JUDGMENT Hon’ble Rajesh Chandra, J.—Accused appellant Brahmanand Shukla has filed this appeal against the judgment and order dated 23.9.1981 passed by the Sessions Judge, Allahabad in S.T. No. 18 of 1980, State v. Brahmanand and others, convicting and sentencing the accused appellant with imprisonment for life for the offence under Section 302 IPC. 2. At the outset, it is proper to mention that after filing of the appeal, the original record of the Sessions Trial was summoned from the District Court, Allahabad. The District Judge reported that the file is missing and attempts are being made to trace the file. Ultimately when the file could not be traced, this Court vide order dated 18.7.2008 in view of the judgment of Hon’ble the Apex Court in State of U.P. v. Abhay Raj Singh, AIR 2004 SC 3235 , ordered the District Judge, Allahabad to take steps for reconstruction of the record by calling for the documents if are available with the police, the complainant, the accused and the D.G.C. The record shows that the Additional District & Sessions Judge vide letter dated 24.10.2008 informed this Court that the D.G.C.(Criminal), the accused and the police station concerned could not make any document relating to the case available. It was also informed that the name of the complainant of the case could not be known hence the complainant could not be informed with regard to the reconstruction of the file. 3. When the matter came up before us, we made enquiries from the appellant with regard to the name and address of the informant and ultimately the particulars of the informant were given by the appellant. Notices were issued to the informant, who appeared before us personally. He was instructed to contact his private counsel who had conducted the case in the trial Court and to find out whether any document relating to the case is available with him or not. The informant on a subsequent date informed that no such document is available with his private counsel as well. Thus the endeavour of this Court to get the record reconstructed did not succeed. 4. The facts as discernible from the copy of the judgment which has been filed alongwith this appeal are that on 9.11.1979 sports were going on at the playground of Ishwar Saran Intermediate College. Thus the endeavour of this Court to get the record reconstructed did not succeed. 4. The facts as discernible from the copy of the judgment which has been filed alongwith this appeal are that on 9.11.1979 sports were going on at the playground of Ishwar Saran Intermediate College. A large number of persons, including the deceased Ashok Kumar, his brother Vinod Kumar and his friends Subhash Chandra Kesarwani and Ashok Kumar Pal had collected around the playground to witness the sports. At about 11.10 a.m. accused Bharat Tewari, Brahmanand Shukla and Krishna Ram Shukla came to the playground on a scooter. The scooter was being driven by Bharat Tewari and the other two armed with guns were on the pillion seat. After coming to the playground, they stood behind the deceased and his brother and friends referred to above. At that point of time accused Gopal Shukla also arrived on a cycle and was armed with a gun. Further case of the prosecution is that appellant Brahmanand Shukla pointing towards the deceased Ashok Kumar said to Bharat Tewari “ he is the person who had humiliated him in the wrestling competition and that he be done away with”. Accused Bharat Tewari endorsed the above said saying. The appellant Brahmanand Shukla thereafter fired a shot with his single barrel gun hitting the deceased on the right side of his chest. As a result of this firing,the said Ashok Kumar fell down on the ground. The accused Bharat Tewari, Krishna Ram Shukla and Gopal Shukla then declared that in case anybody comes to face them, he would be shot dead. Thereafter the accused Bharat Tewari, Krishna Ram Shukla and Brahmanand Shukla left the place on their scooter and simultaneously the accused Krishna Ram Shukla in order to ward off the chasers fired a shot from his gun. The fourth accused Gopal Shukla also left the spot on his cycle. 5. Vinod Kumar, brother of the deceased and his friends chased the assailants for some distance but after Krishna Ram Shukla fired a shot, they got frightened and gave up the chase. Then Vinod Kumar with the assistance of Ashok Kumark Pal took the deceased on a scooter to the Swarup Rani Hospital, Allahabad where Doctor R.B. Singh declared him dead. Vinod Kumar, brother of the deceased and his friends chased the assailants for some distance but after Krishna Ram Shukla fired a shot, they got frightened and gave up the chase. Then Vinod Kumar with the assistance of Ashok Kumark Pal took the deceased on a scooter to the Swarup Rani Hospital, Allahabad where Doctor R.B. Singh declared him dead. Vinod Kumar then got the report scribed at the Hospital by Krishna Kumar Yadav and lodged the same at 12.30 p.m. on 9.11.1979 itself at the police station concerned. On the basis of this report, a chik report was prepared and the case was registered in the General Diary at serial No. 19. The investigation was taken up by SI Ram Krishna Upadhya who recorded the statements of the witnesses under Section 161 Cr.,P.C. and also prepared the site plan of the spot. He found a pair of chappals, an empty cartridge and the silencer of the scooter on the spot and took these articles in his possession under separate memos. The recovered articles were sealed separately. The Investigating Officer also collected the plain and blood-stained earth from the spot and sealed them separately under memo. The inquest upon the dead-body of the deceased Ashok Kumar was conducted by the Investigating Officer at the Swarup Rani Hospital and after completing the inquest, the dead-body was sealed and sent for post mortem through Constables Jagannath Prasad and Mani Shanker. 6. The post mortem examination upon the dead-body of the deceased was conducted by Dr.K.P.Singh, Moti Lal Nehru Hospital, Allahabad on 10.11.1979 at 12 ‘ 0 clock. The following ante mortem injuries were found on the dead-body : 1. Gunshot would of entry, 1" x 1" x cavity deep, on the right side of chest at the level of right nipple and 2 3/2" lateral to the right nipple. Blackening was present. No tattooing of skin found. Margins were lacerated and inverted. 2. Lacerated wound of 1" x 3/4" x skin deep, on inner aspect of the right upper arm 6" above the elbow joint. 3. Abrasion 1/4" x 1/4" on back of chest in the left scapular region 3 1/2 “ away from mid line. Blackening was present. No tattooing of skin found. Margins were lacerated and inverted. 