The Delhi High Court has set aside the conviction and 6-year jail term awarded to a man in 2003, observing that the Lower Court Record has been lost and that re-trial is not in the interest of Justice as the material documents are not available.

The Bench of Justice Jasmeet Singh observed that "...in order to affirm the conviction of the appellant, the perusal of the Trial Court Record is the essential element of hearing of the appeal. 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."

In this case, the Appeal had been preferred against the conviction and order of sentence passed by the ASJ, Delhi wherein the appellant was found guilty for offences under section 304(Pt. II)/34 of the Indian Penal Code and was sentenced to 6 years rigorous imprisonment along with fine of Rs. 25,000/-, which stands paid but the Court could not proceed further with the appeal, as the Trial Court record was not available for perusal.

Senior Advocate Jayant Sud appeared on behalf of the appellant and APP Aashneet Singh appeared on behalf of the respondent.

The Court noted the list of non-available documents which included material documents such as Inquiry Report of the ACP, Final Inquiry Report of the SDM, Seizure Memos, Post-Mortem Report, FSL/Viscera Report, Inquest Report, MLC and depositions of the witnesses and said that despite the repeated efforts of the High Court, the trial Court could not be re-constructed and conducting re-trial is not in the interest of justice

The Court further noted that "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." and moreover, the witnesses had already been turned hostile and the trial Court's impugned judgment was based on preponderance of probabilities.

The High Court observed that the perusal of Trial Court records is an essential element of hearing the appeal and that every appellant has a right to satisfy the Appellate Court that the material evidence available on record did not justify his conviction and said that "As per settled principles of criminal jurisprudence, every accused carries with him the presumption of innocence even at the appellate stage."

Accordingly, the appeal was allowed and the judgment and order of sentence were set aside.

Cause Title- Ramesh Kaushik v. State of Delhi

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Delhi High CourtJustice Jasmeet Singh

Sanjoli N Srivastava