1. This appeal is directed against the judgment and order dated 9978 passed by Shri Giriraj Kishore, VI Additional Sessions Judge, Bareilly, in
Sessions Trial No. 490/77. Jamuna Prasad, appellant was found guilty under Section 302,I.P.C. and was sentenced to imprisonment for Shiv Lal
and Ram Prasad, appellants were further life. Jamuna Prasad, Bhoop Ram, bund guilty under Section 323/34, I.P.C. and each of them was
sentenced to rigorous imprisonment for six months. Bhoop Ram, Shiv Lal and Ram Prasad, appellants were not found guilty of the charge of under
Section 302/34, I.P.C. and were acquitted.
2. We have heard learned Counsel for the appellants and the State. The record of Sessions Trial No. 490/77 is not available. It is said to have
been destroyed in a fire which had broken out in Bareilly judgeship. The order was passed for reconstruction of record. The District Judge
reported vide his D.O. letter No. 159/VIII dated August, 26/27, 1983 that the reconstruction of the record is not possible, due to reasons
mentioned in the report of Shri Sushil Kumar, VI Additional District and Sessions Judge, Bareilly. The report of Shri Sushil Kumar shows that
notices were issued to the accused persons. They were duly served on July 1, 1983. They moved an application through their Counsel that they do
not possess any paper pertaining to the aforesaid sessions trial. They also asserted that no paper is available with their Counsel. The D.G.C.
criminal was also requested to file the papers relating to the aforesaid sessions trial. He also informed that due to fire which broke out in
November, 1979, all the records have been burnt and now no paper is available. The S.S.P., Bareilly was also requested to send the case diary.
He informed that in spite of best efforts, the case diary is not available. Under the circumstances it was reported that the record cannot be
reconstructed.
3. Learned Counsel for the appellants has invited our attention to the decision in Sita Ram v. State, 1981, Cr. L. J. 65 and Ram Nath v. State,
1982 AC.C. 128 and has urged that the conviction of the appellants cannot be affirmed in the absence of record and they are entitled to be
acquitted in the circumstances of the case. He has submitted that the alleged occurrence had taken place on 6377 and on account of sheer lapse of
time it will not be just and expedient to direct retrial. We have considered the facts and circumstances of the case and have come to conclusion that
the contention of the learned Counsel for the appellants must be upheld. In the case of Sita Ram, the law is enunciated in the following terms:
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 S.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.
4. The incident had taken place on 23871 and the appellants in the case of Sita Ram, were convicted by sessions court on 181174. Copies of
F.I.R. and statements of witnesses recorded under Section 161, Cr. P.C. had been weeded out and were not available at the time of hearing of the
appeal. All attempts to reconstruct the record had proved futile. In such a situation it was considered not to be feasible for the appellate court to
affirm the order of conviction. The appeal was allowed and the appellants were acquitted and it was not considered to be just or expedient to
order for retrial. The law laid down in the case of Sita Ram was followed m the latter case of Ram Nath cited above. In that case also the record
of the case could not be reconstructed and since the incident was shown to have taken place more than 11 years earlier, it was found to be not
desirable to direct the retrial and the appellants were acquitted. We are facing a similar situation in the present appeal also. The District Judge has
reported in clear terms that it is not possible to reconstruct the record. The case diary is also not available and the occurrence is said to have taken
place about 19 years ago. The memory of the witnesses must have faded by now and in the absence of any papers, it is not considered feasible
that they would contribute to fair and proper administration of public justice. It has also been pointed out that only three eyewitnesses were
examined and two of them were disbelieved by trial court and the conviction of the appellants is based on testimony of the first informant alone.
Under the circumstances we consider that it will not be proper nor in the interest of justice to direct the retrial which should have been ordinarily
done. In the light of the circumstances of the case which exist at present, there is no option but to allow the appeal, setting aside the conviction of
the appellants and to acquit them.
5. For the above reasons the appeal is allowed. The judgment and order under appeal are set aside. All the appellants namely, Jamuna Prasad,
Bhoop Ram, Shiv Lal and Ram Prasad are hereby acquitted of all the charges framed against them and the various sections under which they have
been convicted by trial court. All of them are stated to be on bail. They need not surrender. Their bail bonds are discharged.