SOM PAL SINGH AND OTHERSversusSTATE

          HIGH COURT OF JUDICATURE AT ALLAHABAD

                  CRIMINAL APPEAL No. - 2298 of 1986

Som Pal Singh And Others
                                                                   .....Appellant(s)
                                      Versus
State
                                                                 .....Respondent(s)

Counsel for Appellant(s)             : Ramendra Nath Tiwari, Viresh Mishra
Counsel for Respondent(s)            : A.G.A.

Court No. - 78
                 HON'BLE NAND PRABHA SHUKLA, J.

1. Heard Sri Ramendra Nath Tiwari, learned counsel for the appellants,
learned A.G.A. for the State and perused the record.

2. The present Criminal Appeal u/s 374 Cr.P.C. has been filed against the
judgment and order dated 26.08.1986 passed by IX Additional Sessions
Judge, Moradabad in Sessions Trial No. 62 of 1985 convicting and
sentencing the appellants under Section 304 IPC to undergo R.I. for seven
years and under Section 323 IPC to undergo R.I. for six months.

3. As per office report dated 03.02.2026, District Judge, Moradabad vide
letter dated 02.02.2026, stated that the reconstruction of the file in Sessions
Trial No. 62 of 1985 is not possible as the records were weeded out and after
discussing the issue of reconstructing of records before learned counsel for
both the parties, it is impossible to reconstruct the complete record.

4. In view of the fact, neither reconstruction of the complete relevant record
specially statement of witness is possible nor the retrial for deciding the
appeal. Hence, in view of the judgment of the Apex Court as well as of this
Court in Tej Pal Singh & Others Vs. State of U.P. (Criminal Appeal No.
2402 of 1981, decided on 02.12.2015), there is no option but to allow this
appeal.

5. Sections 384, 385 and 386 Cr.P.C. are reproduced here-in-below.

"384. Summary dismissal of appeal.

(1) If upon examining the petition of appeal and copy of the judgment received under
section 382 or section 383, the Appellate Court considers that there is no sufficient
ground for interfering, it may dismiss the appeal summarily: Provided that-
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                                       2

(a) no appeal presented under section 382 shall be dismissed unless the appellant or
his pleader has had a reasonable opportunity of being heard in support of the same;

(b) no appeal presented under section 383 shall be dismissed except after giving the
appellant a reasonable opportunity of being heard in support of the same, unless the
Appellate Court con- siders that the appeal is frivolous or that the production of the
accused in custody before the Court would involve such inconvenience as would be
disproportionate in the circumstances of the case;

(c) no appeal presented under section 383 shall be dismissed summarily until the
period allowed for preferring such appeal has expired.

(2) Before dismissing an appeal under this section, the Court may call for the record
of the case.

(3) Where the Appellate Court dismissing an appeal under this section is a Court of
Session or of the Chief Judicial Magistrate, it shall record its reasons for doing so.

(4) Where an appeal presented under section 383 has been dismissed summarily
under this section and the Appellate Court finds that another petition of appeal duly
presented under section 382 on behalf of the same appellant has not been considered
by it, that Court may, notwithstanding anything contained in section 393, if satisfied
that it is necessary in the interests of justice so to do, hear and dispose of such appeal
in accordance with law.

385. Procedure for hearing appeals not dismissed summarily.- (1) 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.

(2) 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.

(3) Where the only ground for appeal from a conviction is the alleged severity of the
sentence, the appellant shall not, except with the leave of the Court, urge or be heard
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in support of any other ground.

386. Powers of the Appellate Court. After perusing such record and hearing the
appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and
in case of an appeal under section 377 or section 378, the accused, if he appears, the
Appellate Court may, if it considers that there is no sufficient ground for interfering,
dismiss the appeal, or may-

(a) in an appeal from an order of acquittal, reverse such order and direct that further
inquiry be made, or that the accused be re- tried or committed for trial, as the case
may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him
to be re- tried by a Court of competent jurisdiction subordinate to such Appellate
Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature
and extent, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence-

(i) reverse the finding and sentence and acquit or discharge the accused or order him
to be re- tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature
and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or
proper;

Provided that the sentence shall not be enhanced unless the accused has had an
opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the
offence which in its opinion the accused has committed, than might have been inflicted
for that offence by the Court passing the order or sentence under appeal."

