Vinod Prasad, J.;— This appeal by appellant prosecutor State emerges out of impugned judgment and order dated 12.9.1986 passed by 1st Additional Sessions Judge, Azamgarh in S.T. No. 47 of 1985 by which, learned trial Judge has acquitted all the three accused respondents Om Prakash, Jagdamba Singh and Sant Prasad of framed charges U/S 302/34, P.S. Ahiraula, District Azamgarh. Prosecution case, stated briefly, was that village Samshabad is at the bank river Manjhavi. Banshi and Ganga resident of village Samshabad were real sibling brothers. Shreechand, P.W.1 is the son of Banshi. Harish Chand P.W.3 is the son of Sri Krishna (deceased). Ganga had two sons Subhash and Prakash. Ratan Lal is the son of complainant Harish Chand (PW3). Harish Chand and his brother had installed a floor grinding machine and an oil Expeller in village Samshabad in a hutment under a thatched roof, which had openings towards east and south both. In the site place, where the grinding machine was installed has been shown as place 'H' whereas oil expeller was installed at place 'B'. Nearby towards east to the grinding machine and expeller of Harish Chand was the dilapidated house of Baijnath which was barricaded by four feet high wall on the western side adjacent to some open land. Nearby, lay a village pathway. There existed Nehru Smarak Junior High School, which was running since 7 or 8 years. Informant and his side on the one hand and accused on the other were contesting to claim management of the said institution and both the sides were booked u/s 107/116 Cr.P.C. by the police for indulging into breach of piece. This animosity was further aggravated by an incident dated 10.8.1984 at 4 p.m., when Ratan Lal, aforesaid was robbed of his Seiko wrist watch by accused Om Prakash when he was proceedings towards his house. Regarding the said robbery an F.I.R. was lodged at P.S. Phoolpur under section 392 IPC vide crime no.175 of 1984. For the aforesaid reasons on 20.8.1984 brother of the informant was grinding wheat at his machine. Chandrabali Yadav was also present at that machine, as he wanted to get his wheat grinded. Sri Krishna (deceased) was present at the oil Expeller alongwith Ram Daur, who desired to get expelling of his mustard oil seeds. Harish Chand P.W.3 was present near the floor grinding machine. Chandrabali Yadav was also present at that machine, as he wanted to get his wheat grinded. Sri Krishna (deceased) was present at the oil Expeller alongwith Ram Daur, who desired to get expelling of his mustard oil seeds. Harish Chand P.W.3 was present near the floor grinding machine. At that moment, exploding of a bomb sound in front of the eastern door of the machine and an alarm call of Sri Krishna echoed in the atmosphere which naturally attracted Harish Chand, Om Prakash and Chandra Bali. The aforesaid three persons therefore sprinted towards the oil Expeller and witnessed that Sri Krishna was escaping to save his life towards north who was being chased by accused Om Prakash, Sant Prasad and Jagdamba to be murdered. All of them were armed with country made pistols and pipe gun. Shree Chand P.W.1 meanwhile also arrived at the incident spot. All the witnesses forbade the accused to desist from indulging into the crime and moved to save Sri Krishna, but meanwhile Om Prakash fired at Sri Krishna. Luckily shot evaded him and Sri Krishna continued his life saving sprint and reached near bamboo clubs of Sita Ram Pal, where he, unfortunately, stumbled and fell down on the ground. At this juncture, Sant Ram shot at him from 2 or 3 feet but simultaneously his pipe gun broke down into two pieces. Sant Ram thereafter fled away from the spot throwing his pipe gun at the incident scene along with his other two murderer associates. Harish Chand, PW3 directed Om Prakash to carry injured Shri Krishna to the hospital and he himself returned to his house where he scribed FIR Ext. Ka-4. Carrying his written FIR PW3, measured the distance to P.S. Ahiraula, where he lodged his report about the incident as crime no. 88 of 1984, under section 307 I.P.C. at 10.15 A.M. vide Ext. Ka-2. Injured Shri Krishna was carried to PHC, Phoolpur on a roadster but en-route, he succumbed to his injuries at 9.45 A.M. Investigation into the crime was set afoot by preparing Chik report G.D. entry etc. Information regarding demise of the deceased was conveyed by PHC, Phoolpur to P.S. Ahiraula and on that basis, vide G.D. Entry 13, crime was converted into 302 I.P.C. at 12.30 P.M. S.I. Pashupati Nath Pandey commenced investigation into the crime and conducted