Rajaram Nishad Vs State of Chhattisgarh

	Respondent(s)
For Appellant (s)	: Mr. Chandresh Shrivastava, Adv in CRA Nos.308
	& 405 of 2010, Mr. Neeraj Mehta, Adv in CRA
	Nos.293 & 396 of 2010 and Mr. Anmol Gupta, Adv on behalf of Ms. Vaishali Jeswani, Adv in CRA No.733/2011
For Respondent(s)	: Ms. Shubha Shrivastava, PL

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Hon’ble Smt. Justice Rajani Dubey

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Judgment on Board

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04/02/2026

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Since all the appeals arise out of same crime number but having two session trial numbers, as the appellants Sanni Verma, Neeraj and Montu were absconding as such their appeals were decided subsequently, therefore, these appeals have been clubbed together, heard together and are being disposed of by a common order.

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The present appeals are directed against the judgment of conviction and order of sentence dated 26.03.2010 passed by the learned Additional Session Judge (FTC), Balod, District Durg (C.G.) in Session Trial No.09/2008, whereby all the appellants have been convicted under Sections 147, 323/149, 323/149, 506B, 450/149 & 364/149 of IPC and sentenced to undergo RI for 1 year, RI for 1 year, RI for 1 year, RI for 2 years, RI for 10 years & RI for 10 years with default stipulations, whereas the appellants Sanni Verma, Neeraj and Montu have been convicted vide judgment dated 08.09.2011 passed by the learned Additional Session Judge, Balod, District Durg in ST No.71/2011 for the offence under Sections 147, 450, 506 (2), 323/149, 307/149 & 364/149 and sentenced to undergo RI for 1 year, RI for 10 years, RI for 2 years, RI for 1 year, RI for 7 years & RI for 10 years with default stipulations.

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The prosecution case, in brief, is that on 18/10/2007 at about

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8.00 to 8.30 p.m. when the victim namely, Virendra Bahadur Kashyap was in his house along with his wife Smt. Kiran Kashyap in village Deori the accused persons namely; Raju, Rasul Sıddiqui, Rajaram along with 9-10 friends forcibly entered his house and they enquired from Kiran Kashyap about her husband. Thereafter, the accused persons started abused the victim and assaulted him with hand and fist. When the wife of the victim resisted she was threatened by the accused persons with dire consequences. Thereafter, they forcibly took away the victim along with them and was taken to a farm house in village Rampur situated at Dongargarh Road and was kept in hostage for the entire night. According to the prosecution, the accused persons assaulted the victim and on the next day the victim was taken to Christian fellowship hospital, Rajnandgaon for medical check up by the accused/appellants and then the victim was dropped by the accused/appellant in his paternal home at Kapribhat at about 8.30 a.m. On 18/10/2007 at about 9.00 pm. the wife of the victim lodged a written complaint (Ex.P/4) before the Police of Police Station Deori, which was subsequently written down as the First Information Report (Ex.P/3). After completion of investigation, the charge sheet was filed against the appellants before the Magistrate concerned.

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Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court did not appreciate

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the oral and documentary evidence properly and did not consider omissions and contradictions in the statements of the prosecution witnesses. The victim himself stated in affidavit (Ex-D/2) categorically stated that present appellants have not at all participated in the crime in question. The learned Trial Court failed to examine the material witnesses Yugal Kishore, Nukum Sahu, Pappu and as such the appellants have wrongly been convicted for the aforesaid offence.

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They lastly submit that the record of the Trial Court was requisite but as per office note and letter No.275 dated 26.06.2025 received from the District and Session Judge, Durg, the record of the learned Trial Court was sent on 19.10.2011 to this Court, but as per order sheet dated 08.07.2025 it was found that the record of the ST No.9/2008 is not tagged with the Appeals i.e. CRA Nos.396/2010, CRA No.308/2010 and CRA No.405/2010 so this Court directed the Registrar Judicial to take appropriate steps for searching the missing record of the case being ST Nos.71/2011 and 9/2008, upon which he submitted his detailed report and as per report of Registrar Judicial, both cases are missing. Thus, as per the guidelines of the Hon’ble Supreme Court with regard to missing of record, the appeals deserve to be allowed. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matter of Jitendra Kumar

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Rode vs Union of India, reported in (2024) 11 SCC 559, judgment rendered by the Allahabad High Court in the matter of

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Sita Ram and others vs State , reported in 1981 CRILJ65 , Shri Ram Singh vs State, reported in 2024 AHC 147793 and this Court’s Judgment dated 16.06.2022 passed in CRA No.907/2000 in between Rajan @ Sarvjeet vs State of Chhattisgarh .