6. A cumulative reading of the above referred three Sections (384, 385, 386)
make it abundantly clear that the appeal is to be decided on merit after
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perusal of lower court record and hearing the appellants or his counsel and
the prosecution if the appeal is not dismissed summarily under Section 384
Cr.P.C.

7. In an authoritative pronouncement reported in AIR 1996 Supreme Court
2439 (1) Bani Singh and Others Vs. State of U.P., Hon'ble Apex Court has
elaborated meaning of Sections 385 and 386 of Criminal Procedure Code
1973 in Para No. 8 of the judgment which is being reproduced hereinbelow:

"Section 385 (2) clearly states that if the Appellate Court does not dismiss the appeal
summarily, it `shall', after issuing notice as required by sub-section (1), send for the
record of the case and hear the parties. The proviso, however, posits that if the appeal
is restricted to the extent or legality of the sentence, the Court need not call for the
record. On a plain reading of the said provision, it seems clear to us that once the
Appellate Court, on an examination of the grounds of appeal and the impugned
judgment, decides to admit the appeal for hearing, it must send for the record and
then decide the appeal finally, unless the appeal is restricted to the extent and legality
of the sentence. Obviously, the requirement to send for the record is provided for to
enable the Appellate Court to peruse the record before finally deciding the appeal. It
is not an idle formality but casts an obligation on the court to decide the appeal only
after it has perused the record. This is not to say that it cannot be waived even where
the parties consent to its waiver. This becomes clear from the opening words of
Section 386 which say that `after perusing such record' the Court may dispose of the
appeal. However, this Section imposes a further requirement of hearing the appellant
or his pleader, if he appears, and the public prosecutor, if he appears. This is an
extension of the requirement of Section 385(1) which requires the Court to cause
notice to issue as to the time and place of hearing of the appeal. Once such a notice is
issued the accused or his pleader, if he appears, must be heard."

8. I 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, in view of above stated position of law when
record of the trial court is not traceable and reconstruction or re-trial is also
not possible, the appeal has to be allowed.
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10. Again in the same case, Hon'ble Apex Court has expressed about various
alternative steps to be taken in the matter of loss of records in Para 10 of the
judgment which is extracted as hereinbelow:

"We, therefore, set aside the order of the High Court and remit the matter back for
fresh consideration. It is to be noted at this juncture that one of the respondents i.e.
Om Pal has died during the pendency of the appeal before this Court. The High Court
shall direct re-construction of the records within a period of six months from the date
of receipt of our judgment from all available or possible sources with the assistance of
the Prosecuting Agency as well as the defending parties and their respective counsel.
If it is possible to have the records reconstructed to enable the High Court itself to
hear and dispose of the appeals in the manner envisaged under Section 386 of the
Code, rehear the appeals and dispose of the same, on its own merits and in
accordance with law. If it finds that re-construction is not practicable but by order
retrial interest of justice could be better served - adopt that course and direct retrial -
and from that stage law shall take its normal course. If only reconstruction is not
possible to facilitate High Court to hear and dispose of the appeals and the further
course of retrial and fresh adjudication by Sessions Court is also rendered impossible
due to loss of vitally important basic records - in that case and situation only, the
direction given in the impugned judgment shall operate and the matter shall stand
closed. The appeals are accordingly disposed of."

11. In a similar case where Trial Court record was not available and
reconstruction of record did not succeed, a division Bench of this Court has
in the case of Sita Ram and others Vs. State, 1981 Crl.L.J 65, made
observation in Para 11 which is quoted herebelow:

"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 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. Copies of F.I.R., statements of witnesses under
Section 161 Cr. P.C. reports of medical examination etc. would also be normally
available if the time gap between the incident and the order of retrial is not unduely
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 F.I.R. and statements of witnesses under Section 161 Cr. P.C. and other
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relevant papers have been weeded out or are 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."

