Murkhaliya and Others vs The State and Another

Dharam Veer, J.—All these criminal revisions have been preferred by the revisionists against the judgment and order dated 08.03.1988 passed by Sessions Judge, Tehri Garhwal as well as against the judgment and order dated 07.08.1986 passed by CJM, Tehri Garhwal and since all the offences in all the revisions are related to one common incident, hence all these revisions are being decided by this common order.

This Court in Criminal Revision No. 598 of 2001 vide order dated 02.07.2004 had summoned the report from the CJM, Tehri Garhwal about the death of Revisionists Nos. 8 Da-bboo, Revisionist No. 12 Bishambhar Dutta and Revisionist No. 16 Mala Devi. In compliance of that order, CJM, Tehri Garhwal vide his report dated 04.08.2004 has submitted that the above said revisionists have been died. Thereafter, on 14.3.2005, this Court had abated the revision against Revisionists No. 8 Da-bboo, No. 12 Sri Bishambhar Dutta and No. 16 Mala Devi.

These criminal revisions have been preferred, u/s 397/401 of Code of Criminal Procedure, 1973, against the judgment and order dated 08.03.1988 passed by Sessions Judge, Tehri Garhwal in Criminal Appeal No. 25 of 1986, Murli Dhar and twenty four Ors. v. State and Anr. whereby the learned Sessions Judge, Tehri Garhwal has dismissed the appeal preferred by the revisionists and confirmed the judgment and order dated 7.8.1986 passed by C.J.M., Tehri Garhwal whereby the revisionists were convicted under Sections 147 and 297 I.P.C. and also u/s 4 and 7 of Protection of Civil Rights Act, 1955 and sentenced each of them u/s 147 IPC to pay a fine of Rs. 200/- each and in default to undergo 15 days S.I.; u/s 297 IPC to pay a fine of Rs. 200/- each and in default to undergo 15 days S.I.; u/s 4 of Protection of Civil Rights Act to undergo one month R.I. and to pay a fine of Rs. 100/- each and in default of fine, to undergo imprisonment for 15 days and u/s 7 of Protection of Civil Rights Act to undergo R.I. for one month and to pay a fine of Rs. 100/- each and in default of fine, to undergo imprisonment for 15 days. However, the learned CJM, Tehri Garhwal had acquitted the revisionists u/s 323 IPC. The sentences were directed to run concurrently. In case of default of fine under Sections 4 and 7 of Protection of Civil Rights Act, it was directed that the sentences would run separately.

