Eleven years after the conviction of Akalesh Kumar alias Mithun Mishra in a murder case, the Bombay High Court has asked whether a retrial can be conducted as the case papers were not there.
“Why hasn’t the government started preserving documentary evidence in a criminal case…on a CD [compact disc] instead of destroying case papers,” asked Justice Ranjana Desai while hearing an appeal in the case. The registry had destroyed the case papers. “Otherwise, as per the Supreme Court judgement we will have to acquit him.”
The SC says that if case papers have been destroyed then the court should first try to reconstruct the documents. Else, the court should order a retrial by the sessions court. Or acquit the accused.
Kumar was convicted in September 1998 for murdering a fellow street dweller at Girgaum Chowpatty in January 1996. He appealed in January 2005, said his advocate Indrayani Koparkar.
“By the time his appeal came up in the HC [in August 2008], the sessions court registry had destroyed his case papers,” said Koparkar. The HC Appellate Manual says case papers should be destroyed if an appeal is not filed in the HC in five years.
The HC has asked the sessions court’s registrar to try to reconstruct the case papers. However, the registrar sent a report in September 2008 citing inability to do this due to “non-availability of case papers”.
The court has asked the investigating officer or a senior inspector with D.B. Marg police station to file an affidavit stating whether re-trial was possible. It has also given the judicial registrar a week to list the steps taken to implement the HC order to preserve documents on CDs.
“There are several cases where papers are being destroyed. Are the convicts informed about their right to appeal?” Justice Desai asked. Additional Public Prosecutor Sangeeta Shinde said jail officials and lawyers who visit inmates inform them about their right to appeal. “In that case you should take convict’s sign or thumb impression,” said Justice Desai. “This could be a ploy (not to file appeal). Hardened criminals would wait for five years for records to be destroyed then file an appeal.”