B. C. JAUHARI, J. ( 1 ) THIS appeal has been filed by Dma Nath, Man Singh, Khanjhan and Tursi against their conviction under Section 107 Indian Penal Code and sentence of three years R. I. imposed by Sri S. K. Srivastava IX Addi. Sessions Judge, Bereilly-vide-his judgment dated 22-3- 1978. ( 2 ) THE case against the appellants was that on 25-4-1976 at about 5 p. m. when the first-informant Bhanu Pratap was sitting in the grove of Tota Ram carpenter, his uncle Krishna Murari injured was coming on the Mendh of his another uncle and the accused Dma Nath, Man Singh, Jhanjhan and Tursi arrived there, Dma Nath was armed with rifle, Man Singh with Kanta and Jhanjhan and Tursi with lathis. On the investigation of Dma Nath, Man Singh struck a blow on the head of Krishna Murari with the Kanta as a result of which he fell down. Thereafter, Jhanjhan and Tursi assaulted him with lathis. On seeing the incident Bhanu Pratap and others rushed towards Krishna Murari but Dma Nath fired towards them and the accused, therefore, could not be arrested. Bhanu Pratap brought his injured uncle to his house and took him to the hospital at Khamora and thereafter lodged the First Information Report at 10 p. m. to the police station which is at a distance of 5 miles from the place of occurrence. The injury report Ex. ka 6, supplementary report Ex. ka 4 and the injury memo Ex. ka 5 show that Krishna Murari has received as many as ten injuries consisting of incised wounds, lacerated wounds, contusion and abrasions. Injury Nos. 1 and 7 were caused by sharp edged weapon and others were caused by blunt weapon. ( 3 ) THE accused pleaded not guilty and attributed their implication in the case due to enmity. ( 4 ) THIS case relates to the district of Bareilly where it is said that the Record Room was burnt. There is a report in the case of the District Judge Bareilly that the record has been burnt. Hon. P N. Goel, J. ordered on 19-2-1981 that parties counsel will file copies of whatever paper they can within one month. On 21. 7. 1981 the learned counsel for the appellants stated that he has no papers of the case and the State counsel applied for one months time to supply the papers. Hon. P N. Goel, J. ordered on 19-2-1981 that parties counsel will file copies of whatever paper they can within one month. On 21. 7. 1981 the learned counsel for the appellants stated that he has no papers of the case and the State counsel applied for one months time to supply the papers. This one month expired and no paper was filed by the State. Thereafter, further time on two or three occasions was given to the State. The State counsel did not file any paper and ultimately the court ordered the appeal to be listed. ( 5 ) I have heard the learned counsel for the appellants and the learned State counsel at great length. The learned counsel for the appellants has drawn my attention to the case of Sita Ram v. State where a Division Bench of this Court has held 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. 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. Where, however, the matter comes up for consideration after a long gap of years as in the case reported in the ruling it would neither be just nor proper to direct retrial of the case, more so when even copies of the First Information-Report and statements of witnesses under Section 161 Criminal Procedure Code and other relevant papers have been weeded out or are otherwise not available. ( 6 ) IN view of the law laid down in the ruling the conviction recorded by the learned Sessions Judge cannot be sustained and the conviction has to be set aside. The short question that now remains is whether a retrial should be ordered in the circumstances of the case. ( 6 ) IN view of the law laid down in the ruling the conviction recorded by the learned Sessions Judge cannot be sustained and the conviction has to be set aside. The short question that now remains is whether a retrial should be ordered in the circumstances of the case. In the ruling referred to above retrial was not ordered on the ground of delay of eleven years from the date of occurrence and the further fact that the important papers had been weeded out. In the instant case although the occurrence took place about six years ago the learned counsel for the appellants has drawn my attention to certain portion of the judgment from which he has tried to make out a case that it would be futile to send the case back for retrial and it would amount to harassment to the appellants for no fault of them. It was firstly urged that there is no independent witness in the case. The three witnesses examined in this case were the injured Krishna Murari, his nephew Bhanu Pratap and one Puttu Lal those name was not mentioned in the F. I. R. It was also pointed out that the learned Sessions Judge explained away certain vital contradiction in his statement and did not pay due regard to them. Then the most important point urged in this case was that there was a delay of five hours in lodging the report the distance of the police station from the place of occurrence being five miles only and it was admitted that buses play between the place of occurrence and the police station at frequent intervals. It was further said that instead of going on a bus the complainant went on a Tonga and a distance of five miles even on a Tonga can be covered in less than one hour and so the filing of the report is extremity delayed. From the delay in the report the case built up was that possibly this incident did not take place at 5 p. m. when there was sufficient light but some time late in the evening when there was no light and it was not possible for the complainant to see the assailant and in the background of enmity between the parties which is admitted the appellants have been named in the F. I. R. after deliberations. ( 7 ) I have considered the argument raised on behalf of the learned counsel and feel myself in perfect agreement with them. While it is true that six years period is not such as to wipe out the memories of the witnesses and in a case where the offence is heinous and there is otherwise no apparent loopholes in the prosecution case, a retrial should and ought to be ordered, in the present case the order of a retrial would be an exercise of futility and would cause great harassment to the appellants. Under these circumstances I do not propose to order any retrial. ( 8 ) IN the result the appeal is allowed. The conviction and sentences recorded by the learned Sessions Judge against the appellants are set aside. The appellants are on bail. They need not surrender and their bail-bonds are discharged. Appeal allowed. .