1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 588 OF 2000 DIST.: MUMBAI Vilas Nivruti Ahire, ] Adult, Indian Inhabitant, residing ] at Building No. 21, Room No. 10, ] Western Railway Colony, Bandra (East), ] Mumbai 400 051 ] ...Appellant Versus The State of Maharashtra ] (To be served on ] the Additional Government Pleader, High Court, ] Appellate Side, Mumbai) ] ...Respondent. Mr. Niteen Pradhan, amicus curiae Mr. A.K. Moily (appointed) for the Appellant Mrs. S.D. Shinde, Additional Public Prosecutor, for the State. CORAM: B ILAL NAZKI and A.A. KUMBHAKONI, JJ. DATE: SEPTEMBER 25, 2008 2 ORAL JUDGMENT (Per Bilal Nazki, J.):- This is an appeal, which is being taken up by us in an unusual circumstance, as we are constrained to decide this appeal in the absence of any record. Only a copy of the judgment of the trial Court and Roznama are available to this Court. 2. The accused had been convicted under Section 302 of the Indian Penal Code read with Section 201 and sentenced to imprisonment for life and a fine of Rs.10,000/- and in default, he has to undergo further sentence of rigorous imprisonment of 6 months. Under Section 201 of the I.P.C., he had been sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.5,000/-, and in default of fine, he had to undergo rigorous imprisonment for a period of three months. 3. Before we start with the facts of this case, it will be pertinent to note that the appellant had been convicted by the trial Court on 2nd 3 July, 1999. The incident had taken place on 24th May, 1995, and the appellant had been arrested on 28th May, 1995. During the trial, he remained in custody, and was not bailed out, and after the conviction, he is serving the sentence. Therefore, from May, 1995, he remained continuously in custody and/or in jail for more than three years till recently when this Court ordered that he should be released on bail. In a way, the appellant has already served the sentence, which was awarded to him by the learned Sessions Judge. 4. Now, coming to the case, the appellant filed this appeal in August, 2000. It could not be taken up earlier for final disposal. Some time on 3rd September, 2001 when it was so taken up, it was dismissed for default. It was restored on 8th December, 2006. We are aware that the appellant was in jail, and as such, it should not have been dismissed for default, but that order of default caused him another 5 years. 5. The prosecution story was that on 24th May, 1995 at 1740 hours, a message was received by the Oshiwara Police Station that an 4 old person in an injured condition was knocking at the door of one of the rooms at a hotel. Then, a police constable was sent. Police constable Tawade, accompanied by one Obed, visited Hotel Amber. He found PSI Avhad at the hotel. All of them proceeded to Room No. 106 at the hotel, and on opening the door with the duplicate key, found one old person, deceased Manoharlal Gurbaxani, sitting inside the room with bleeding on his throat. Blood was found spilled all over the room. Police Constable Tawade thereafter lodged a complaint against the accused Vilas, and the case was registered and investigated. 6. When this case was dismissed in default in 2001, the record summoned by the High Court was sent back to the Court of Sessions for Greater Bombay. When the appeal was restored in 2006, and it came up for hearing, the High Court wanted to examine the record, which included the depositions, but the record was not available. Notice was sent to the learned Sessions Judge, but this Court was informed that the record and proceedings pertaining to the case have been destroyed on 4th June, 2007 as per the provisions of the Criminal Manual. In spite of the best efforts of the Court, the record, particularly the depositions of the witnesses, could not be made available, as the record had been 5 destroyed in terms of rules. Even the Court also tried to re-construct the file, which also was not successful, as neither the appellant, nor his counsel, nor the police had any record, on the basis of which the record could be re-constructed. 7. An affidavit has been filed by the appellant that he has no record available with him, nor with his counsel. Similarly, a communication has been filed by the learned Additional Public Prosecutor, who has received this communication from the Investigating Officer that the police did not maintain any record, and all records were submitted to the Court at the time of filing of the charge-sheet, and after the charge-sheet was filed and depositions were recorded, the police were not in custody of any of the copies of such depositions. 8. The learned Additional Public Prosecutor submits that the advocate, who was appearing in this matter either in the trial Court or in the High Court earlier, was also not in possession of any copies of the depositions. In view of the aforesaid, on the basis of the judgment alone, it will be difficult for this Court to appreciate whether the conviction was sustainable or not. 6 9. We passed an order, directing the Registrar (Judicial-I) to bring this matter to the notice of the learned Chief Justice, so that a policy is framed that the depositions in criminal cases are not destroyed and remain available. We further are of the view that if it is not possible physically to preserve all depositions in the form of a hard copy, they could always be transferred into a soft copy, with a certificate of the concerned Judge that they were true versions of the original depositions, so that in cases like this, we do not have the difficulty of deciding the case without the evidence. 10. To come out of the problem faced by the Court, the learned Senior Counsel Mr. Niteen Pradhan, whom we had requested to help us, has shown to us a judgment of the Hon'ble Supreme Court in State of U.P. v. Abhai Raj Singh & Anr., reported in (2004) 4 Supreme Court Cases 6. The Hon'ble Supreme Court, in such situations, ruled that the Court should, in the first instance, try to re-construct the record and to hear the appeal on merits. The second option is that if the re-construction of the record was not possible, the case should be sent 7 for re-trial. The third option is, if the entire record or material that can be used for re-trial was also lost, and even re-trial was not possible, to acquit the accused and to put an end to the proceedings. 11. In the present case, we have noted hereinabove that the re-construction of record is not at all possible. The second option laid down by the Hon'ble Supreme Court is of re-trial. We feel that if the accused is now sent for re-trial, it will be travesty of justice, because the appellant has already undergone imprisonment for more than 13 years, and it may bear him another 13 years to face a new trial, and it may result in conviction or acquittal. Moreover, even the police do not have any material with them, like the charge-sheet or the statements recorded during the investigation. Therefore, there is no material also available to conduct a re-trial. 12. In these circumstances, this Court has no option but to allow this appeal and set aside the judgment of conviction and sentence, and acquit the accused. Accordingly, the appeal is allowed, and the appellant is acquitted. The Bail Bond is discharged. 8 BILAL NAZKI, J. A.A. KUMBHAKONI, J.