JUDGMENT
Vinod Prasad, J.
1. Aggrieved by the judgment of acquittal dated 21.5.1985 passed by Judicial Magistrate-I (NR) Railway, Bareilly in Case No. 888 of 1981 State v. Satyendra Kumar Singh and Ors., under Section 3 Railway Property Unlawful Possession Act (R.P.U.P. Act). State has preferred this appeal under Section 378 Cr. P.C.. along with leave to appeal. Leave was granted by this Court and the appeal was admitted on 4.5.1987. The appeal was expedited on 24.2.1989. The record of this appeal indicated that the trial court record was ordered to be summoned on 4.2.1991. The office report dated 7.1.1992 indicated that the report which was received from Incharge Record Room, Bareilly indicated that trial court record was weeded out on 6.9.1990. Hence this Court ordered for reconstruction of the record on 25.8.1994. The order sheet of this appeal further reveals that the Incharge District Judge, Bareilly, on 13.2.2006, intimated this Court that reconstruction of the record is not possible except two certified copies of entries Nos. 7 and 47 dated 9.1.1981 of the general diary of GRP, Bareilly Junction which was sent by the Incharge District Judge, Bareilly along with his report dated 13.2.2006, The record further reveals that the Additional Chief Judicial Magistrate, (NR), Bareilly also made a report on 31.1.2006 that reconstruction of the record is not possible. Now this appeal is listed for hearing.
2. The facts of this case are that on 10.1.1981 S.P. Bhatt, Sub-Inspector accompanied by Chandra Shekhar Sharrna and Ram Asrey Singh constables whereon checking duty in Chandausi Railway yard when they found that near line No. 11 from a stationed wagon a person was carrying a bag on his head and a second man was keeping another bag from the wagon on the head of a third person. When the aforesaid GRP personnels proceeded towards the wagon all the aforesaid persons started running. They were chased by giving calls as thieves. Constable Mukhtar Ali reached on the spot and all the three persons were apprehended along with the bags on the road near Railway Hospital at 12.50 A.M. who disclosed their names as Pramod Kumar, Girish Kumar and Satyendra Kumar Singh. The bags were that of Urea manure. The wagon in question was numbered as ER 58819, Seizure memo was prepared on the spot, signature of witnesses were obtained, recovered manure were sealed, impression of seal etc, were prepared and a case was registered at RPF post Chandausi. Investigation proceeded and culminated into a complaint tinder Section 3 R.P.U.P. Act against the accused persons who were summoned by the Railway Magistrate, Bareilly. The accused respondents denied the charge and took the defence of false implication.
3. In the trial, complainant prosecution examined Asrey Singh, Head Constable P.W. 1, S.P. Bhatt, S.I. P.W. 2, Brijesh Singh Good Clerk P.W. 3, Manga Ram Singh guard P.W. 4, Nitin Kumar, Assistant Goods Clerk P.W. 5, Chandra Shekhar Sharma Head Constable P.W. 6 and Shamshad Hussain, Sub-Inspector as P.W. 7. Ram Asrey Singh Head Constable P.W. 1, S.P. Bhatt, Sub-Inspector P.W. 2 and Chandrashekhar Head Constable P.W. 6 supported the prosecution version. Brijesh Singh, Goods Clerk P.W. 3 evidenced that wagon ER 58819 was loaded with 469 bags of Urea but on physical verification only 460 of bags of Urea were found and resultantly there was a shortage of 9 bags Urea. Manga Ram Singh P.W. 4 testified that he was Train Clerk posted at Chandausi. The aforesaid wagon ER 59819 had come to Chandausi which was booked for Moradabad. Both the doors of the said wagon were sealed which was checked by him. On 19.1.1981, the date of occurrence, the northern door of the said wagon was rescaled as the seal of the aforesaid door was found broken. P.W. 5 testified that he was posted as Assistant Clerk in Bombay and the aforesaid wagon was booked for Moradabad by Food Corporation of India containing Urea. Shamshad Hussain P.W. 7 is the Investigating Officer who had proved various steps of investigation, filing of complaint exhibit Ka-12, site plan exhibit Ka-11, statement of accused exhibit Ka-8 and statement of accused Pramod Kumar exhibit Ka-10.
