Judgment :- Janarthanam, J. This is an appeal by one Sornam -convict-appellant against the judgment dated 30.9.1983 of the Court of Sessions, Kanyakumari District at Nagercoil in Sessions Case No.86 of 1983 convicting and sentencing her under Sec.302, I.P.C., to imprisonment for life. 2. Aggrieved by the conviction and sentence the appeal had been preferred and the same had been admitted on 25.1.1984, Since the appeal was pending for more than four years, the learned counsel appointed by the State Legal Aid Board filed an application in Crl.M.P.No.7016 of 1988 for the release of the petitioner on bail during the month of October, 1988 and when the application came up for hearing, we called for a report from the office as to why this criminal appeal had not been posted so far for final disposal. The Office submitted a report on 11.10.1988 to the following effect: "It is respectfully submitted that the said appeal has been admitted on 25.1.1984. The records have been omitted to be called for on the said date due to oversight. Subsequently, the records were called for on 3.10.1988. The Sessions Judge, Kanyakumari at Nagercoil while submitting the records has stated in his letter D.No.5958/88 dated 6.10.1988 that the Part II records and the material objects were destroyed in the year 1987, since no appeal information has been received from the High Court. The available records, namely, charge, plea of the accused examination of accused before Sessions Court, and exhibits etc., are submitted." It is clear from the report submitted by the office that Part II records and material objects were destroyed in the year 1987 and the records pertaining to the charge, plea of the accused, examination of the accused before the Sessions Court, and exhibits alone are available. 3. The moot question that arises for consideration is as to whether it is legally permissible to dispose of the appeal on merits, on perusal of the available part of records. The answer to the question appears to be an ‘emphatic No’ on the face of the express and explicit provision contained in Secs.385(2) and 386, Cr.P.C. The procedure as contemplated under the aforesaid sections of the Criminal Procedure Code makes it obligatory for the Court to peruse the records and bear the parties before deciding the appeal. 4. The answer to the question appears to be an ‘emphatic No’ on the face of the express and explicit provision contained in Secs.385(2) and 386, Cr.P.C. The procedure as contemplated under the aforesaid sections of the Criminal Procedure Code makes it obligatory for the Court to peruse the records and bear the parties before deciding the appeal. 4. The learned counsel appearing for the appellant has drawn our attention to the two decisions, in a bid to solve the tangle. They are - Vishwa Nagh and another v. State of U.P., 1985 Crl.L.J. 1928. It is observed therein as follows: "Pending appeal against conviction and sentence by the trial Court, all the case records were found to have been burnt and only the complaint and statements of six witnesses and the F.I.R. regarding the incident were reconstructed by the complainant from his papers. 15 documents relied on by the accused showing that the witnesses were inimical towards the accused, but friendly with the complainant, statements of three witnesses examined by the defence and those of the accused recorded under Sec.313, Cr.P.C., could not be reproduced. The incident had occurred 11 years ago. Since under Secs.385(2) and 386, Cr.P.C., the appellate Court was bound to peruse the records and hear the parties before deciding the appeal and a retrial after so long a time was impracticable besides causing prejudice to the accused, the appeal was allowed setting aside their conviction and sentence. Sitaram v. State, 1981 Crl.L.J. 65: 1981 All.Cr.R. 431, followed." Sitaram and others v. State, 1981 Crl.L.J. 65. The observations appearing in paragraph 11 therein areas follows: "On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us, we are of the opinion 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 records of the case is one of the essential elements of 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. 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 opinion that if the time lag between the date of 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 Sec.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 even copies of F.I.R. and statements of witnesses under Sec.161, Cr.P.C., and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during the investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State." The ratio of the aforesaid decision is that where during the pendency of the appeal, before the High Court, the record in the case was lost or destroyed, and there was no possibility to reconstruct the records, the materials available on record being not sufficient to dispose of the appeal on merits and when the incident took place long before, the accused was entitled to acquittal and retrial was not to be ordered. 5. As adverted to earlier, the Part II records of the case were destroyed and there is no possibility to reconstruct the records. 5. As adverted to earlier, the Part II records of the case were destroyed and there is no possibility to reconstruct the records. The materials available on record, namely, charge, plea of the accused, examination of the accused before the Sessions Court, and the exhibits are not sufficient for the disposal of the appeal on merits. In such a circumstance, applying the ratio of aforesaid decisions, the appeal has to be allowed, keeping in mind that the incident had taken place on 28.2.1983 almost six years before. 6. In the result, the appeal is allowed, the conviction and sentence are set aside and the appellant-accused is acquitted. She is directed to be set at liberty forthwith unless required to be detained in connection with any other case.