In 2003, the man was held guilty of culpable homicide not amounting to murder and sentenced to six years of rigorous imprisonment, along with a fine of Rs 25,000. The Delhi High Court recently set aside the conviction and sentence of a man accused of homicide on the ground that trial court records could not be found or reconstructed, 19 years after he challenged the trial court’s decision. A single judge bench of Justice Jasmeet Singh in its November 28 order observed that perusal of the trial court record is an essential element to the hearing of the case, in order to affirm the conviction of the man. “Every appellant has a right to satisfy the appellate court that the material evidence available on record did not justify his conviction and this is a valuable right which cannot be denied to an appellant,” the high court said, adding that according to settled principles of criminal jurisprudence, every person accused of a crime carries with them the “presumption of innocence” even when they challenge the decision of the trial court in appeal. The man had challenged the conviction and order of sentence passed by the trial court on October 20, 2003, and October 23, 2003, respectively. He was held guilty of culpable homicide not amounting to murder (Section 304) along with common intention (Section 34) of the Indian Penal Code IPC and was sentenced to six years rigorous imprisonment along with a fine of Rs 25,000. He moved the high court in appeal, which was admitted on November 7, 2003, and the high court called for ‘lower court records’. In his case, however, the records were not submitted. In February 2009, the high court asked the registry to explain whether the trial court records had been traced. In July 2009, the high court directed the deputy registrar concerned to hold an enquiry on “why despite directions” the lower court records were not placed before it. It was additionally directed that “every effort would be made to produce” the records before the next date of hearing. Then in October 2009, the high court directed the counsel for the accused to approach the counsel for the respondent and get the reconstructed record supplied by the counsel of the accused certified by the counsel for the respondent, so that the high court could proceed to hear the matter. However, even this did not work out. Then, in August 2010, another attempt was made to re-construct the trial court record by examining the case diary. In September 2010, based on whatever trial court records could be reconstructed, the registry was asked to compile a file. Thereafter, the matter was repeatedly adjourned. On July 26 this year, the matter was directed to be listed for hearing. The man was entitled to get the entire trial court record in accordance with the high court procedures. During the course of the hearing, senior advocate Jayant Sud, appearing for the accused, argued that a bare perusal of the file would show that it is incomplete in “almost all aspects”. He drew the high court’s attention to a list of documents which could not be filed due to their nonavailability with the police and which were part of the trial court record, including the inquiry report of the assistant commissioner of police (ACP) concerned, final inquiry report of the sub divisional magistrate (South), list of witnesses, post mortem report, forensic science laboratory report as well as the medico-legal case report. Besides these, even the depositions of both prosecution and defence witnesses were not re-constructed and were not available on the court record. After observing the facts, the high court took the view that despite repeated efforts, the trial court record could not be reconstructed. “As already indicated, the order dated 12.11.2009 categorically states that the trial court record has been lost. I am of the view that in the present case, every possible effort has been made to re-construct the trial court record. Despite all the efforts by this court, the registry, the learned counsel for the parties, the trial court record has not been re-constructed as the same is lost,” the high court said. It was also noted that the witnesses in the case “had already turned hostile” and additionally, a re-trial is also not in the interest of justice as the material documents such as the ACP’s inquiry report of the ACP, final inquiry report of the SDM, post-mortem report etc were not available. Allowing the appeal, the high court also referred to a 2004 decision of the Supreme Court in State of UP v. Abhay Raj Singh and Anr wherein the apex court had held that where reconstruction of record is not possible to facilitate the hearing, the high court can dispose of the case.