G P. MATHUR, J. The 10 accused who are respondents in Government Appeal No. 663/78 were prosecuted under Sections 147/148/149/307/302, IPC in Sessions Trial No. 70 of 1977. The learned 1st Additional Sessions Judge, Bareilly by judgment and order dated 17-11-1977 convicted Aziz Khan under Section 304, Part T, IPC and sentenced him to undergo 10 years R. I. and other 9 accused were acquitted. Against his conviction, Aziz Khan has filed Criminal Appeal No. 2742 of 1977 while as the State has filed Government Appeal No. 663 of 1978 against the acquittal of 9 accused from all the charges as well as acquittal of Aziz Khan under Sections 148/149/307/302, IPC. Both the appeals are connected and are being disposed of by a common order. 2. The record of this case was burnt on account of fire in the Record Room in the district Court at Bareilly. By the order dated 16-12-1982 passed by this Court, Sessions Judge, Bareilly was directed to reconstruct the record. Thereafter, file of the case has been reconstructed on the basis of uncertified copies of statements of witnesses and typed copies of some judgments which were produced by the complainant Jhandu Khan. The record is still incomplete as the copy of the FIR, post-mortem report, injury reports of the injured and copies of the documents which had been filed by the prosecution and defence and which had been exhibited are not on record. Under sub-section (2) of Section 385, Cr PC. It is obligatory on the part of the Appellate Court to peruse the record before deciding the appeal against an order of conviction. The Appellate Court cannot affirm the conviction of an accused unless it peruses the entire record. This court has held that where record has been lost or destroyed and it is not possible to reconstruct the record, it will not be just or proper to direct the retrial of the case if a long gap has elapsed since the commission of the offence. This court has held that where record has been lost or destroyed and it is not possible to reconstruct the record, it will not be just or proper to direct the retrial of the case if a long gap has elapsed since the commission of the offence. In Sita Ram and others v. State, 1981 Cr LJ 65, a Division Bench of our court has held as follows: "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 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 pro per 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 instant case, it would neither be just nor proper to direct retrial of the case, more so when even copies of First Information Report and statements of witnesses under Section 161, Crpc and other relevant papers have been weeded out or are otherwise not available. " In Ram Nath v. State, 1981 All Cr R 431, another Division Bench of our court took the same view that where material available on record was not sufficient to dispose of the appeal on merits and it was not possible to recons truct the record, no order for retrial should be passed, if incident had taken place long back. In this case, the court took the view that as the incident had taken place 11 years back, it was not proper to direct retrial and the appeal of the accused was allowed and they were acquitted. In the case in hand, the occurrence had taken place on 15-10-1976 i. e. 15 years back and the complete record has not been reconstructed. In the case in hand, the occurrence had taken place on 15-10-1976 i. e. 15 years back and the complete record has not been reconstructed. Applying the principle laid down in the above-mentioned authorities, we are of the opinion that the appeal of Aziz Khan should be allowed and his conviction and sentence should be set aside and the Government appeal against acquittal of the accused-respondents is liable to be dismissed. 3. We have examined the re-constructed record and on perusal thereof, we are of the opinion that the conviction of Aziz Khan as ordered by the learned Sessions Judge cannot be sustained even on merits. 4. The case of the prosecution, as disclosed in the statement of PW 1, Jhandu Khan, in short, is that all the accused as well as complainant belong to village Dohns. Injured Nabi Sher is cousin and injured Dafedar is nephew of complainant Jhandu Khan. Alam Khan - deceased was his distinct cousin. All the accused are also related inter se. It is alleged that at the time of incident, proceedings under Section 107/116, Cr PC were going on between the parties, Smt. Raibi, who was aunt of accused Kamal Khan, had sold her 56 bighas land to Suleman Khan and Mian Khan etc. , regarding which objection had been riled by Kamal Khan. It is alleged that at the time of incident, proceedings under Section 107/116, Cr. P. C. were going on between the parties. Smt. Raibi, who was aunt of accused Kamal Khan, had sold her 56 bighas land to Suleman Khan and Mian Khan etc. , regarding which objection had been filed by Kamal Khan. It is alleged that some litigation was going on and mutation had not taken place. But Suleman Khan and Mian Khan were in possession over the said land. The vendees gave the aforesaid land to the complainant Jhandu Khan and Nabi Sher and others on Batai and they were cultivating the same for about a year. This fact