Twelve years after an accused was convicted for murder and criminal conspiracy,the Bombay High Court has sought to know if a retrial is possible in the case due to the peculiar circumstance of the convicts appeal. As per the appellate side rules,records of the case are destroyed by the state if an appeal is not preferred within five years after the conviction. In appeal filed by Akhilesh Mishra,currently lodged in Paithan open prison,the appeal was preferred only in 2005 even though he was convicted in 1998 on charges of murder at Girgaum Chowpatty in 1996. Mishras appeal is now on shaky grounds as all the records pertaining to his case have been destroyed as per the rules. The question that arose before the court is whether convicts are aware of their right to appeal and whether there is any panel of legal aid or jail authorities who inform them in detail on their appeal rights. Additional public prosecutor Sangeeta Shinde submitted that there is a facility and panel of legal aid lawyer who visit jails and communicate the rights of the convicts. Division bench of Justice Ranjana Desai and Justice Mridula Bhatkar,after going through Supreme Court observations in such cases held on Tuesday that the convict will have to be acquitted in the event of two available options namely reconstruction of records or retrial is untenable due to lack of evidential records. The trial court had earlier informed the HC that the records cannot be reconstructed. The court was of the view that the government should stop the practice of destroying records especially in view of advance technologies that is available now. Why dont you preserve records on CDs, Justice Desai asked. The court also wanted to know why Mishraa appeal was not filed immediately after conviction. The court observed that this could also be a ploy as other convicts will file appeals late and take advantage of the destroyed records to get acquitted in the case. The superintendent of the jail will also inform the convict about right to appeal, Shinde said. Lawyer Abhaykumar Apte,who was assisting the court and petitioners lawyer Indrayani Koparkar pointed out that there is already an earlier judgment of the HC in September 2009 by a different bench which directed the government to make arrangements for communicating the right of appeal to convicts as well as making soft copies of the records . The court has now asked the Registrar (Judicial) to reply on what action has been taken in this regard. The court has also sought to know from the investigating officer if there is enough evidence,like witnesses,for conducting a retrial. The court will hear the case after two weeks.
