JUDGMENT Honble Mrs. Poonam Srivastav, J.—The instant appeal arises from the judgment and order dated 25.9.1981 convicting the appellant under Section 304, I.P.C. and sentencing him to 7 years R.I. in Session Trial No. 88 of 1981, State v. Janardan Singh and another. 2. The entire record of the Court below could not be traced out and, therefore, paper book could not be prepared. Several letters for reconstruction of the lower Court record failed to yield any result. Several orders as well as letters of the District Judge, Ballia and report of the Chief Judicial Magistrate, Ballia are available on record but the record could not be traced out or reconstructed. No document proved and exhibited are available. The complainant of the case is also reported to be dead in the letter dated 5.10.2007 sent by Sri Virendra Singh, the then District Judge, Ballia. No document is available in the office of S.H.O., Bansdih, District Ballia, therefore, even an order of reconstruction or retrial was fruitless. In the aforesaid letter, it was also apprised that Sri Badre Alam who was found to be the main culprit, has already been punished by deduction of pension of 2% in every case. 3. This appeal pertains to the year 1981 and the incident is also of February, 1981, Police Station Bansdih, District Ballia, therefore, keeping the appeal pending is also of no use. 4. Sri P.N. Mishra, Senior Advocate who had filed the appeal on behalf of the appellant Sachita Nand, has placed reliance on a decision of the Apex Court; State of U.P. v. Abhai Raj Singh, 2004 SCC (Criminal), 904 where the Apex Court was of the view that acquittal not to be justified if the record of the trial Court is destroyed and not made available and, therefore, the Hon’ble Supreme Court was of the view that the acquittal by the High Court in absence of record was improper. The proper course in view of the Apex Court was to direct for reconstruction of the record and then hear the appeal. Learned counsel has placed paragraph 10 of the said decision. The proper course in view of the Apex Court was to direct for reconstruction of the record and then hear the appeal. Learned counsel has placed paragraph 10 of the said decision. Concluding part of the said decision is quoted below : “...........If it is possible to have the records reconstructed to enable the High Court itself to hear and dispose of the appeals in the manner envisaged under Section 386 of the Code, rehear the appeals and dispose of the same, on their own merits and in accordance with law. If it finds that reconstruction is not practicable but by ordering retrial interest of justice could be better served—adopt that course and direct retrial - and from that stage law shall take its normal course. If only reconstruction is not possible to facilitate the High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the Sessions Court is also rendered impossible due to loss of vitally important basic records - in that case and situation only, the direction given in the impugned judgment shall operate and the matter shall stand closed. The appeals are accordingly disposed of.” 5. A Division Bench of this Court in the case of Sita Ram and others v. State, 1981 Crl. LJ 65, allowed ample opportunity to the State as well as appellants for reconstruction of the record but it was of no avail. A question arose whether the appeal can be decided in absence of the record. It is true that perusal of the record is obligatory and merely perusal of the judgment of the learned Session Judge is useless. If the Session Judge arrives at a certain conclusion after assessing the evidence and perusal of the documents brought on record, the appellate Court is required to form its independent view and assail the evidence as well as the anomalies, contradictions etc. on behalf of the accused who is given second innings before the appellate Court. The appellate Court cannot be expected to be guided by the views of the trial Court. This completely looses the significance of institution of an appeal. on behalf of the accused who is given second innings before the appellate Court. The appellate Court cannot be expected to be guided by the views of the trial Court. This completely looses the significance of institution of an appeal. It is only those cases where the appellate Court proceeds to decide a case in a situation where the record is destroyed and there is no possibility of retrial and reasoning recorded by the Session Judge is pointed out to be perverse and against the settled principles of law, an endeavour can be made by the appellate Court to arrive at a conclusion which can be said to be justified from all the corners. Merely perusal of the judgment cannot be said to be sufficient for affirmance of the conviction unless the entire record is perused. This view was also upheld in another Division Bench case; Aziz Khan v. State of U.P., 1992 (29) ACC 223. Similarly in the case of Daya Ram v. State of U.P., 1992 ACC (Suppl.) 219 another Division Bench of this Court was of the view that in the event, the entire lower Court record is destroyed and reconstruction is not possible as per report of the Session Judge and relevant document is not available for perusal of the appellate Court, it has no option except to allow the appeal. 6. On the basis of over all assessment of the various decisions and facts and circumstances of the present appeal, it is evident that the conviction cannot be upheld unless and until record is available. I have no other option. In the instant case, after going through the correspondences for reconstruction of the file and also the fact that the complainant is dead, he being the only witness in the case, no retrial is feasible and, therefore, in view of these circumstances, I proceed to discuss the findings of the learned Session Judge. 7. The learned Session Judge has recorded the conviction on the basis of evidence of solitary testimony of the first informant. Admittedly there is an old litigation and the fact that occurrence has taken place in the month of February at 7.00 P.M. inside his house where there was no one else present when the Ballam blow was wielded on the complainant. Admittedly there is an old litigation and the fact that occurrence has taken place in the month of February at 7.00 P.M. inside his house where there was no one else present when the Ballam blow was wielded on the complainant. He is unscathed, his wife received injuries who finally succumbed whereas according to the assertion of the first informant, the accused had come to cause injury to the first informant himself. The wife attempted to shield him. It is not understandable as to why the accused appellant did not try to harm PW-1. Besides the fact that he has taken the injured all alone on a rickshaw whereas the specific case of the prosecution is that on the alarm of the complainant, witnesses Sheo Nath Singh, Raghunath Singh, Khakhan Singh and others had arrived at the scene of occurrence and also said to have recognized the accused persons in the light of lantern which was burning there. The learned Session Judge while discussing the fact has clearly mentioned that Laxman Singh took out the Ballam from the body of his wife and proceeded to the Police Station in a rickshaw along with his wife and Ballam. However, his wife died on account of the injuries on the way near the Post Office. It was only the rickshaw puller in whose Supurdagi he left the dead body of his wife. The deceased had two punctured wound and one contusion. The doctor who performed post mortem, has mentioned three ante-mortem injuries as discussed in the judgment of the Court below. Once again it is not understandable since there was no witness in the near vicinity while the accused caused three injuries to the deceased leaving the actual persons who was intended to kill. There was also an accused Janardan and the learned Session Judge had acquitted him on assumption that Janardan may be falsely implicated on account of enmity. Just because the report was prompt one, it cannot be concluded and justified upholding the conviction of the appellant without going through the relevant documents and statement in evidence. 8. In the circumstances, the appeal is allowed. The judgment and order dated 25.9.1981 passed by the Sessions Judge, Ballia is set aside. The appellant is acquitted. He need not be present in the Court. ————