was not relished by the accused. They started having a grudge and in consequence thereof proceedings under Section 107/116, Cr PC were started between the parties. At about 7-30 or 7-45 a. m. on 15-10-1976, the complainant Jhandu Khan was going towards east when he heard some alarm. This fact was not relished by the accused. They started having a grudge and in consequence thereof proceedings under Section 107/116, Cr PC were started between the parties. At about 7-30 or 7-45 a. m. on 15-10-1976, the complainant Jhandu Khan was going towards east when he heard some alarm. He saw that 6 accused, namely: Sayeed Khan, Wali Khan, Nabi Husain, Ali Husain, Asghar Khan and Ali Ahmad in who were all armed with lathis were assaulting Nabi Sher towards south of field of Kamal Khan. On hearing his alarm, Dafedar Khan, Usman Khan, Alam Khan and Mohd. Sayeed Khan came on the spot and all of them asked them not to assault Nabi Sher. Meanwhile, in accused Aziz Khan, Tasawwar Khan and Maley Khan, all armed with pistols and Kamal Khan armed with gun came from north-eastern side and fired from their respective weapons. The pistol fire hit the complainant Jhandu Khan and Dafedar Khan and firing done by Kamal Khan hit Alam Khan who fell down and died on the spot. Thereafter, the accused ran away towards east. The complainant then went to the Police Station, Bhojipura which is 7 Km. from the place of occur rence and lodged the FIR at 8-30 a. m. on the same day. It is further alleged that Jhandu Khan, Dafedar Khan and Nabi Sher were medically examined in Bhojipura Hospital. After the FIR was lodged PW 5 Surendra Singh, SO ofp. S. Bhojipura came to the spot and started investigation. He prepared inquest report on the body of deceased Alam khan, the actual inquest report was prepared under his dictation by S. I. Dadhich who died subsequently. The SO sent the injured persons for medical examination and also recorded state ments of the witnesses under Section 161, Cr PC. After completing the investi gation, he submitted charge-sheet against all the ten accused persons. 5. The prosecution in support of its case, examined in all 5 witnesses, the accused examined one witness, namely DW 1 Akbar Khan and Suleman Khan was examined as Court witness. As stated earlier, learned Sessions Judge has convicted only Aziz Khan under Section 304, Part I, IPC and has acquitted remaining accused. 6. In this case, the prosecution has examined only two eye witnesses, namely PW 1 Jhandu Khan and PW 2 Nabi Sher Khan. The statement of PW 1. As stated earlier, learned Sessions Judge has convicted only Aziz Khan under Section 304, Part I, IPC and has acquitted remaining accused. 6. In this case, the prosecution has examined only two eye witnesses, namely PW 1 Jhandu Khan and PW 2 Nabi Sher Khan. The statement of PW 1. Jhandu Khan as given in examination-in-chief, has already been mentioned in the earlier part of the judgment. In the cross-examination he has stated that field in which incident took placs belongs to Suleman Khan and the same was in his possession for the last one year. He further stated that he had not seen any Revenue record, but Smt. Raibi had told him about 5 years back that Suleman had purchased the said plot and he was owner thereof. He also admitted that the aforesaid land was of joint Khata of Kamal Khan and husband of Smt. Raibi. He also stated that he did not know that proceedings under Section 145, Cr PC had been drawn between Smt. Raibi and Kamal Khan and that he was appointed Supurdar of the plot in question by the Court more than 7 or 10 years back. He further denied the suggestion that the possession was given of Kamal Khan or that Kamal Khan was in possession over the plot in question for more than 10 years. Regarding the factum of incident, he stated that the accused had started firing and they were at a dis tance of 30 paces and more than 3 shots were fired. On being questioned further, he stated that he could not see as to whose pistol shot hit which per son, but he had seen firing done by Kamal Khan hitting the deceased Alam Khan. He also stated that he went to the PS 15-20 minutes after the incident by a cycle. He denied the defence suggestion that he had never been in pos session over the land over which incident took. place or that the same was in possession of Kamal Khan. He also denied the suggestion that the accused Tasawwar and Aziz Khan were sowing in the field when Nabi Sher came arm ed with Lathi and tried to assault them, on which Tasawwar used paina in his self-defence due to which, Nabi Sher. received injuries. place or that the same was in possession of Kamal Khan. He also denied the suggestion that the accused Tasawwar and Aziz Khan were sowing in the field when Nabi Sher came arm ed with Lathi and tried to assault them, on which Tasawwar used paina in his self-defence due to which, Nabi Sher. received injuries. He also denied the defence suggestion that Dafedar Khan and Alam Khan reached the spot armed with spears and tried to forcibly dispossess Tasawwar and Aziz Khan and then Aziz Khan fired due to which, complainants side received injuries. The other eye witnesses, namely PW 2 Nabi Sher Khan has corroborated PW 