12. In the above referred case of Sita Ram (supra) the division Bench
acquitted the accused in view of the fact that the lower court record could
not be reconstructed. This aspect of Sita Ram case (supra) was again
considered by another division Bench of this Court in the case of Ram Nath
Vs. State 1982 (19) ACC 128 (decided on 3.11.1981) wherein also
following observations were made:-

"After making the aforementioned observations and in view of the fact that the court
was not in a position to have the record of the case re-constructed, the Bench directed
acquittal of the accused in that case. The principle laid down in Sita Ram's case fully
applies to the facts of the present case. As all attempts to have the record re-
constructed have failed, this Court is not in a position to affirm the conviction
recorded by the trial court. So far as the question of ordering a re-trial is concerned,
we find that in the instant case the incident in connection with which the accused were
prosecuted, took place as far back as 13th of September, 1970, that is, more than
eleven years earlier. In such circumstances it will not be desirable to direct a re-trial.
In this view of the matter we have no option but to allow Criminal Appeal No.857 of
1976 and to set aside the conviction and sentence of Ram Nath and to acquit him of
the offence with which he has been charged."

13. In similar circumstances another Division Bench of this Court in the case
of Brahmanand Shukla Vs. State of U.P., 2010 (69) ACC 749 made
following observations in Para 10:-

"In the present case, as we have mentioned in the earlier part of the judgment only a
copy of the Trial Court's judgment is available and no other documents like FIR, post-
mortem report, copies of the documents which had been filed by the prosecution and
were exhibited during trial, the statement of the witnesses recorded under section 161,
Cr.P.C. are available despite various attempts to reconstruct the record. The incident
is of the year 1979 i.e., the incident took place about 30 years back. In these
circumstances, no fruitful purpose would be served by ordering retrial as the same
cannot be conducted at all in absence of these documents.

In the light of the above discussions and circumstances mentioned above, we have no
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other alternative but to allow the appeal, set aside the conviction and sentence of the
appellant and to acquit him."

14. In similar circumstances another Division Bench of this Court in the case
of Sita Ram and Others Vs. State, 1981 Cr.L.J. 65 made following
observations in Para 12 and 13:-

"12. In the present case the incident took place on 23-8-1971. The appellants were
convicted by the Sessions Court by an order dated 18-11-1974. The appeal has been
pending in this Court for about six years. We are informed that copies of the First
Information Report and statements of witnesses recorded under Section 161, Cr. P.C.
have been weeded out and are not available. All attempts to reconstruct the record
have proved futile. In such a situation it is not permissible for us to affirm the order of
conviction of the appellants, since in the absence of the record we cannot possibly feel
satisfied that the appellants have been rightly convicted. Due to lapse of time and non-
availability of papers like First Information Report, statements under Section 161,
Criminal Procedure Code etc, we do not consider it either just or expedient to order
retrial of the case.

13. In the circumstances the appeal is allowed. The order of the court below
convicting and sentencing the appellants is set aside and they are acquitted. They are
on bail. They need not surrender. Their bail bonds are discharged."

15. In similar circumstances another Division Bench of this Court in the case
of Kesari and Others Vs. State of U.P. [1988 JIC 355] made following
observations in Para 3 and 4:-

"3. Under these circumstances, the lower court's record could not be obtained and
without the same, the appeal cannot be heard on merits. It appears that the re-
construction of the record is also not possible, in-as-much as original documents have
all burnt out.

4. Under these circumstances, both the appeals stand allowed and the conviction of
the appellants and sentences awarded to them are hereby set aside. They are on bail.
They need not surrender. Their bail bonds and sureties shall stand discharged."

16. In view of the aforesaid discussions, considering the judgments of
Hon'ble the Apex Court and of this Court, since in spite of best efforts,
neither reconstruction of record is possible nor re-trial is possible, hence, the
criminal appeal cannot be decided on merit in absence of relevant
prosecution papers including the statement of witnesses and as such, there is
no option but to set aside the impugned judgment of conviction.
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                                    17. In view of above, judgment and order of conviction dated 26.08.1986
                                    passed by IX Additional Sessions Judge, Moradabad, is hereby set aside.

                                    18. Accordingly, the present Criminal Appeal stands allowed.

                                    April 7, 2026
                                    Shivani Sri.
                                                                                    (Nand Prabha Shukla,J.)




Digitally signed by :-
SHIVANI SRIVASTAVA
High Court of Judicature at Allahabad