JUDGMENT Hon’ble S.C. Agarwal, J.—This Criminal Appeal is directed against the judgment and order dated 19.4.1982 passed by IV Additional Sessions Judge, Ballia in Sessions Trial No. 85 of 1981 whereby the appellants (1) Srikishun (2) Ram Awadh (3) Uma (4) Nagina (5) Gorakh and (6) Shekhan were convicted under Section 395 I.P.C. and each of them were sentenced to undergo R.I. for five years. During Appeal, appellant No. 5 Gorakh and appellant No. 6 Shekhan died and Appeal in respect of them stands abated. 2. The incident took place on 9.10.1980 at about 11:00 p.m. in Village Malipur, P.S. Ubhaon, District Ballia. The F.I.R. was lodged on 10.10.1980 at 4:00 a.m. 3. The prosecution story, briefly stated, was that there was a litigation between appellant Gorakh and P.W. Raj Kishore in which Faujdar (deceased) had appeared as a witness for Raj Kishore and the Suit was decreed in favour of Raj Kishore. Since then, Gorakh was annoyed with Raj Kishore and Faujdar and threatened them several times. Other appellants are the close relatives and family members of Gorakh. Faujdar was sleeping inside his house. His son Ramakant, daughters Kamlawati and Indrawati were sleeping in the adjoining room where a lantern was lit. His wife Smt. Shitladei was sleeping in the north west room and his relation was sleeping in the Sahan. At about 11:00 p.m., 14 - 15 dacoits armed with gun, spear, gandasa, lathi and country made pistol entered the house of Faujdar Yadav by removing the main door. Ram Bishun lifted the baby of Kamlawati and threatened the inmates present there to disclose where they had kept Rs.1800/- being the sale proceeds of bullock, failing which he would kill the baby by throwing on the ground. In the meantime, accused Uma disclosed that money had been found. Ram Bishun put the baby on the ground. Dacoits beat the ladies by danda, fists and kicks and came out of the house alongwith two boxes, which were opened. The dacoits made good their escape alongwith the booty i.e. Rs.1800/-, ornaments, clothes, etc.. Ramakant lighted his torch and saw accused Gorakh, Ram Awadh and Sri Kishun standing at the main door of his house. He also saw that one of the unknown dacoits shot Faujdar by gun. Faujdar fell down and died. The whole episode lasted for about one hour. Ramakant lighted his torch and saw accused Gorakh, Ram Awadh and Sri Kishun standing at the main door of his house. He also saw that one of the unknown dacoits shot Faujdar by gun. Faujdar fell down and died. The whole episode lasted for about one hour. Ramakant wrote F.I.R., which is exhibit ka-6 and lodged F.I.R. at the police station at 4:00 a.m. The injured were sent for medical examination. Station Officer S.P. Rawat performed inquest on the body of deceased Faujdar, prepared site plan, interrogated the witnesses and his successor S.I. Gajendra Nath Singh submitted charge-sheet against the accused. 4. The six appellants and one Ram Bishun were tried by the Sessions Judge. Charge under Sections 395/397, 302/149 I.P.C. was framed against the accused. The accused pleaded not guilty and claimed to be tried. 5. As many as eight witnesses were examined by the prosecution to prove its case. P.W. 1 Raj Kishore, P.W. 3 Ramakant Yadav, P.W. 4 Thug and P.W. 6 Kamlawati are the witnesses of fact. Dr. S.N. Pandey, P.W. 2 had examined the injured and prepared injury reports. Dr. V.K. Verma, P.W. 7 conducted autopsy on the body of deceased Faujdar. Constable Janardan, P.W. 5 had taken the dead body to mortuary for post-mortem examination and P.W. 8 S.P. Rawat is the investigating officer of the case. 6. In the statements recorded under Section 313, Cr.P.C., the appellants denied the prosecution allegations and stated that they had been falsely implicated in the case on account of enmity. No oral evidence was adduced on behalf of the defence. 7. Learned Sessions Judge acquitted accused Ram Bishun of all the charges giving him the benefit of doubt. The six appellants named above were convicted and sentenced under Section 395 I.P.C., as above. Charge under Sections 302/149 I.P.C. was held to be not proved. Hence, this Appeal. 8. Heard Sri S.K. Yadav, learned counsel for the appellants, learned A.G.A. for the State and have gone through the impugned judgment. Learned counsel for the appellants submitted that trial Court’s record has been weeded out and is not available. Charge under Sections 302/149 I.P.C. was held to be not proved. Hence, this Appeal. 8. Heard Sri S.K. Yadav, learned counsel for the appellants, learned A.G.A. for the State and have gone through the impugned judgment. Learned counsel for the appellants submitted that trial Court’s record has been weeded out and is not available. In the absence of trial Court record, it would not be possible for this Court to affirm the order of conviction and no useful purpose would be served by directing a retrial as the incident took place 30 years ago and basic papers are not available and defence would be severely prejudiced and the only course open to the Court is to set aside the judgment of conviction and to acquit the appellants. 9. Learned A.G.A. submitted that no documents relating to this case are available with the prosecution and the Court may adopt the course as directed by the Apex Court in the case of State of U.P. v. Abhai Raj Singh and another, 2004 SCC (Cri) 901. 