1, Jhandu Khan and has stated about the prosecution case in his examination-in-chief. In his cross-examination, he stated that he had heard about the sale deed being executed by Smt. Raibi in favour of Suleman 4-5 years back. Initially Smt. Raibi was getting the land cultivated on Batai. After the execution of sale deed, Smt. Raibi had filed a case on the ground that she had not executed any sale deed and had continued to remain in possession and getting the land culti vated on Batai. After the case had been decided in favour of Suleman by the Commissioners Court, he gave the land to him (Nabi Sher Khan) on Batai. He further stated that patwari had recorded possession of Scot. Raibi he had filed an appeal in Allahabad and she had obtained stay order in the said appeal, which was initially dismissed in default but he was still pending. The Pairvi on behalf of Smt. Raibi was done by the accused Kamal Khan and he had brought the stay order. He denied the suggestion that Smt. Raibi never came in possession over the land and the same was in possession of Kamal Khan for the last 10 years. He also denied the suggestion that he had never cultivated the aforesaid plots. He further denied the suggestion that he was not ploughing the field, but the accused Tasawwar and Aziz Khan were sowing the same. He also denied the suggestion that he tried to assault with Lathi, when Tasawwar used paina in his self-defence, due to which, he received injuries. He further denied the suggestion that Jhandu Khan, Dafedar and Alam Khan came armed with spears and tried to assault and dispossess when Aziz Khan fired causing injuries to the aforesaid persons. He also denied the suggestion that he tried to assault with Lathi, when Tasawwar used paina in his self-defence, due to which, he received injuries. He further denied the suggestion that Jhandu Khan, Dafedar and Alam Khan came armed with spears and tried to assault and dispossess when Aziz Khan fired causing injuries to the aforesaid persons. 7. The prosecution has also examined PW 3, Dr. DBS Harit who con ducted the post-mortem on the dead body of the deceased Alam Khan on 16-10-1976. He found 5 gun shot injuries and 2 abrasions on his body. According to the doctor, injuries could have been caused at about 7-30 p. m. on 15-10-1976 and the same were sufficient in the ordinary course of nature to cause death, PW 4 Radhey Shyam Sharma was Head Constable at PS Bhojipura who deposed that FIR was lodged at 8-30 a. m. on 16-10- 1976 by Jhandu Khan and he registered the case and made necessary entries regarding the same in the GD PW 5, Surendra Singh SO of PS Bhojipura stated that he went to the spot after the spot FIR was lodged and deposed about the various steps taken by him towards the investigation of the case. He also stated that copy of the stay order passed by the Board of Revenue was served upon Suit. Raibi on 21-10- 1976, but the same was given at the police station by Kamal Khan on 12-10-1976. He stated in his cross- examination that he did not see the sale deed, but he tried to ascertain as to which party was in possession at the time of incident and recorded statement of several witnesses in this connection. He however, admitted that he did not examine the Lekhpal. 8. The accused examined DW 1. Akbar Khan, Pradhan of the village who stated that he had seen Tasawwar Khan and Aziz Khan accused sowing the field on the date of incident at about 6-00 - 6-15 a. m. He also stated that Kamal Khan, Wall Husain and Raj Khan were in possession over the aforesaid fields. He is not an eye witness of the incident. The Court examined Suleman Khan as Court witness. In examination-in-chief, he stated that he purchased 56 bighas of land from Smt. Raibi in village Dohna, but he did not know the number of the plots. He is not an eye witness of the incident. The Court examined Suleman Khan as Court witness. In examination-in-chief, he stated that he purchased 56 bighas of land from Smt. Raibi in village Dohna, but he did not know the number of the plots. There were 4 co-tenure holders of the said land and that Kamal Khan was a co-tenure holder alongwith Smt. Raibi. He also stated that his father had talked to Kamal Khan before the execution of the sale deed and his father paid the sale consideration and he might have seen revenue records. He also admitted that soon after the execution of sale deed, Smt. Raibi filed an objection and litigation started and his name had not been recorded in revenue records. He also stated that he had given the land on Batai in tho year 1976 and Nabi Sher Khan and Jhandu Khan were Bataidars, but he did not know the names of all the Bataidars. The stay order had been brought from the Board of Revenue prior to murder. In cross-examination, he admitted that he came to know about the stay order after the incident and that Nabi Sher Khan, Dafedar Khan, Jhandu Khan and Mohd. Sayeed were Bataidars. On being cross-examined by the defence, he stated that he did not know at what rate the land was sold to him. After the stay order had been served, his father went to Allahabad for Pairavi of the case. He admitted that Jhandu Khan was his Phoopha, He denied the suggestion that he had not given the land on Batai to Jhandu Khan, Nabi Sher Khan and others. 