2. Lacerated wound of 1" x 3/4" x skin deep, on inner aspect of the right upper arm 6" above the elbow joint. 3. Abrasion 1/4" x 1/4" on back of chest in the left scapular region 3 1/2 “ away from mid line. On internal examination, the Doctor found fracture of the 6th rib on the right side, both right and left pleura punctured, right and left lungs were lacerated and perforated; thoracic cavity contained about one litre of blood; the stomach contained undigested food; small intestine was empty while the large intestine was full. In the opinion of the Doctor, the death was caused by shock and haemmorahage resulting from the gunshot injury referred to above. 7. After completing the investigation, the Investigating Officer submitted charge sheet against all the four accused. 8. The case was committed to the Court of Sessions, where the accused persons were charged. They pleaded not guilty to the charge and alleged their false implication due to enmity. 9. The prosecution examined Vinod Kumar, brother of the deceased and two other witnesses, namely Suresh Chandraw Kewarwani and Ashok Kumar Pal as the eye-witnesses of the incident. The other formal witnesses were also examined. After the close of the prosecution evidence, the statements of the accused persons under Section 313 Cr.P.C. were recorded. However, the defence did not produce any evidence. 10. The learned trial Court after hearing the prosecution as well as the defence found the accused appellant Brahmanand Shukla guilty of the offence under Section 302 IPC and convicted and sentenced him accordingly. The co accused Gopal Shukla, Krishna Ram Shukla and Bharat Tewari were however acquitted. 11. We have heard the learned counsel for the appellant, learned counsel for the informant as well as the learned AGA in this appeal. It is an admitted fact that now the only document available with the Court is the judgment of the trial Court. No other paper or document is available for the disposal of the appeal. It is thus apparent that the material available on record is certainly not at all sufficient to dispose of the appeal on merits. 12. It is an admitted fact that now the only document available with the Court is the judgment of the trial Court. No other paper or document is available for the disposal of the appeal. It is thus apparent that the material available on record is certainly not at all sufficient to dispose of the appeal on merits. 12. In Sita Ram v. State, 1981 Cr LJ 65, also the original record was not available to the appellate Court as the same was destroyed as a result of an accidental fire that broke out in the Court below. In these circumstances, the Division Bench of this Court observed as under : “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 record of the case is one of the essential element of the 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. We are further of the opinion that 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 re-trial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of FIR, statement of the witnesses under Section 161 Cr.P.C., report 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 re-trial of the case, more so when even copies of FIR and statements of witnesses under Section 161 Cr.P.C. and other relevant papers have been weeded out or are otherwise not available. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct re-trial of the case, more so when even copies of FIR and statements of witnesses under Section 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 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.” 13. After making the aforementioned observations and in view of the fact that the Court was not in a position to have the record of the case reconstructed, the Bench directed acquittal of the accused in that case. The above Sita Ram’s case (supra) was again considered in Ram Nath v. State, 1981 Allahabad Criminal Rulings 431 by another Bench of the Allahabad High Court and the following observations were made : “The principle laid down in Sita Ram’s case fully applies to the facts of the present case. As all attempts to have the record reconstructed failed, this Court is not in a position to affirm the conviction recorded by the trial Court. So far as the question of ordering a re-trial is concerned, we find that in the instant case the incident in connection with which the accused were prosecuted, took place as far back as 13th of September, 1970, that is, more than eleven years earlier. In such circumstances it will not be desirable to direct a re-trial. In this view of the matter we have no option but to allow Criminal Appeal No. 857 of 1976 and to set aside the conviction and sentence of Ram Nath to acquit him of the offence with which he has been charged.” 14. Under sub-section (2) of Section 385 Cr.P.C. it is obligatory on the part of the appellate Court to peruse the record before deciding the appeal against an order of conviction. Under sub-section (2) of Section 385 Cr.P.C. it is obligatory on the part of the appellate Court to peruse the record before deciding the appeal against an order of conviction. The conviction of an accused cannot be confirmed unless the appellate Court peruses the entire record. From the judgments in Sita Ram’s case and Ram Nath’s case (supra), it is clear that where the record has been lost or destroyed and it is not possible to reconstruct the same, it will not be just and proper to direct the retrial of the case if a long gap of time has taken place since the commission of the crime. 15. In the present case, as we have mentioned in the earlier part of the judgment only a copy of the trial Court’s judgment is available and no other documents like FIR, post mortem report, copies of the documents which had been filed by the prosecution and were exhibited during trial, the statement of the witnesses recorded under Section 161 Cr.P.C. are available despite various attempts to reconstruct the record. The incident is of the year 1979 i.e. the incident took place about 30 years back. In these circumstances, no fruitful purpose would be served by ordering re-trial as the same cannot be conducted at all in absence of these documents. In the light of the above discussions and the circumstances mentioned above,we have no other alternative but to allow the appeal, set aside the conviction and sentence of the appellant and to acquit him. The appeal is allowed and the conviction and sentence of the appellant as recorded by the trial Court is set aside and the appellant is acquitted of the charge levelled against him. His sureties and personal bonds are discharged. Let a copy of this judgment be certified to the trial Court for its intimation. ————