Neutral Citation No. - 2025:AHC:12616-DB Court No. - 43 Case :- CRIMINAL APPEAL No. - 246 of 1982 Appellant :- Parmal Singh And Others Respondent :- State of U.P. Counsel for Appellant :- Keshav Shahai,G.P.Dixit,Preetpal Singh Rathore,Purushottam Dixit,S.D.N. Singh,Shyam Kishore Yadav Counsel for Respondent :- Dg.,A.G.A.,Ram Om Vikram Singh Chauhan Hon'ble Vivek Kumar Birla,J. Hon'ble Ms. Nand Prabha Shukla,J. 1. Heard Shri Shaym Kishore Yadav assisted by Shri Kunwar Akhilendra Singh, learned counsel for the appellants, Shri R.O.V.S. Chauhan, learned counsel for the informant as well as Shri Amit Sinha, learned AGA for the State respondents. 2. Present Criminal Appeal is being preferred against the judgment and order dated 28.01.1982 passed in Sessions Trial No.67 of 1981, convicting the accused Permal Singh under section 147 IPC and sentencing him one year Rigorous imprisonment, and convicting the appellant Raj Dayal Singh, Kunwar Bahadur Singh, Vir Bahadur Singh, Phol Singh and Ahbaren Singh under section 148 I.P.C. and sentencing them one year rigorous imprisonment, and convicting the appellant Permal Singh under section 323 I.P.C. and sentencing him six months Rigorous Imprisonment, and convicting the appellants- Raj Dayal Singh, Kunwar Bahadur Singh, Vir Bahadur Singh, Phool Singh and Ahbaran Singh under section 323 read with section 149, I.P.C. and sentencing them six months rigorous imprisonment and convicting all the appellants, namely, Parmal Singh, Raj Dayal Singh, Kunwar Bahadur Singh, Vir Bahadur Singh, Phool Singh and Ahbaran Singh under section 302 read with section I. P.C., and sentencing them life imprisonment. All the sentences to run concurrently. 3. Present appeal is of the year 1982. 4. As per office report dated 29.11.2024, based on report of CJM Etawah, the appellant no.5-Phool Singh, s/o Ram Bahadur Singh is dead. The statements of witnesses has already been annexed alongwith the said report. 5. In such view of the matter, the appeal stands abated in respect of Appellant no.5-Phool Singh. 6. Vide order dated 15.11.2007 the appeal was abated in respect of appellants no.3 and 6, namely, Kunwar Bahadur Singh and Ahibaran Singh. Vide order dated 06.07.2021 the appeal was abated in respect of appellant no.2-Raj Dayal Singh. 7. Now the appeal is surviving only appellant no.1-Parmal Singh and appellant no.4-Vir Bahadur Singh. 8. On perusal of records we find that the paper book is totally incomplete, which was directed to be reconstructed but the same has not been fully constructed as the lower court records were not available whereas serious efforts were made running to several years. 9. In support of its case the prosecution has examined 11 witnesses, namely, i) PW-1-Badan Singh, ii) PW-2-Suresh Chandra, iii) PW-3-Sonepal, iv) PW-4-Jagdish, v) PW-5-Shishu Pal Singh, vi) PW-6-Atma Singh, vii) PW-7-K.K. Tewari, viii) PW-8-Dr. Chauhan, ix) PW-9-R.C. Sharma, x) PW-10-Har Prasad Sharma, xi) PW-11-Constable Suresh Chandra. 10. We find that out of 11 prosecution witnesses, statements of only PW.2-Suresh Chandra has been recorded. The statement of CW-1-Constable Anuj Kumar was recorded to the effect that he had gone to the another witness P.W.4-Jagdish but he was found to be bed ridden and extremely ill and was unable to move and speak and could barely write the name on the summons. This statement clearly reflects that Statement of PW-4-Jagdish has not been recorded. 11. We find that except the copy of the judgement only the statement of PW-2-Suresh Chandra recorded pursuant to direction of this Court is on record and no other documents whatsoever is available. The statement of accused persons is also not on records. 12. We have also gone through the various previous orders passed by this Court from 08.10.2021 up till now which clearly reflects that serious efforts were made to reconstruct the records, however, the same could not be reconstructed. 13. We 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. 14. 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 judgement dated 27.3.1989 passed by IXth Additional District & Sessions Judge, Moradabad as regards the accused person cannot be reversed. 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. 15. The appeal accordingly stands allowed. The impugned judgment and order of the trial court dated 28.01.1982 convicting and sentencing the appellants is hereby set aside and the appellants are acquitted of the charges levelled against them. 16. Appeal is allowed in above terms. 17. Copy of this judgment be sent to the court concerned for necessary compliance. Order Date :- 24.1.2025 Nitendra Digitally signed by :- NITENDRA TIWARI High Court of Judicature at Allahabad