9. PW 1, Jhandu Khan has stated that Suleman Khan had given the land to him on Batai about one year before the incident. PW 2 Nabi Sher Khan has stated in his cross-examination that initially Smt. Raibi had given the land to him on Batai and since two years before the murder, Srnt. Raibi was getting the land cultivated on Batai. It was after Suleman had won the case from the Commissioners Court that he gave the land to him on Batai. Thus, both the witnesses have contradicted each other on the point as to when the land was given to them on Batai. Raibi was getting the land cultivated on Batai. It was after Suleman had won the case from the Commissioners Court that he gave the land to him on Batai. Thus, both the witnesses have contradicted each other on the point as to when the land was given to them on Batai. Both the witnesses have also admitted the fact that even after the execution of sale deed in favour of Suleman, muta tion had not been affected in his favour. PW 2 Nabi Khan has stated that in Revenue Record, name of Smt. Raibi was mentioned DW 1. Akbar Khan who is Pradhan of the village has stated that the disputed land was in posses sion of Kamal Khan, Wali Husain, Raj Khan and Aziz Khan. He had seen Tasawwar and Aziz Khan sowing the field at about 6-00 - 6-15 a. m. on the date of incident. CW 1, Suleman has stated that he had purchased the land from Smt. Raibi, but he did not know the number of any plot. He has further stated that after execution of the sale deed in his favour, he cultivated the land for 3 years but in the year 1975, he gave the land on Batai. He also admitted that he did not know the price of the land and further stated that his father knew details of the land. Statement of these witnesses create the names of all the Bataidars. In cross-examination, he admitted that he did not know the serious doubt on the veracity of the prosecution case that the complainant namely Jhandu Khan and Nabi Sher Khan were in possession over the land, over which the incident took place on the date of incident. On the contrary, it appears that it was Kamal Khan and others who were in possession over the said land. 10. The accused persons had filed voluminous documentary evidence, details of which have been given in the judgment of learned Sessions Judge. The aforesaid documentary evidence (Ex-Kha-I to Ex-Kha 9) is at present not available on record. On examination of the aforesaid evidence, learned Sessions Judge had held that Smt. Raibi had only sold half share in 25 plots to Suleman Khan and others and that it was not specifically stated in the sale deed that Smt. Raibi was in exclusive possession over any one of these plots. On examination of the aforesaid evidence, learned Sessions Judge had held that Smt. Raibi had only sold half share in 25 plots to Suleman Khan and others and that it was not specifically stated in the sale deed that Smt. Raibi was in exclusive possession over any one of these plots. He has further held that documentary evidence showed that the case under Section 145, Cr PC was decided against Smt. Raibi and in favour of Raj Khan and others and that on the date of execution of sale deed, Smt. Raibi was not in possession and as such, the possession of the plots in dispute could not have been delivered to Suleman Khan and others. Learned Sessions Judge has recorded a clear finding that Jhandu Khan and Nabi Sher Khan were not in possession as Bataidars over the plots in dispute and that the prosecution case that complainant was in possession over the plot in dispute on the date of incident was false. Since the documentary evidence is not on record. We have no option but to accept the findings of learned Sessions Judge regarding posses sion namely that complainant Jhandu Khan or Nabi Sher Khan were not in possession over the plot in dispute at the time of incident. 11. Since the prosecution case that Jhandu Khan and Nabi Sher Khan were in possession over the plot in dispute at the time of incident, has been found to be incorrect and false and defence version that complainant party had gone to dispossess them by force or was trying to take forcible possession of the field which was in their possession has been accepted as correct, the accused cannot be held guilty of having committed the offence of murder. So far as 6 accused namely Sayeed Khan, Wali Khan, Nabi Husain, Ali Husain, Asghar Khan and Ali Ahmad are concerned, they were armed with Lathis and are alleged to have assaulted Nabi Sher Khan. They are not alleged to have caused any injury to the deceased Alam Khan. Except for one injury, all other injuries of Nabi Sher Khan were simple in nature. It is also not known as to who caused the solitary grevious injury which was found on the body of the deceased. They are not alleged to have caused any injury to the deceased Alam Khan. Except for one injury, all other injuries of Nabi Sher Khan were simple in nature. It is also not known as to who caused the solitary grevious injury which was found on the body of the deceased. In our opinion, these six accused were fully within their right to use force and resist the complainant party namely Jhandu Khan and others from taking forcible possession of the plots over which the incident took place. Therefore, their acquittal appears to be fully justified. 