In brief the facts of the case are that Respondent No. 2, Barfu filed a complaint against the revisionists and three others u/s 147, 323, 504, 506 and 297 IPC and Sections 4 and 7 of Protection of Civil Rights Act. The allegations made in the complaint were that the complainant is Harijan by caste. His father Bachhu was seriously ill. He called the Pradhan Murli and expressed a desire that after his death, his cremation should be performed in the cremation ground in village Dugadda. The Pradhan accepted this request and he further directed that the dead body should be carried through a particular route. On 19.2.1985, the father of the complainant Bachu died. It was stated that about 40 persons had accompanied the dead body. It was being taken for cremation in the aforesaid cremation ground. When Bachu died, Murli was again called and he again give permission that the last rites should be performed at the aforesaid cremation ground in Dugadda. On 20.2.1985, the deadbody was being carried towards the cremation ground. The deadbody was being carried on a Khatola and was tied with ropes. When the dead body was carried upto a distance of two furlongs from the village of the revisionists, about 200 persons including ladies and men were sitting there. They had formed unlawful assembly with the purpose of obstructing passage of the dead body and also causing insult and annoyance to the dead body and also to the persons carrying the dead body and also with a view to prevent them from carrying the dead body to the cremation ground at Dugadda. They were armed with axe, daranti, stones, lathis etc. When the dead body reached there they made a protest. They practiced and professed untouchability and openly told that the dead body of Harijan cannot be cremated at Dugadda because it was a cremation ground for Savarna Hindus. It was also stated that on account of untouchability with the Harijans, they will not permit the dead body of Bachu, a Harijan, to be cremated in the aforesaid cremation ground. The ladies cut the rope over the dead body. The dead body was taken out of the Khatola and thrown by the side of the road. The revisionists and their companions entered into fight with the son of the deceased and other persons accompanying the dead body. Lathis, darantis, stones etc. were plied in which several persons sustained injuries. Upon finding that the son of the deceased and his companions would not be able to resist, a mob of more than 200 persons, the dead body was left and those persons ran for safety. The revisionists extended threats, abused Barfu and other persons. Thereafter, on 21.2.1985, Barfu went to District Magistrate, Narendranagar and wanted to give an application to him. Since the District Magistrate was not available hence the Incharge District Magistrate received the application and passed necessary orders for Tehsildar, Deoprayag. The Tehsildar being not available, hence S.D.M., Kirtinagar in the company of Naib Tehsildar, Supervisor Kanungo and Patwari went to the scene of occurrence on 24.2.1985. The dead body of the Bachu was lying at the same place. Ultimately, SDM Kirtinagar arranged for cremation of the dead body. He called the two sides and cremation was performed. As such, on 12.3.1985, a complaint was filed in the court of CJM, Tehri Garhwal with the aforesaid allegations and with the further allegations that the revisionists intentionally insulted the complainant and the dead body and practised untouchability and also hurt the religious feelings of the complainant and other Harijans.

The prosecution in order to prove its case got examined P.W.1 Barfu, P.W.2 Uma, P.W.3 Pawan Lal, P.W.4 Pussu and SDM, Kirtinagar as P.W.5.

The revisionists pleaded not guilty and they stated that they were implicated on account of enmity. In support of their case, they examined D.W.1 Dharmanand and D.W.2 Govind Singh Rawat, Patwari. The learned CJM, Tehri Garhwal after considering the entire facts and circumstances of the case vide his judgment and order dated 07.08.1986 convicted the revisionists under Sections 147 and 297 I.P.C. and also u/s 4 and 7 of Protection of Civil Rights Act and sentenced each of them u/s 147 IPC to pay a fine of Rs. 200/- each and in default to undergo 15 days S.I.; u/s 297 IPC to pay a fine of Rs. 200/- each and in default to undergo 15 days S.I.; u/s 4 of Protection of Civil Rights Act to undergo one month R.I. and to pay a fine of Rs. 100/- each and in default of fine, to undergo imprisonment for 15 days and u/s 7 of Protection of Civil Rights Act to undergo R.I. for one month and to pay a fine of Rs. 100/- each and in default of fine, to undergo imprisonment for 15 days. However, the learned CJM, Tehri Garhwal had acquitted the revisionists u/s 323 IPC. The sentences were directed to run concurrently. In case of default of fine under Sections 4 and 7 of Protection of Civil Rights Act, it was directed that the sentences would run separately. Being aggrieved by the aforesaid judgment and order dated 7.8.1986, the revisionists preferred an appeal before the Sessions Judge, Tehri Garhwal. The learned Sessions Judge, Tehri Garhwal after perusing the entire evidence available on record vide his judgment and order dated 08.03.1988 dismissed the appeal preferred by the revisionists. Feeling aggrieved, the revisionists have preferred the present revision.

I have heard Mr. Lokendra Dobhal, learned Counsel for the revisionists, Mr.Amit Bhatt, learned Addl. G.A. for the State/Respondent No. 1 and Mr. U.K. Uniyal, Sr. Advocate assisted by Mr. Sobhit Saharia, learned Counsel for Respondent No. 2.

