Narayanan. R (Advocate) 11 August 2008

Evidence- URGENT PLS - deposition lost from the custody of trial court .

Dear Friends, kindly help to tacle the following situation: that a trial magistrate convicted an accused in a criminal case u/s 138 of NI Act, based on deposition of witness and documents. appealed by accused to appellate court. in appeal the deposition of some witness lost from the custody of the trial court while trasiting from it to appellate court. whether the court can decide the appeal in this situation or what relief any supporting judgment is there pls help me thanking you. adv.narayanan@gmail.com

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Narayanan. R (Advocate) 11 August 2008

I think the appelate court can reconstruct the evidence by re-examining the witnesses by whose depositions is lost.

is it true., if so, the witnesses may refuse to answer like early that would loose our case is nt it?

K.C.Suresh (Advocate) 12 August 2008

The best course is to remand the case to re-examine the witnesses s fresh. Any deviation from the early statement can be noted by the trial magistrate from the avialble records like deposition of witnesses, 313 etc. If the lost evidence is not so meterial to decide the issue relevent in hand then the appeal court can recontrust the evidence with out prejudice to the parties.

Narayanan. R (Advocate) 19 August 2008

see relavant citation in 1923 AIR 672 Madras HC. the appeal court can decide the issue on hand with available records

Narayanan. R (Advocate) 19 August 2008

recently a case in bombay high court, entire records had been destroyed by the trial court based on its administration rules i.e. if no appeal filed within 5 years, the records can be destroyed. but the accused appealed after 5 years before the HC. the HC called for records but resulted great shock. therefore HC acquitted the accused. reported in HINDU paper. date not known but this month.