12. The injury reports of the injured Dafedar Khan and Jhandu Khan show that each one of them received a single pellet. Therefore the prosecution case in that 3 accused namely Aziz Khan, Maley Khan Tasawwar Khan had fired from their pistols due to which, these persons were injured does not appear to be correct. In case, 3 persons had fired from pistols, the 2 injured would have sustained much greater number of injuries. The deceased Alam Khan has sustained 5 gun-shot injuries which are on the neck, right and left fore-arms, abdomen and thigh. It appears to us that firing was done from a considerable distance as there is great dispersal of the pellets. It is quite possible that Dafedar Khan and Jhandu Khan also received one pellet injury each by same shot. We are not prepared to accept that Dafedar Khan and Jhandu were injured Khan on account of firing done by 3 accused, namely Aziz Khan, Maley Khan and Tasawwar Khan. 13. The learned Sessions Judge has convicted Aziz Khan by placing reliance upon his statement under Section 312, Cr PC Aziz Khan has stated that Jhandu Khan, Dafedar Khan and Alam Khan wanted to assault him with spears and then he fired in self-defence. The learned Sessions Judge has held that as the defence case viz, some persons from the side of the complainant were armed with spears was false and further as no one from the side of accus ed had received injuries, the act of shooting by gun exceeded the right of self-defence of property. It is on this finding that the learned Sessions Judge con victed Aziz Khan under Section 304, Part I, IPC. In our opinion, the reasons given by the learned Sessions Judge for convicting Aziz Khan cannot be accept ed. It is on this finding that the learned Sessions Judge con victed Aziz Khan under Section 304, Part I, IPC. In our opinion, the reasons given by the learned Sessions Judge for convicting Aziz Khan cannot be accept ed. According to the case of the prosecution, it was Kamal Khan who had fired upon the deceased Alam Khan and not Aziz Khan. The role assigned to Aziz Khan by prosecution was that he alongwith Maley Khan and Tasawwar Khan fired from pistols which caused injuries to Jhandu Khan and Dafedar Khan. The injuries received by the aforesaid two persons are simple in nature. Moreover, we have discarded the prosecution case that these 3 persons fired from their weapons causing injuries to aforesaid two injured persons. Thus, it cannot be held that Aziz Khan had fired upon the deceased Alam Khan. The learned Sessions Judge placed reliance upon part of the statement of accused Aziz Khan under Section 313, Cr PC for holding that he had exceeded the right of self-defence. The learned Sessions Judge has discarded that part of the statement of Aziz Khan wherein, he had stated that Jhandu Khan, Dafedar Khan and others tried to assault with spears, but placed reliance upon that part where, he had stated that he fired in self-defence. It is well-settled that the Court cannot split the statement of an accused under Section 313, Cr PC in two parts and accept one portion and reject another. The court should either accept, it as a whole or reject it as a whole. It is not permissible for a court to accept the inculpatory part of the answers given by an accused in the statement given under Section 313, Cr PC. In Narain Singh v. State of Punjab, 1963 ALJ 330 at 333, it was held as follows: "if the accused person in his examination under Section 342 confesses to the commission of the offence charged against him, the court may, relying upon that confession proceed to convict him, but if he does not confess and in explaining circumstances appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It is not open to the court to dissect the statement and to pick out a part of the statement which may be incriminative and then to examine whether explanation furnished by the accused for his conduct is supported by the evidence on the record. It the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admis sion cannot be used against him divorced from the explanation. " The same view was taken by the Honble Supreme Court in Narain Singh v. State of Punjab, 1963 ALJ 330866 and Yusuf Ali Ismail v. State of Maharashtra, AIR 1968 SC 147 . Therefore, in our opinion, the learned Sessions Judge had erred in convicting Aziz Khan by placing reliance upon part of his statement. Since, it was not the prosecution case that he fired upon deceased Alam Khan, he cannot be held guilty of having committed his murder. Again, if his statement is accepted as a whole, no offence is made out against him. In this view of the matter, the conviction of Aziz Khan cannot be sustained. 14. In the result, Criminal Appeal No. 2742 of 1977 filed by Aziz Khan is allowed. His conviction and sentence are set aside. He is on bail. He needs not surrender. His bail bonds and sureties are discharged. The Govern ment Appeal No. 663 of 1978 is dismissed. The sureties and bail bonds furnished by the accused respondents are also discharged. Appeal allowed. .