(Cr.A.No.1943/2019) 2026:CGHC:8680-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1943 of 2019 {Arising out of judgment dated 28-6-2014 in Sessions Trial No.343/2012 of the 3rd Additional Sessions Judge, Ambikapur, District Surguja} Judgment reserved on: 15-1-2026 Judgment delivered on: 18-2-2026 Judgment (Full) uploaded on: 18-2-2026 Lakhan Ram, S/o Motiram Gond, Aged about 27 years, R/o Village Jhirmitti, P.S. Udaipur, District Sarguja, Chhattisgarh. ... Appellant versus State of Chhattisgarh, through the Police Station Udaipur, District Sarguja, Chhattisgarh. ... Respondent For Appellant : Mr. Saurabh Dangi, Advocate. For Respondent : Mr. Vivek Mishra, Panel Lawyer. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Arvind Kumar Verma, JJ. C.A.V. Judgment Sanjay K. Agrawal, J. 1. The appellant herein has preferred this criminal appeal under Section 374(2) of the CrPC against the impugned judgment of conviction & order of sentence dated 28-6-2014 passed by the 3rd Additional Sessions Judge, Ambikapur, District Surguja in Sessions Trial No.343/2012, by which he has been convicted for offence under SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2026.02.18 18:05:24 +0530 (Cr.A.No.1943/2019) Section 302 of the IPC and sentenced to undergo imprisonment for life and further sentenced to pay a fine of ₹ 500/-, in default of payment of fine to further undergo additional rigorous imprisonment for three months. 2. The appeal filed by the appellant came up for hearing before this Court on 16-12-2019 and this Court directed to call for the records of the trial Court and list the matter after six weeks. However, when the matter again came up for hearing on 29-6-2021, the Assistant Record Keeper of the concerned District & Sessions Judge, Ambikapur has informed that record has been misplaced and this Court by order dated 29-6-2021 directed to reconstruct the record. This Court again on 15-11-2021, directed the Sessions Judge, Ambikapur to hold enquiry and submit report as to whether responsibility has been fixed for misplacing the record and what efforts have been taken to trace out the record. Further, this Court on 15-11-2021, also directed the Director (Prosecution) to file a detailed affidavit regarding what steps can be taken for reconstructing the record. The Director (Prosecution) on 24-11-2021, submitted its report that relevant documents have been forwarded to the Office of the Advocate General on 31-12-2014 and 1-1-2015, however, on 16-8-2021, they sought documents from the office of the Advocate General upon which they were informed that since no appeal was filed, therefore, now, the records have become untraceable. Thereafter, on 11-5- 2022, this Court directed the respective counsel for the parties to suggest ways and means to be adopted regarding reconstruction of (Cr.A.No.1943/2019) the records of the original criminal case so that the criminal appeal can be heard. Ultimately, on 27-7-2022, the State has filed certified true copy of the final report bearing No.70/2012 in which following documents have been made available: - 1. Final Report 2. Memorandum Statement of the Accused (Ex.P-8) 3. Property Seizure Memo (Ex.P-10 – soil & Ex.P-11 – appellant's cloth) 4. Crime Details Form 5. Medical Examination of the Accused 6. FIR under Crime No.83/2012 (Ex.P-18) 7. Arrest Memo 8. Section 161 CrPC Statements of Witnesses 9. Merg diary (Ex.P-13A – merg intimation & Ex.P-17 – merg report) 10. Intimation by Hospital to Police Station 11. Notice for Naksha Panchayatnama 12. Naksha Panchayatnama (Ex.P-2) 13. Application for Postmortem and Postmortem Report (opinion) (Ex.P-14 – application & Ex.P-15 report) 14. MLC of the deceased 3. Though the aforesaid documents have been made available by the prosecution and as such, most of the records are available except statements of the prosecution and defence witnesses and exhibited documents, but appeal cannot be heard, as statements of witnesses and some documents are not available. Page 4 of 8 (Cr.A.No.1943/2019) 4. The question for consideration is, what would be the proper procedure to be followed in this appeal? 5. Section 386 of the CrPC provides for powers of the Appellate Court. Clause (b) of Section 386 states as under: - “386. Powers of the Appellate Court.—After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosector, if he appears, and in case of an appeal under section 377 or section 387, 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) xxx xxx xxx (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; xxx xxx xxx xxx xxx xxx” 6. Under sub-section (2) of Section 385 of the CrPC, it is obligatory on the part of the appellate Court to peruse the record before deciding the appeal against an order of conviction. The conviction of an accused cannot be confirmed unless the appellate Court peruses the entire record. 