This Court by order dated 17.05.2002 directed to summon the record of the case. In compliance of the said order, Incharge Officer, Record Room, District Judge, Tehri Garhwal by his letter dated 15.07.2006 has informed that the record of the case has been weeded out on 15.01.1999. Learned Counsel for the revisionists Mr. Lokendra Dobhal, Mr. Amit Bhatt, learned Addl. GA for the State and Sri U.K. Uniyal, Sr. Advocate, learned Counsel for the Respondent No. 2 have stated that the reconstruction of the record is not possible. They also submitted that retrial is also not possible due to the expiry of period of about 22 years.

Learned Counsel for the revisionists Sri Lokendra Dobhal placed reliance on a judgment rendered by Allahabad High Court in the case of Aziz Khan v. State of U.P. reported in 29 (1992) ACC 223. In the said judgment, it was held as under:

Where record has been lost or destroyed and it is not possible to reconstruct the record, it will not be just or proper to direct the retrial of the case if a long gap has elapsed since the commission of the offence.

Learned Counsel for the revisionists also relied upon a judgment rendered by Allahabad High Court in the case of Om Prakash v. State of U.P. reported in A.L.C. 1999 Vol.II Page 685. He relied upon para 4 and 5 of the said judgment which is reproduced as under:

The contention of the revisionist has substantial force. In the case of Ram Nath v. State, the view taken by the Division Bench of this Court was that when material on record was not sufficient to dispose of the appeal on merits and it was not possible to reconstruct the record, its benefit should go to the accused-appellant. What has been held with regard to appeal would equally apply to a revision against conviction upheld by the lower appellate Court insofar as non-availability of the record is concerned.

In the case at hand, the incident took place as back as on 27.6.1979 viz., more than twenty years back. Since the record of the lower court is not available and the reconstruction is also not possible, the revision deserves to be allowed on this score alone.

Learned Counsel for the revisionists further placed reliance in para 3 and 7 of the judgment rendered by Allahabad High Court in the case of Akhilesh Chandra v. State of U.P. reported in 57 (2007)ACC 50 in which it was held that:

At the time of hearing of the revision it was detected that the Trial Court record was not received in this Court even though the summoning of the Trial Court was ordered by this Court. It was informed that the same was weeded out. Consequently, reconstruction of the record was ordered by this Court. In pursuance of the said order, the reconstruction of the record was endeavoured and some papers were received from the office of C.M.O. vide his letter dated 9.4.1999 which included the notice u/s 13(2) of the Act, the copy of the sanction granted by the Chief Medical officer/ Local Health Authority dated 20.4.1983, the application of the Food Inspector for grant of sanction, the Public Analyst report dated 21.2.1983. Rest of the record of the case was not traced out and it was reported by the Chief Judicial Magistrate, Farrukhabad vide his letter dated 16.4.1999 that it is not possible to reconstruct the record.

In view of what has been said have above, there is no other option for this Court but to acquit the revisionist of the charges leveled against him.

In view of the statement made by learned Counsel for the revisionists and the learned Counsel for the respondents that now the reconstruction of the record is not possible and even the retrial is not possible due to the expiry of period of about 22 years and for the reasons discussed above and further in view of the law laid down by the Allahabad High Court in the case of Aziz Khan (Supra), Om Prakash (Supra) and Akhilesh Chandra (Supra), the revisions are liable to be allowed.

Since the Revisionists No. 8 Da-bboo, Revisionist No. 12 Bishambhar Dutta and Revisionist No. 16 Mala Devi in Criminal Revision No. 598 of 2001 have been reported to be died, hence the revision against them is abated. For the rest of the revisionists, the revisions are allowed. The judgment and order dated 08.03.1988 passed by Sessions Judge, Tehri Garhwal as well as judgment and order dated 07.08.1986 passed by Chief Judicial Magistrate, Tehri Garhwal are set aside. The conviction and sentence of the rest of the revisionists u/s 147 and 297 IPC and under Sections 4 and 7 of Protection of Civil Rights Act, 1955 is hereby set aside and they are acquitted of the charges leveled against them. The revisionists are on bail; their bail bonds are cancelled and sureties are discharged. They need not surrender.