I.P. Singh, J.
1. This is an appeal by Vishwanath and another, convict appellants against .the judgment and order dt. 1-4-1977 of Sri Govind Prasad, IX Additional District and Sessions Judge, Allahabad, in Sessions Trial No. 273 of 1976 convicting and sentencing each one of the appellants under Section 323 read with Section 34 I.P.C. to three months R.I.
2. The record of the Sessions Trial was reported to be burnt. Accordingly orders were passed by this Court for reconstruction of the said record. The District Judge reported that the reconstruction of the record was possible. This fact is reported in the office report dt. 31-8-1983 appearing on the order sheet. However, the perusal of the order sheet further shows that the counsel for the complainant (on whose complaint the proceedings were started) filed certain papers along with an affidavit that those were true copies. Accordingly it was ordered by this Court on 18-24983 that the said papers be sent to the trial Court for reconstruction of the record, if possible, after giving notices to the complainant as well as to the accused appellants. Ultimately the IX Additional Sessions Judge, Allahabad, submitted his report dt. 3-5-1983 that in response to the notices issued to the parties they appeared before him on 16-4-1983 along with their learned Counsel. The affidavit was filed by Prabhunath complainant that the annexures 1 to 8 to the affidavit D/- 13-3-1982 were correct and true copies of the record. On the other hand Bhagwan Din, one of the accused-appellants filed counter-affidavit challenging the correctness of the said copies. The learned IX Additional Sessions Judge returned the finding that Annexures 1 to 8 in question were true copies of the original documents and they could be safely accepted as such and it could be justified that they were true copies.
3. Those annexures happened to be the complaint of Prabhunath complainant regarding the incident in question. Annexures 2 to 7 are the copies of the statements of six witnesses who were examined in the Sessions Trial, Annexure 8 is the copy of the F.I.R. dt. 28-3-75 regarding the incident in question which was said to have taken place that very day.
4. In this way only the above documents can be taken to have been reconstructed. In the counter-affidavit of Bhagwan Din appellant it was also alleged that he had filed more than 15 documents in the said Sessions Trial showing enmity with the witnesses and also friendship between the witnesses and the complainant. Those documents were lost and could not be reproduced. There is no rebuttal of this fact. The appellants had also examined three witnesses named in the counter-affidavit. The judgment of the Court below also indicates the names of those three witnesses who were examined in defence. It was further mentioned in the counter-affidavit that the statements of the accused were also/recorded under Section 313 Cr. P.C. and they too were not on the record. It can well be presumed that such statements must have been recorded by the Sessions Court. It, therefore, follows that the record of the Court below has only been reconstructed partially. In the case of Sita Ram v. State 1981 Cri LJ 65 it was held that the procedure as pointed under Sections 385(2) and 386 Cr. P.C. makes it obligatory for the court to peruse the record and hear the parties before deciding the appeal. The relevant observation appearing in para 11 is as follows:
On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are of the opinion that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal. The appellant has a right to try to satisfy the appellate Court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of F.I.R. statements of witnesses under Section 161 Cr. P.C. reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduly long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of F.I.R. and statements of witnesses under Section 161 Cr. P.C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statments made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State.
5. The ratio of the above decision was followed in the case of Ram Nath v. State 1981 All Cri R 431 in which it was confirmed that where during pendency of the appeal before the High Court, the record of the case was lost and various attempts made to reconstruct the record failed, the material available on record being not sufficient to dispose of appeal on merits and where the incident took place 11 years earlier, the accused was entitled to acquittal and retrial was not to be ordered.
6. In view of the above decisions which are of this Court, when the record could not be reconstructed, it is not possible to affirm the conviction. The material on the record cannot be said to be sufficient for disposal of the appeal on merits. The appeal, therefore, has to be allowed, keeping in mind that the incident in the present case had taken place on 28-3-1975- almost about 10 years back.
7. The appeal is allowed. The convictions and sentences awarded by the court below are set aside. The applicants are on bail. They need not surrender to their bail bonds which are discharged. They stand acquitted of the charges against them.