JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Record of criminal appeal has been received back after a direction from the Apex Court dated 7.2.2005. Record of trial Court in the instant appeal could not be traced out despite several order and best efforts of the Court. On perusal of various letters sent to District Judge, Ballia, it transpires that record of instant criminal appeal No. 2120 of 1981, Raj Narain Pandey v. State, arising from Session Trial No. 152 of 1980, under Section 307 I.P.C. P.S. Bansdih Road, District Ballia, decided by Sri Hem Raj Ram, Ist Additional Sessions Judge, Ballia, vide judgment and order dated 17.9.1981, could not be reconstructed. 2. Intimation was sent to Section Officer, criminal department by means of letter dated 20.12.2002 after obtaining due endorsement from Additional Sessions Judge, Ballia. There are various letters which clearly establish that record of Session Trial was weeded out, therefore, appeal was finally allowed by this Court vide judgment and order dated 16.1.2004. 3. The judgment was challenged by the State before the Apex Court whereby appeal filed by the State, was allowed. The judgment and order dated 16.1.2004 passed by this Court acquitting appellant was set aside. Matter was remanded to this Court to decide it on merits after giving adequate opportunities to the parties for reconstruction of record. As already stated above, various letters and efforts on the part of Additional Sessions Judge, Ballia, neither statement nor any other document could be procured as such record could not be reconstructed. The instant appeal has come up before this Court for hearing after remand from the Apex Court. 4. Heard Sri A.K. Shukla, counsel appearing for appellant, Sri Surendra Singh, Sri V.B. Tripathi, and Ms. Rashmi Jaiswal, A.G.A. appearing for the State. 5. Having no other option, I proceed to decide this appeal on the basis of judgment itself. 6. The counsel for appellant has placed reliance on a decision of the Apex Court in the case of Eliamma and another v. State of Karnataka, JT 2009 (2) SC 358, bringing to notice of the Court relevance and applicability of Section 360 Cr.P.C., which is quoted below : “360. 6. The counsel for appellant has placed reliance on a decision of the Apex Court in the case of Eliamma and another v. State of Karnataka, JT 2009 (2) SC 358, bringing to notice of the Court relevance and applicability of Section 360 Cr.P.C., which is quoted below : “360. Order to release on probation of good conduct or after admonition.—(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offenders, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour : Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2). (2) Whether proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years’ imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders”. However, this provision relates to release on probation of good conduct or after admonition. 7. Learned A.G.A. has placed reliance on a decision of the Apex Court in the case of State of U.P. v. Abhai Raj Singh another, 2004 (50) ACC (SC) 691, wherein question of grant of acquittal and its sustainability in absence of record of the case was depreciated when appeal was allowed only on this account and matter was remitted for afresh consideration with an alternative suggestion that appropriate Court would be directed for a retrial after reconstruction of record. 8. Since it is evident from various letters as already mentioned above, first information report, injury report and statement are not available, record could not be reconstructed. The matter has come up for hearing after 28 years. It is not even known as to whether complainant or eyewitnesses are alive or not. It is incomprehensible to imagine in such a circumstance that retrial can be conducted after lapse of 28 years. Witnesses would not remember the incident and to subject them to cross examination is a futile exercise and will yield no good result. 9. Appeals which are coming up before this Court after lapse of 30-35 years, most of the accused or complainant are no more alive. I think that in the given circumstances, a direction for retrial will not be fruitful and only amount to wastage of time of various authorities of the Court as well as everyone associated with the trial. 9. Appeals which are coming up before this Court after lapse of 30-35 years, most of the accused or complainant are no more alive. I think that in the given circumstances, a direction for retrial will not be fruitful and only amount to wastage of time of various authorities of the Court as well as everyone associated with the trial. It is not known as to how complainant, witnesses, Investigating Officer and doctor could be traced after lapse of such a long time. 10. In the circumstances, I have no other option but to proceed to decide appeal on the basis of judgment of Additional Sessions Judge itself. I have gone through judgment impugned. No doubt, conviction is under Section 307 I.P.C. and sentence is of four years R.I. but perusal of the injuries alleged to be caused will be a relevant factor and consideration. 11. PW-3 Dr. I.D. Dwivedi, examined injury of injured and deposed in Court and proved injury report. Only part of injury of injured Tarkeshwar Pandey, was mentioned in the judgment, which is quoted below : 1. Punctured wound 1 ½ cm x ½ cm x depth kept under observation, on the left side chest, VI intercostal of chest. Margin clean cut. Injury kept under observation. Injury caused by some pointed sharp weapon. Injury fresh. The other part of injury report whether there was any internal damage or the opinion of doctor, whether it was dangerous to life or not and also any further treatment was required are not evident from the judgment impugned. 12. Learned A.G.A. has only tried to draw my attention to the fact that injury 1 ½ cm x ½ cm is on the left side of chest though X-ray was advised but nothing has been said in the judgment. It leaves me with no alternative but to arrive at a conclusion that there was no X-ray performed since it was not exhibited and nothing was mentioned in the judgment itself. 13. On perusal of the entire judgment, it transpires that any discussion has been made on the cross examination or statement of the doctor whether injury was dangerous to life, which could have resulted in death of the injured. 13. On perusal of the entire judgment, it transpires that any discussion has been made on the cross examination or statement of the doctor whether injury was dangerous to life, which could have resulted in death of the injured. It is not known as to what led the Additional Sessions Judge to come to a conclusion that injury could have proved fatal, thereafter convicted the accused under Section 307 I.P.C. Only consideration of Additional Sessions Judge is that the injured received spear injury, it has come in evidence and witness of fact stated that he had fallen unconscious due to injury, though in certain part of the judgment, statements of other eyewitnesses have been discussed. It is surprising that Additional Sessions Judge has conveniently omitted the deposition of the doctor, which was very relevant so as to form an opinion whether conviction can safely be made under Section 307 I.P.C. or any other offence of lesser gravity of other provision of Indian Penal Code causing bodily injury on the person. 14. In view of the aforesaid discussion, I consider that sufficient justice will be done in case conviction under Section 307 I.P.C. is converted into Section 324 I.P.C. In my opinion the injuries were caused with a definite intention to cause death. The injuries cannot be said to be even grievous in nature. In this view of the entire facts and circumstances, the appellant is sentenced to the period already undergone by him. The judgment and order dated 17.9.1981 passed by Ist Additional Sessions Judge, Ballia, is set at naught. Bail bonds as well as sureties of appellant are discharged. The instant appeal is partly allowed. ————