10. The Appeal was admitted on 29.4.1982. The record of the trial Court has not been received. In the year 2003, a letter was sent to the District Judge, Ballia for summoning the record. The Officer Incharge, Civil Court, Ballia through his letter dated 21.1.2004 informed the Court that the records of the sessions trial have been weeded out on 3.6.1992 except the original judgment. By order dated 26.10.2004, the District Judge, Ballia was directed to reconstruct the record of the case within four weeks. Counsel for the appellant was also directed to supply the copy of the statements and other documents related to the case. By order dated 6.1.2005, it was indicated that in view of the provisions, as contained in Chapter 12, Rule 118 of the General Rules (Criminal), the record of the pending Appeal against conviction could not be weeded out and the District Judge, Ballia was directed to hold an inquiry and to fix the responsibility of the official concerned for not adhering to the Rules and also to inform the Court as to what action has been taken against the official concerned. Steps for reconstruction of file were directed to be taken forthwith. Steps for reconstruction of file were directed to be taken forthwith. The District Judge, Ballia ordered inquiry being final inquiry No. 1 of 2005 against Sri Badre Alam, retired Records Keeper (Criminal) and entrusted the inquiry to Sri D.R. Sonker, Special Judge, N.D.P.S. Act, Ballia. The inquiry officer vide his report dated 23.2.2005 submitted a report that Sri Badre Alam retired more than four years ago and, therefore, no departmental action can be taken against him. The inquiry report dated 23.2.2005 was forwarded by the District Judge, Ballia to this Court in original. The reconstruction of the record was also entrusted by the District Judge to Sri D.R. Sonker, Special Judge, N.D.P.S. Act, Ballia, whose report is also on record. Notices were issued to District Magistrate, Superintendent of Police and all the accused persons to furnish copies and documents and statements of witnesses available with them. The District Magistrate and Superintend of Police, Ballia informed the Officer that no documents were available with their office. Accused persons also informed the Officer through an application that they had no documents in their possession. Sri Sonker reported that in these circumstances, reconstruction of the record was not possible. 11. In the case of State of U.P. v. Abhai Raj Singh and another, 2004 SCC (Cri) 901, the Apex Court held as under. “We, therefore, set aside the order of the High Court and remit the matter back for fresh consideration. It is to be noted at this juncture that one of the respondents i.e. Om Pal has died during the pendency of the appeal before this Court. The High Court shall direct reconstruction of the records within a period of six months from the date of receipt of our judgment from all available or possible sources with the assistance of the prosecuting agency as well as the defending parties and their respective counsel. 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 reconstructions 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 it finds that reconstructions 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. 12. In the instant case, the complete file except the judgment has been wrongly weeded out by the Records Keeper of the District Court, who has retired long ago. No departmental action could be taken against him, as more than four years have elapsed since his retirement. Reconstruction of the trial Court record was ordered by this Court, but the Additional District Judge, who was entrusted the work of reconstruction by the District Judge, has reported that despite notices to D.M., S.P. and accused persons, reconstruction of the file could not be made, as none of the parties had any document relating to the case or copies of the statements of witnesses with them. It has been reported by the Officer concerned that reconstruction of the record is not possible. 13. Now I have to see whether a retrial can be held. Learned counsel for the appellants submitted that the incident took place in the year 1980, about 30 years ago. No documents i.e. F.I.R., charge-sheet, site plan, various memos prepared by the investigating officer are available. The basic papers are missing and are not available at all. It is not known whether after 30 years the witnesses are available or not. It was submitted that even if the witnesses are available, copies of their statements recorded by the investigating officer under Section 161 Cr.P.C. are not available and, therefore, the accused persons would be highly prejudiced if the trial is held without basis papers and case diary. Learned A.G.A. also submitted that without papers relating to trial and the case diary, retrial may not be possible. 14. Learned A.G.A. also submitted that without papers relating to trial and the case diary, retrial may not be possible. 14. I agree with the submissions made by learned counsel for the appellants and learned A.G.A. and I am satisfied that in the absence of basic papers and the case diary, retrial is not possible at all and would be highly prejudicial to the defence. I am also satisfied with the report of Sri D.R. Sonker, Special Judge, N.D.P.S. Act, Ballia that reconstruction of the records is not possible. Hearing of the Appeal in the manner envisaged under Section 386 of the Code of Criminal Procedure is not possible in the absence of lower Court record. 15. In this view of the matter, where the reconstruction of the record is not possible and retrial of the case after remand is not feasible, I have no option, but to allow the Appeal and set aside the conviction and sentence of the appellants. Even from the impugned judgment, it transpires that the appellants had their faces covered with a cloth or gamchha, even then learned Sessions Judge found that the witnesses could identify them from other parts of the face, which were not covered. I do not agree. If the accused were known to the witnesses and had covered their faces with a cloth, it was hardly possible for the witnesses to identify them and the possibility that the appellants were named in the F.I.R. on account of enmity cannot be ruled out. In the result, the Appeal is allowed. Conviction of the appellants Srikishun, Ram Awadh, Uma and Nagina are set aside and they are acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for necessary compliance. ————