The Lucknow Bench of the Allahabad High Court has upheld the acquittal of the sole living accused in a 1984 attempt to murder case.
The Division Bench of Justice Sangeeta Chandra and Justice Ajai Kumar Srivastava-I passed this order while hearing a Government Appeal filed by the State of UP.
By means of the government appeal, the State seeks to assail the order dated 11.03.1987, passed by the IXth Additional Session Judge, Lucknow in Sessions Trial, arising out of Crime under Section 307 I.P.C, Police Station, Alambagh, District Lucknow, whereby the learned trial Court has acquitted the accused-respondents, Phool Chand and Hirdaya Narain of the charges under Sections 307 read with 34 IPC.
The Court noted that the government appeal was filed against two respondents, namely, Hirdaya Narain and Phool Chand. However, the respondent, Phool Chand has died during the pendency of this appeal. The appeal in respect of respondent, Phool Chand has already been abated vide order dated 22.08.2022. Therefore, the appeal survives only with regard to the respondent, Hirdaya Narain.
The prosecution case is that the informant, Chinaji Lal Badhani, was going home from his office on 10.04.84 when he found 10 persons, who were ex-employees of Scooter India Limited, staging a Dharna at the gate of the factory after being dismissed. All the ex-employees, including the accused Phool Chand and Hirdai Narain, nursed a grudge towards the informant. Upon seeing the informant alone, the accused persons, Phool Chand and Hirdai Narain, assaulted the informant with a Danda. The informant sustained injuries on his left hand, right leg and forehead.
On the basis of the written report, a first information report as Crime under Sections 147, 148, 149 & 302 I.P.C came to be registered against all the accused respondents at Police Station, Jethwara, District Pratapgarh.
From a perusal of the impugned judgment and order dated 11.03.1987, it appears that various opportunities were afforded to the prosecution to adduce evidence in support of its case. However, as the prosecution failed to adduce any evidence in support of its case, consequently, the trial Court closed the opportunity of adducing evidence and proceeded to pass the order dated 11.03.1987, whereby, the respondents have been acquitted of all the charges leveled against them as there was no evidence against them.
On the face of it, the Court did not find any perversity with the findings of the trial Court. After affording a reasonable opportunity to the prosecution to adduce evidence in support of its case, the trial court proceeded to decide Sessions Trial. In the absence of any evidence to support the prosecution’s case, the respondents were ultimately acquitted by order dated 11.03.1987.
The Court further noted that while admitting the government appeal, the trial court record was summoned. In this regard, the then District and Sessions Judge, Lucknow submitted a report dated 18.07.2022. The report reveals that the entire papers in the form of Natthi-B of the record of Sessions Trial have been weeded out and only the original judgment was available on the record, which was sent to the Court by the then Sessions Judge, Lucknow.
The Court observed that,
Thus, it is clear that for deciding a criminal appeal, it is incumbent upon the appellate court to call for the record of the trial Court and to peruse the same at the time of disposal of such appeal. As such the appeal cannot be decided in the absence of a trial court record.
According to the report of the then District and Sessions Judge, Lucknow dated 18.07.2022, as noted above, in the matter, the trial Court record has already been weeded out and its reconstruction is not possible.
Advertising to the case in hand, we are constrained to observe that the circumstances, which led the trial Court to close the opportunity of prosecution to adduce the evidence leading to the acquittal of the respondents herein cannot be adjudicated by the Court for want of record of trial Court. Even reconstruction of the record of Session Trial is not possible, which is reflected from the report of then District Judge, Lucknow and the officer-in-charge of record room, District Court Lucknow.
This incident took place in the year 1984 and the respondents were acquitted thereafter on 11.03.1987. Thereafter this appeal was filed in the year 1987 and record was called for but record could not be made available to the Court. Efforts were made to get the record reconstructed, however, the same remained unsuccessful. About 36 years have passed since acquittal under challenge. It is a long gap. Since no paper relating to this case is available except the impugned judgement, therefore possibility of retrial at this stage, after a long gap of about 36 years since the occurrence of the incident appears to be bleak.
The Court also noted that as the record of the Sessions Trial was not made available to the Court despite the same having been requisitioned by this Court for the reason that the entire papers of Natthi-B have been weeded out. The report of the District and Sessions Judge, Lucknow as well as report of officer-in-charge record room, District Court, Lucknow make it clear that reconstruction of records of Sessions Trial is also not possible. Therefore, having regard to the judgment rendered by the Supreme Court in Shyam Deo Pandey (Supra) and also having regard to the judgments passed by the Court in Sita Ram (Supra) & Pati Ram (Supra) we are constrained to uphold the order dated 11.03.1987 acquitting the respondents.
The Supreme Court in the case of Chandrappa and others v State of Karnataka, (2007) 4 SCC 415 has held that an appellate court must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. It also held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
Thus, the Court is of the view that the appeal deserves to be dismissed and the same is, accordingly, dismissed by the high court.
“In compliance with the provision contained in Section 437-A Cr.P.C the surviving respondent, Hirdaya Narain is directed to furnish personal bond and two sureties to the satisfaction of the court concerned within a period of six weeks from”, the court ordered.