JUDGMENT : Das, J. - The Appellant has been convicted u/s 302, Indian Penal Code, and sentenced to imprisonment for life by an order dated 17-4-1962 of the Sessions Judge, Koraput-Jeypore, in Sessions Case No. 32 of 1961, for having committed the murder of one Kusa Domb on 29-3-1961. 2. At the trial the accused pleaded not guilty to the charge. 3. At the commencement of the hearing of this appeal, it came to our notice that the original records in the case were found missing and the paper-book had been prepared from the records reconstituted mainly on the basis of notes of evidence taken by the counsel for defence. No certified copy of the evidence or the statement of the accused was available as no such copies were taken by either of the parties. 4. That such a reconstitution of records is permissible and the Court can proceed on the basis of such reconstituted records cannot be disputed in view of a Full Bench decision of the Madras High Court reported in Marakarutti and Ors. v. Veeran Kutti and Ors. ILR Mad 674 where it was held that when a Court loses its records, e.g., by accident, it has inherent power to reconstruct them and a Court hearing an appeal from the judgment of the first Court, has also inherent power to reconstruct the records lost in the first Court, or the appellate Court can, in such a case, call for a finding from the first Court as to what the records were; the method of reconstruction being by means of affidavits, counter-affiidavits, hearing of witnesses, the admission of copies etc. In fact we had no difficulty to proceed with this appeal on the basis of the reconstituted records had the records been complete and certified copies of the depositions of witnesses and other relevant secondary evidence been available. But unfortunately no such evidence is available here. 5. Section 423(1) of the Code of Criminal Procedure provides that after the admission and notice of the appeal, the appellate court shall send for the records of the case and peruse the same and hear the Appellant and his pleader and dispose of the case on merits. Thus the perusal of records of the case is one of the essential elements of the hearing of the appeal. Thus the perusal of records of the case is one of the essential elements of the hearing of the appeal. In the present case it is not possible for the appellate Court to peruse such records as no such records are available. 6. In a Division Bench decision of the Calcutta High Court reported in Abbash Ali and ANr. v. Emperor 19 I.C. 182 their Lord-ships held that the appellate Court must peruse the records. A decision upon a perusal only of the judgment appealed against is not legal. In the present case we are only left with the judgment of the trial court and other insufficient materials, such as the post mortem report, copy of the F.I.R. etc. from which it is not possible to come to any decision regarding the guilt or innocence of the accused. In the circumstances, the only course open to us is to direct a retrial of the case, however unfortunate it may be from the accused's point of view. That the appellate Court has a right to direct a retrial cannot be disputed in view of the clear provisions of Section 423(1)(b) of the Code of Criminal Procedure and that such a course is also permissible as appears from a decision reported in In Re Sevugaperumal and others, where it was held that if after filing of an appeal, the records are destroyed by fire and no copies are available for the appellate Court, the only course open to the appellate Court is to order a retrial. In another case reported in: In Re N.S. Subramania Ayyar AIR 1943 Mad 391 a de novo trial was ordered in the case as the records were found to have been burnt down. 7. In view of this position, it is only left to us to have a retrial of the accused and accordingly the case must go back to the Court of the Sessions Judge, Koraput-Jeypore, for a retrial according to law. 8. In the result, the conviction and sentence passed upon the Appellant are set aside; but as the Appellant is accused of a non-bailable offence and has been in custody throughout, he may continue as before and the hearing of the case may be expedited. Misra, J. 9. I agree.