4. Trial court after going through the evidence came to the conclusion that in fact the accused were not apprehended by the GRP constables and they had not seen them taking out the bags of Urea from the wagon in question and the accused were apprehended on the metalled road out side Railway yard. The trial court also came to the conclusion that none of the GRP constable had seen the accused near the wagon nor they had witnessed commissioning of theft. Trial court also referred to the statement of P.W. 1 wherein he has stated that he did not know which accused was carrying bag, which was loading the bag and which of the accused was taking out the bag from inside the wagon. Trial court also referred to the prosecution witness to point out that in respect of arrest of the accused also the evidence of prosecution witnesses are contradictory in nature. The trial court also came to the conclusion that the statement of the accused persons were recorded while they were in custody of the Investigating Officer and hence the confessional statements of the accused were hit by Section 25 of the Evidence Act and cannot be read in the evidence nor it can be treated to be a confession at all. Trial court also recorded a finding that prosecution has not been able to examine the consignee regarding the number of bag loaded in the wagon and Nitin P.W. 5 had acknowledged that nobody had made any claim in respect of missing of Urea bags from the Railways. Trial Magistrate was of the opinion that had the bags of Urea were stolen the owner of goods would have certainly laid the claim against the Railways. The trial court also recorded a finding that no person from Food Corporation of India (FCI) was examined to substantiate the complaint case and hence it recorded an order of acquittal of accused respondents.
5. I have heard Sri Danish Iqbal Fundi, learned brief holder in support of this appeal and Sri Madan Singh, learned Counsel for the three accused respondents.
6. In the absence of the original record, Sri Danish Iqbal Faridi, learned brief holder could not criticized the judgment of acquittal of accused respondents.
7. Learned Counsel for the accused Sri Madan Singh contrarily submitted that since the original record has been wedded out and the reconstruction of the original record is not possible, therefore, the appeal deserves to be dismissed and the order of acquittal should be upheld.
8. I have considered the submissions of both the rival sides. Since, in this case the reconstruction of the record is not possible, therefore, the appreciation of evidence of the witnesses, scanning of seizure memo and arrest memo arc close chapters for this Court. In the absence of record, it cannot be held that the judgment recorded by the trial court was not possible or is perverse or suffers from errors of law as this Court is denied the opportunity to scan and appreciate the evidences which is sine-quo-non for criticising any judgment under appeal. The absence of record has been subject matter of various judgments by this Court wherein Division Benches this Court has held that if the reconstruction of record is not possible then the accused cannot be convicted and they are entitled to acquittal. Without burdening this judgment some of the judgments arc referred here; Daya Ram v. State of U.P. 1992 ACC (Supple.) 219, Ram Nath v. State 1981 ACR page 431, Aziz Khan v. State of U.P. 1992 (29) ACC 223, Sita Rani and Ors. v. State 1981 CRLJ 65. In all these division judgments all the Hon’ble Judges forming the Benchs have opined that if the reconstruction of record is not possible then the accused is liable to be acquitted. In the judgment of Aziz Khan’s case (supra) it has further been held by Hon’ble Mr. Justice G.P. Mathur that in the event reconstruction of the record is not possible, retrial should not be ordered after a gap of 11 years. In the present case occurrence is of the year 1981 and acquittal was recorded on 21.5.1985 more than two decades ago.
9. From the impugned judgment as discussed above it does not transpire that the Magistrate has committed any error of law or perversity in appreciation of facts and law and, therefore, his judgment cannot be said to be perverse and against the weight of vidence on record.
10. In view of the above, the appeal against acquittal lacks merit and is hereby dismissed and the impugned judgment of acquittal recorded by the trial court dated 21.5.1985 in Case No. 888 of 1991 State v. Satyendra Kumar Singh and Ors., under Section 3 R.P.U.P. Act by Judicial Magistrate (NR), Bareilly is hereby confirmed.
11. This appeal against acquittal is dismissed.