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Learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the oral and documentary available on record and has rightly convicted and sentenced the appellants for the aforesaid offence. He next submits that the certified copy of judgments are available with all the appeals however the statement of witnesses and other documents are not available.

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In absence of record, the question which arises for consideration before this Court is that whether the appeal can be decided on merit and if not then what would be course/method to be adopted by this Court. In this regard, Section 385 of CrPC provides as under:-

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““385. Procedure for hearing appeals not dismissed summarily .—(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given —

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(i) to the Appellant or his pleader;

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(ii) to such officer as the State Government may appoint on this behalf;

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(iii) if the appeal is from a judgment of conviction in a case instituted upon complaint to the complainant;

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(iv) if the appeal is under section 377 or section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.

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(2) The Appellate Court shall then send for the record

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of the case, if such record is not already available in that Court, and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.

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(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the Appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.”

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As per Section 385 of CrPC, this Appellate Court is required to call for the records of the case from the concerned Court and the same is an obligation, power coupled with a duty and only after perusal of such records appeal would be decided.

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The Hon’ble Apex Court in Jitendra Kumar Rode (supra) held in paras 35, 36 & 38 as under:-

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“35. Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the trial court. The same can only be done when the record is available with the Court of Appeal. That is the mandate of Section 385 of the CrPC. Therefore, in the considered view of this Court, it is not within prudence to lay down a straightjacket formula, we hold that noncompliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find it to be so in the instant case.

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The language of Section 385 shows that the Court sitting in appeal governed thereby is required to call for the records of the case from the concerned Court below. The same is an obligation, power coupled with a duty, and only after the perusal of such records would an appeal be decided.

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38 . The impugned judgment had directed the accused to pay, by way of an enhanced fine, Rupees 25,000. Given the above, the fine, be it of whatever amount, if

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deposited, is liable to be returned to the Appellant.”

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In Sita Ram (supra), the Hon’ble High Court of Allahabad held in para 11 as under:-

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“11. On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are of the opinion that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal The appellant has a right to try to satisfy the appellate court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of FIR, statements of witnesses under Section 161, Cr. PC reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduely long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of FIR and statements of witnesses under Section 161. Cr PC and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State.”

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Reverting to the facts of the present case in light of the judgments of Hon’ble Apex Court as well as High Court of

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Allahabad and this Court, it is clear from certified copies of judgment that the incident had taken place on 18.10.2007 and after undergoing trial for about 3 years, the appellants Javed Khan, Vishal Yadav, Raju @ Anil, Rasul Siddiqi, Rajaram Nishad, Neeraj, Sanni Verma and Montu were convicted by judgment dated 26.03.2010 in ST No.09/2008 and and appellants Sanni Verma, Neeraj and Montu @ Daddu Dewangan appelllants were convicted by the learned Trial Court dated 08.09.2011 in ST No.71/2011. The appellants have filed the instant criminal appeals of the year 2010 & 2011 which are within limitation, however these appeals could not be disposed of by this Court in almost 15 years. It is also clear that for such delay the appellants are not at fault.

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Considering the peculiar facts and circumstances of these appeals as noted above, particularly the fact of time gap of around 19 years from the date of incident and the fact that the documents and the charge sheet is not available as such looking to the guidelines of the Hon’ble Apex Court, I am of the firm opinion that it would not be just or expedient to order re-trial and even same is not possible due to non availability of the charge sheet and in absence of record, it can also not be held that the appellants have rightly been convicted, as such the appellants have to be acquitted.

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In the result, all the appeals are allowed. The impugned judgments of conviction and order of sentence are hereby set

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aside. The appellants are acquitted of the aforesaid charges.

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The appellants are reported to be on bail.

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Keeping in view the provisions of section 481 of BNSS 2023, the appellants are directed to furnish a personal bond for a sum of Rs.25,000/- each before the Court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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If the appellants have paid the court fees, as the impugned judgments had directed the accused to pay fine, then the same be returned to the appellants.

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Copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/Rajani Dubey Judge

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Nirala

Rajaram Nishad v. State of Chhattisgarh

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Rajaram Nishad v. State of Chhattisgarh

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