JUDGMENT R.N. Gurtu, J. - The Appellants in this case were convicted by the learned Sessions Judge, Muzaffarnagar on 22-1-1951 Under Sections 304 IPC and 148 IPC and were sentenced to five years rigorous imprisonment and six months rigorous imprisonment respectively in Criminal Sessions Trial No. 66 of 1950 in respect of an offence said to have been committed on 2-4-1950. 2. Their appeal in this Court was admitted on 24-1-51 and the Appellants were ordered to be released on bail to the satisfaction of the District Magistrate of Muzaffarnagar. When this appeal came up before me for hearing it was agreed by counsel for the State, the complainant and the Appellants that the entire record of the case had been lost. Inasmuch as the appeal had already been admitted, and Section 423 of the Code of Criminal Procedure enjoins that the record must be perused, I could not possibly decide the appeal as an appeal. I could not decide it by merely reading the judgment. By my order dated 10-10-1955 I sought the assistance of counsel and the parties to enable me to reconstruct the record. Neither the counsel for the Appellants nor the counsel for the complainant was able to help me in this regard. On 23-4-56 I asked the learned Government Advocate to file an affidavit indicating what evidence was still available and what documents could be produced. According to the affidavit dared 1-8-1956 sworn by one Sheodutt Sharma, an Ahalmad in the court of the Sub-divisional Magistrate Kairana, district Muzaffarnagar all the prosecution witnesses produced in the Sessions Court as also the defence witne ses were still alive and were available save and except Bhagwana and Srimati Ramdei. From para. 6 of the affidavit referred to it also appears that fresh copies of most of the Documents which were filed by the prosecution in the case are available inasmuch as these were mostly copies of orders of courts or copies of revenue registers. 3. It is conceded before me by both the counsel for the Appellants and counsel for the State that although I could not dispose of the appeal in terms of Section 423 Code of Criminal Procedure, because there is no record but I can under my inherent power set aside the conviction and sentence and order a retrial. This Court has in similar circumstances in Queen-Empress v. Khimat Singh 1889 A.W. . This Court has in similar circumstances in Queen-Empress v. Khimat Singh 1889 A.W. . 55 ordered a retrial of the accused. The same view was taken In re Sivugaperumal and Ors. AIR 1943 Mad. 391. Support for the point of view that in the circumstances a retrial may be ordered is obtained from the case Arjun Padhi Vs. State of Orissa, AIR 1952 Ori 237 . Courts appear to have come to the conclusion that where the record had been lost it was in the interest of the accused person himself that a retrial should be ordered, and have ordered a retria1 or ordered the court concerned to use secondary evidence of such part of the record as was destroyed (such secondary evidence being available) and to proceed with the trial. 4. In the present case there are no dispositions of the witnesses available, nor even any certified copies or any plain copies thereof in the possession of counsel for the parties or of the parties themselves. In the circumstances it would be in any case necessary for the evidence to be re-recorded. So far as the documents are concerned, copies of practically all the documents filed would be obtained again having regard to the nature of the copies filed previously. The question which I have still to consider, however, is whether I should in all the circumstances of this case order a retrial. 5. The first thing to be noticed is that this is a case which relates to an offence which was committed more than six years ago and five years have elapsed since the judgment of the learned Sessions Judge convicting the Appellants was passed. If there is to be a retrial witnesses would be re-deposing in regard to facts which had taken place more than six years previously and quite a strain would be put on the memory of witnesses. 6. Apart from this as is admitted before me by learned Counsel for the State the first information report is no longer available, either in the original or in the copy. It is also admitted before me that the statements of witnesses taken by the police u/s 161 Code of Criminal Procedure are not available because these have also been weeded out in the ordinary course. 7. It is also admitted before me that the statements of witnesses taken by the police u/s 161 Code of Criminal Procedure are not available because these have also been weeded out in the ordinary course. 7. Under these circumstances it seems to me that there could now be no adequate trial of the case, if it is sent back for retrial. Witnesses would be deposing to what happened more than five years ago and it would not be possible to effectively check the truth or otherwise of their evidence without the assistance of the first information report and the statements made to the police. 8. For these reasons and in he totality of the circumstances of this case it seems to me that I should not order a retrial. The order in this case under my inherent jurisdiction, therefore, will be that the convictions and sentences and all proceedings recorded by the learned Sessions Judge against the Appellants be and they are hereby set aside. In the circumstances no new trial of the Appellants is ordered. The Appellants are on bail. They need not surrender to their bails.