7. The Supreme Court in the matter of State of U.P. v. Abhai Raj Singh and another1 has held that where that is not possible 1 (2004) 4 SCC 6 (Cr.A.No.1943/2019) because of circumstances like destruction of the records, the proper course for the appellate court would be to direct retrial after reconstruction of the records, and observed as under: - “6. The powers of the appellate court when dealing with an appeal from a conviction are delineated in sub-clauses (i), (ii) and (iii) of clause (b) of Section 386 of the Code. The appellate court is empowered by Section 386 to reverse the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence. The appellate court is also empowered to discharge the accused. The third category which seems to be applicable to the present case is a direction for retrial by a court of competent jurisdiction subordinate to the appellate court or committed for trial. For exercise of the powers in cases of first two categories, obviously a finding on merits after consideration of the materials on record is imperative. Where that is not possible because of circumstances like the case at hand i.e. destruction of the records, the proper course for the appellate court would be to direct retrial after reconstruction of the records if in spite of positive and constructive efforts to reconstruct the records the same was impossible. If on the other hand, from the copies available with the prosecuting agency or the defence and/or their respective counsel, reconstruction is possible to be made, the said course should be adopted and the appeal can be disposed of as it deserved under the course indicated in sub- clauses (i) and (ii). After perusal of the records and hearing the appellant's pleader and Public Prosecutor under Section 377 or 378, the exercise of power as indicated above can be resorted to. As was observed in Bani Singh v. State of U.P.2 the plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it must call for the records and Section 386 mandates that after record is received, the appellate court may dispose of the appeal after hearing as indicated.” 8. Similarly, in the matter of Jitendra Kumar Rode v. Union of India3, the Supreme Court has held that the “procedure established by law” in a criminal prosecution is a sacrosanct requirement, and observed as under: - 2 (1996) 4 SCC 720 : 1996 SCC (Cri) 848 3 (2024) 11 SCC 559 (Cr.A.No.1943/2019) “24. One of the earlier cases on this issue is the judgment of the Allahabad High Court in Queen Empress v. Khimat Singh4, wherein the District Judge failed to trace or discover the lost records. The Court observed that this loss of records has lost the appellant, a right he is entitled to, that of hearing by a higher court. In such situations, no other recourse remains than to order trial de novo. The judgment in Khimat Singh4 has been followed by this Court in Abhai Raj Singh1.” 9. In the matter of Bani Singh and others v. State of U.P.5, the Supreme Court has considered the meaning and scope of Section 385(2) of the CrPC and held as under: - “8. 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.” 10. Coming to the facts of the case, it is quite vivid that in view of the finding recorded by this Court on 29-6-2021, the original records 4 Queen Empress v. Khimat Singh, 1889 All WN 55 5 AIR 1996 SC 2439 (Cr.A.No.1943/2019) have already been lost and it has been directed for reconstruction of the records. As such, though the records have been reconstructed except statements of witnesses, prosecution and defence and some other documents as well, it would not be possible to hear the appeal arrive at a conclusion that the impugned judgment passed and sentence awarded against the appellant is legally justified and in conformity with law. Therefore, it is not legally permissible for this Court to affirm the conviction of the appellant since perusal of the complete record of the case is one of essential elements of hearing of the appeal. The appellant has a right to satisfy the appellate Court that the material or evidence available on record did not justify his conviction and this right cannot be denied to the appellant. Since the State has submitted documents containing all the material documents, except statements (prosecution and defence) in light of the decision of the Supreme Court in Abhai Raj Singh’s case (supra) followed in Jitendra Kumar Rode (supra), it would be expedient to set aside the impugned judgment of conviction and order of sentence and direct for retrial of the appellant. It is ordered accordingly and the appeal is allowed. Records as filed on 27-7-2022 shall be sent to the trial Court in a closed envelope keeping the photocopy of the same. The trial Court would do well to conclude the retrial within six months as the incident is said to have occurred on 10-8-2012. 11. In that view of the matter, since the appellant is on bail, the bail bonds of the appellant shall remain in operation for a period of six (Cr.A.No.1943/2019) months in view of the provisions contained in Section 437A of the CrPC. Sd/- Sd/- (Sanjay K. Agrawal) (Arvind Kumar Verma) Judge Judge Soma