JUDGMENT P.N. Goel, J. 1. MUNNAUR alias Munnar, resident of village Ahmadpur Asrauli, police station Puramufti and Pyare resident of Bamrauli, police station Dhoomanganj, district Allahabad have been convicted and sentenced under section 394 IPC to undergo R. I. for 5 years by order dated 28-8-1975 passed by 5th Additional Sessions Judge, Allahabad. 2. JAGDISH Narain Tripathi, PW 1. was Manager Daoba Automobile Petrol Pump, Bamrauli. After realisation of diesel dues on 16-9-1969 at about 6 P. M. he was returning with a sum of Rs. 1774/- from the petrol pump. Two appellants came out of a Ber Grove. They stopped him, assaulted him with lathis and took out the said sum from his pocket. Seva Lal, Sheo Charan and Anant Ram turned up on hearing his alarm. The appellants ran back into the grove. Jagdish Narain Tripathi asked Seva Lal to inform bis. master Tirath Ram Kohli. Tirath Ram immediately came up in a motor car. The bicycle of Jagdish Narain was handed over to Mohd. Talib of his village. Tiirath Ram Kohli and Jagdish Narain went in search of the appellants who were known to Jagdish Narain from before, but they were not found. A first information report of the occurrence was lodged at police station Dhoomanganj at 7.10 P. ML by Tirath Ram Kohli. On the date of occurrence at 9.45 P. M. Dr. S. D. Malviya examined Jagdish Narain Tripathi and found five contusions on his back and right leg. 3. THE appellants did not admit the allegations of the prosecution. 4. THE prosecution examined witnesses in support of its cases. The Additional Sessions Judge found the prosecution case true and convicted the appellants. By cross-examination the appellants wanted to show that Jagdish Narain Tripathi was not possessed of the sum of Rs. 1774.00. The Investigating Officer tried to gather evidence in support of the allegation of the prosecution. The Additional Sessions Judge observed that the Investigating Officer was not justified in doing so. 5. ON a consideration and appraisal of the evidence led by the prosecution, the Additional Sessions Judge found the case of the prosecution proved and convicted the appellants. 6. DURING the pendency of this appeal there has taken place a compromise between the parties. The compromise has been duly verified by the Chief Judicial Magistrate under the orders of this Court dated 26-7-1979. 6. DURING the pendency of this appeal there has taken place a compromise between the parties. The compromise has been duly verified by the Chief Judicial Magistrate under the orders of this Court dated 26-7-1979. In the compromise petition it has been stated that the case has been compounded and that the appellants be acquitted. A fire broke out in the civil court building at Allahabad in which quite a large number of records were burnt. On this account the record of the court below is not available and is not before this Court. The parties were directed by this court to file copies of whatever papers they had got. But the parties did not file a single copy. Therefore the record could not be reconstructed. 7. LEARNED counsel for the parties have been heard. Learned counsel for the appellants pointed out that in 1980 AWC 299 Awadhesh v. State, against an order dated 19-3-1975 passed by 10th Additional Sessions Judge, Allahabad this Court allowed the appeal and set aside the conviction of the appellants because record was not available and it could not be reconstructed. This appeal was decided on 17-3-1980 by brother V. N. Varma, J. He observed as follows :- "Ordinarily, in such a situation, I would have remanded the case for retrial but this course of action will not serve any useful purpose because of the nonavailability of any paper connected with this case. Trying the case afresh without any such paper will be nothing but an exercise in futility and is bound to cause much prejudice to the appellants. Therefore, in these circumstances, the only course open to this court is to acquit the appellants. This may be unfortunate but it cannot be helped. Under law the presumption is that the accused is innocent till he is shown to be otherwise. In this case, in the absence of any evidence it cannot be said with certainty that the appellants were guilty of the offences with which they stood charged." 8. APPELLANTS Munnan and Pyare cannot be acquitted in view of the above observation. Order has to be passed looking to the facts of each case. The above observations are obviously confined to the case before brother V. N. Varma, J. Section 386 of the New Code of Criminal Procedure lays down powers of the appellate court. APPELLANTS Munnan and Pyare cannot be acquitted in view of the above observation. Order has to be passed looking to the facts of each case. The above observations are obviously confined to the case before brother V. N. Varma, J. Section 386 of the New Code of Criminal Procedure lays down powers of the appellate court. This section provides that after perusing the record and hearing the appellant or his pleader and the public prosecutor, the appellate court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may, in an appeal from a conviction, reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction or alter the finding maintaining the sentence or with or without altering the finding, alter the nature or the extent, or the nature and extent of the sentence but not so as to enhance the same. It is evident that the appellate court has to examine the record and then to decide the appeal. In the present case the record is not available and it cannot be reconstructed. Therefore this court cannot pass any order in accordance with section 386. 9. SECTION 482 reserves inherent powers of the High Court. This section lays down that nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. under this provision if the record is not available or it cannot be reconstructed,, this Court, to secure the ends of justice, can pass an order for the retrial on a fresh trial of the case. While passing such an order this Court has to consider whether the retrial would serve the ends of justice. 10. IN the present case there has taken place a compromise between the parties. In the compromise petition it has clearly been stated that the appellants be acquitted. An offence punishable under section 394 IPC is not compoundable (vide section 329 CrPC). But the effect of the compromise is that the court can show leniency in the matter of sentence. Therefore, the compromise cannot be considered as a wholly waste paper. In the compromise petition it has clearly been stated that the appellants be acquitted. An offence punishable under section 394 IPC is not compoundable (vide section 329 CrPC). But the effect of the compromise is that the court can show leniency in the matter of sentence. Therefore, the compromise cannot be considered as a wholly waste paper. It has its own effect. Learned counsel for the appellants pointed out that if the case is sent back for retrial or a denovo trial, the prosecution witnesses were not likely to come up because the complainant has already compromised with the appellants. This probability cannot be ruled out. In this circumstance the ends of justice will not be served by passing an order for the trial of the appellants afresh. 11. TAKING into consideration the special feature arising in the present case, it will not be illegal and unjust if the conviction of the appellants is set aside and the case is not sent down for a trial denovo. Ordered accordingly. 12. THE appellants are on bail to which they need not surrender. Their bail bonds are discharged. Appeal dismissed.