the judgment, it was observed that the injury reports had not been proved and it was also not proved that the injury of Ram Prasad was grievous. The Magistrate was found to have allowed secondary evidence illegally. It was in this view of the matter that the case was remanded for retrial, permitting the production of additional evidence.
2. The contention of applicants/accused in this revision is that the Appellate Court exceeded its jurisdiction by permitting the prosecution to fill up the lacunas at the retrial. It has been contended that the Appellate Court committed an illegality by remanding the case back to the trial Court and for recording further additional evidence.
3. Learned counsel for the applicants and the learned A.G.A. for the respondent have been heard. In this case, the record of the Lower Court was summoned, but it has been reported by the Courts below that the same was weeded out as per General Rules (Criminal). On 19-3-1999, this Court directed for the reconstruction of the record of the case, but it has been reported by the District Judge, Allahabad that the reconstruction of the record has not been possible in spite of best efforts. What is available is only the copy of the judgment of the Magistrate and that of the Appellate Court. The incident in this case took place on 22-8-1980 viz., nearly 19 years back.
4. It has been argued by the learned counsel for the applicants that as the record of the Lower Court is not available because of having been weeded out, the revision should be allowed and they should be acquitted. A reference has been made to the case of Aziz Khan v. State of U.P. 1992 ACC 223. It was held in the said case that where record has been lost or destroyed and it is not possible to reconstruct the record, it will not be just and proper to direct the retrial of the case if a long gap has been elapsed since commission of the offence. In that case occurrence had taken place nearly 15 years back and the complete record had not been reconstructed. In this Division Bench decision, the reference was made to the case of Sita Ram v. State 1981 Cri LJ 65. That was also Division Bench decision where it was held as under (at pages 66-67) :
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 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 retrial 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 retrial of the case, more so when even copies of First Information Report and statements of witnesses under Section 161, Cr.P.C. and other relevant papers have been weeded out or are otherwise not available.
5. Another Division Bench had taken the same view in the case of Ram Nath v. State 1981 All Cr R 431, that material available on record was not sufficient to dispose of appeal on merits and it was not possible to reconstruct the record, no order for retrial should be passed, if the incident had taken place long back. In that case the incident had taken place 11 years back.
6. All the above referred Division Bench rulings related to criminal appeals. But it makes no difference that the instant matter is a criminal revision for decision before this Court. The analogy of the above referred rulings would apply with equal force to a criminal revision like the present one. The record of the case has been weeded out in entirety and retrial of the case as directed by the appellate Court below is not at all possible. Indeed, the present applicants are not to be blamed for this state of affairs.
7. In view of what has been discussed above, this revision should be allowed. Accordingly, this revision is allowed. The judgment and order for remand of the case for retrial passed by the Lower Appellate Court on 14-10-1983 are set aside. The conviction and sentences passed against the applicants are set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.