Allahabad High Court
BHOPALversusSTATE OF U.P.
- Decided
- Bench
- VANI RANJAN AGRAWAL
Holding
The conviction was set aside and the appeal allowed because the trial record was unavailable and could not be reconstructed.
Summary
The appellant Bhopal was convicted by the Sessions Court for robbery (IPC s.392) and related offences, based on a police report of a 1981 armed robbery. The High Court learned that the original trial court record, including the charge‑sheet and evidence, could not be located and reconstruction was impossible. Relying on the Supreme Court decision in State of Uttar Pradesh v. Abhay Raj Singh (2004) 4 SCC 6, the Court held that when the trial record is lost and cannot be rebuilt, the appellate court must set aside the conviction. Consequently, the appeal was allowed, the conviction under IPC s.392 was vacated, and the appellant was acquitted. The bail bonds were cancelled and sureties discharged.
Issues considered
- When can a conviction be sustained if the trial court record is lost and cannot be reconstructed?
Legislation cited
- Arms Act — s. 25
- Indian Penal Code — s. 392, 397
Subjects
- robbery
- dacoity
- loss of trial record
- appeal
- conviction set aside
- criminal procedure
- reconstruction of record
- Arms Act
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2425 of 1982
Bhopal
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s) : Dhirendra Kumar Agrahari (Ac), Bipin
Pal Singh
Counsel for Respondent(s) : A.G.A.
Court No. - 93
HON'BLE MRS. VANI RANJAN AGRAWAL, J.
1. This appeal has been filed against the judgment and order dated
25.09.1982 passed by Additional Sessions Judge, Muzaffarnagar in Sessions
Trial No.14 of 1988, convicting and sentencing the appellant under Section
392 I.P.C. to four years rigorous imprisonment.
2. Heard Sri Dhirendra Kumar Agrahari, learned Amicus Curiae appearing
on behalf of appellant and Sri Rahul Asthana, learned A.G.A. for the State.
3. The prosecution case, in brief, is that the informant Om Pal Singh and his
colleague Pratap Singh, while returning from there duty on bicycle on
02.12.1981 at about 5.00 p.m., beyond the Bhainswal Jhal were intercepted
by 4 miscreants who robbed them of cash, wrist watches and other articles at
gunpoint. On alarm being raised, villagers arrived and chased the miscreants
leading to the apprehension of three accused persons namely, Lal Singh,
Indrajeet Singh and Bhopal. One of the miscreants managed to escape. A
pistol and two cartridges were recovered from the accused Lal Singh.
4. On the basis of written report of complainant Om Pal Singh, an FIR was
registered, a chik report was prepared and G.D. entries were drawn . A
recovery memo of the recovered articles was prepared. After investigation of
the case, charge-sheet was submitted.
5. The prosecution has examined as many as five witnesses to prove its case.
P.W.-1 Om Pal Singh, P.W. 2 Rishi Pal, P.W.-3 Chand Khan, P.W.-4 head
Moharrir Ram Bhagwan, P.W.-5 Sub-Inspector Chander Shekhar.
6. Documentary evidences, written report Ext. Ka-1, recovery memo Ext.
CRLA No. 2425 of 1982
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Ka-2 and Ka-3, carbon copy of G.D. Ext. Ka-4, site plan Ext. Ka-5 and
charge-sheet Ext. Ka-6, Ext. Ka-7 and sanction for prosecution under
Section 25 of Arms Act against Lal Singh, Ext. Ka-8 is on record.
7. The accused persons in their statements recorded under Section 313
Cr.P.C., denied the charges levelled against them and produced D.W.-1 Dr.
R.K Sharma and D.W.-02 Dr. D.C. Mobar.
8. The trial court, after appreciation of evidence, convicted the accused Lal
Singh for offence under Section 392 I.P.C. read with Section 397 I.P.C. and
sentenced him to undergo rigorous imprisonment for a period of seven years.
He was further sentenced for offence under Section 25 Arms Act to undergo
rigorous imprisonment for a period of one year. Accused Idris and Bhopal is
convicted for offence under Section 392 I.P.C. and sentenced to undergo
rigorous imprisonment for a period of four years.
8. This criminal appeal has been preferred by appellant Bhopal assailing
conviction and sentenced imposed by the trial court. During the pendency of
the present appeal, the lower court record was summoned.
9. The learned Amicus Curiae on behalf of the appellant submitted a copy of
judgment dated 29.09.2015, passed in criminal appeal No.2397 of 1982 that
has been preferred by co-accused Idris arising out of same judgment dated
25.09.1982 passed in Sessions Trial No.14 of 1982.
10. A perusal of the judgment passed in criminal appeal No. 2397 of 1982,
Idris Vs. State of U.P. transpires that the record of the trial court hasd been
weeded out. A report was also called from District and Sessions Judge as to
whether the reconstruction of the record is possible. The District Judge,
Muzaffarnagar has sent his report dated 28.09.2015, stating therein that
reconstruction of the record is not possible as no document pertaining to the
present case is available either in the record room or at the police station.
11. Learned Amicus Curiae for the appellant has placed reliance upon the
judgment of Apex Court, passed in the State of Uttar Pradesh Vs. Abhay
Raj Singh, (2004) 4 SCC 6, wherein it has been held that when the record is
not available and reconstruction is not possible, the appellate court has no
option but to allow the appeal. The conviction cannot be sustained in the
absence of record.
12. It has also been brought to the notice of the Court that in a connected
CRLA No. 2425 of 1982
3
appeal No.2397 of 1982, Idris Vs. State of U.P. decided on 29.09.2015, the
co-accused was acquitted on the same ground of non-availability of record
and no possibility of the reconstruction.
13. The Court has considered the submissions and perused the material
available on record. It is an undisputed position that the original trial court
record is not available and despite efforts, the same could not be
reconstructed. In the absence of the record, it is not possible for this Court to
reappraise the evidence and to examine the correctness of the findings
recorded by the trial court.
14. The right of the appeal is a valuable statutory right and meaningful
adjudication of an appeal is not possible in absence of trial court record.
15. The Hon'ble Apex Court in State of Uttar Pradesh Vs. Abhay Raj
Singh, (2004) 4 SCC 6 has categorically held that when the record is lost
and reconstruction is not possible, the only course open is to set aside the
conviction and allow the appeal.
16. In view of the aforesaid settled legal principle and considering that the
prosecution also suffers from complete absence of record, the Court is left
with no option but to extend the benefit to the appellant- Bhopal.
17. The appeal is allowed. The judgement and conviction dated 25.09.1982,
is hereby set aside and accused acquitted of charges under section 392 I.P.C.
18. The appellant is on bail. His bail bonds are cancelled and sureties are
discharged.
19. A copy of this judgment be transmitted to trial court concerned for
necessary compliance.
20. This court appreciates the assistance provided by Sri Dhirendra Kumar
Agrahari, learned Amicus Curiae, who has assisted the Court and for the
service rendered by him, an honorarium of Rs. 10,000/- shall be paid to him
as per rules.
March 30, 2026
P. Pandey
(Mrs. Vani Ranjan Agrawal,J.)
Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad
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