usual investigatory steps of inquest and preparation of necessary documents. Information regarding demise of the deceased was conveyed by PHC, Phoolpur to P.S. Ahiraula and on that basis, vide G.D. Entry 13, crime was converted into 302 I.P.C. at 12.30 P.M. S.I. Pashupati Nath Pandey commenced investigation into the crime and conducted usual investigatory steps of inquest and preparation of necessary documents. Sealing the dead body he dispatched it for autopsy purposes to the mortuary through constables Kamal Chandra Mishra and Shiv Kumar Tiwari at 1 P.M. Thereafter I.O. prepared site plan, recorded 161 Cr.P.C. statements of witnesses and ultimately concluding investigation charge sheeted the accused respondents for the charge of murder. Dr. S.D.P. Gupta conducted autopsy on the cadaver of the deceased on 21.8.1984 at 2 P.M. vide Ext. Ka-15. Deceased was adjudged to be 30 years of age and a day had lapsed since he had demised. He had an average built body and rigor mortis was present on both of his limbs. His eyes and mouth were closed and abdomen was slightly distended. Greenish discoloration was present. Skin had peeled off at thigh and other places. Right forearm back, right thigh and leg and right hand were soiled with dried mud. On his cadaver, doctor had found following injuries:- (i) A lacerated punctured wound 3.2cm x 3cm x abdominal cavity deep on lower part right side back near midline going anterior forwarded through abdomen to abdominal wall. Blackening, tattooing and singing of hair were present around the wound. Blood had oozed out and wound margins were inverted. This was wound of entry (ii)Lacerated wound 2cm x 2cm x cavity deep on the lower part of abdomen (iii) Lacerated wound 1.5cm x.8cm x cavity deep on the lower part of abdomen (iv) Lacerated punctured wound of exit 1.5cm x 3cm x cavity deep on right side lower part of abdomen 4.5cm medially downward to anterior superior spine (v), (vi) & (vii) injuries were abrasions of varying sizes 2.5cm x 5.6cm on the outer side of right upper arm, 1.5cm x 2cm on the back of left elbow, 2.2cm x 1cm on front of right knee. Knee cartilage had ruptured, clotted blood was present in the stomach, small intestine was also ruptured at places. A big metallic pellet was recovered with one wadding pieces and plastic cork from the wound on the stomach. Recovered articles were dispatched to S.S.P. in a sealed cover. Knee cartilage had ruptured, clotted blood was present in the stomach, small intestine was also ruptured at places. A big metallic pellet was recovered with one wadding pieces and plastic cork from the wound on the stomach. Recovered articles were dispatched to S.S.P. in a sealed cover. As stated above investigation by the Investigating Officer Pashupati Nath Pandey P.W. 6 had culminated in submission of charges sheet against accused respondents and therefore court proceeding commenced against them by registration of a case before the committal court of Magistrate. Finding disclosed offences triable exclusively by Sessions Court the case of accused respondents was committed to the court of sessions for trial where it was registered as S.T. No. 47 of 1985, State Vs. Om Prakash and others. Ist Additional Sessions Judge, Azamgarh, who tried the accused respondents charged them with committing offence u/s 302 and 302/34 I.P.C. and since the accused abjured those charges therefore their trial commenced by prosecution tendering it's evidences to prove the charges. Prosecution in its efforts to establish the charges examined Shri Chand P.W. 1 and Harish Chand P.W. 3 as fact witnesses. Rest of the formal witnesses included constable Ram Barai Yadav P.W. 2, I.O. Pashupati Nath Pandey P.W. 4, S.I. Gulam Abbas P.W. 5 and Dr. S.D.P. Gupta P.W. 6. After looking into the evidences tendered before it and after going through the documentary evidences relied upon and exhibited during trial, learned trial Judge ultimately concluded that the prosecution had failed to establish the charge against the accused and, therefore, gave benefit of doubt to all the accused respondents and resultantly returned a verdict of not guilty by acquitting respondents accused vide his impugned judgment and order dated 12.9.1986, which judgment and order has now been assailed in the instant appeal by the appellant prosecutor State u/s 378 Cr.P.C., after obtaining leave of this court under sub section (3) thereof. Leave as prayed for u/s 378(3) of the Code was granted on 12.11.90 and the same day appeal was admitted and bailable warrants were issued to the accused respondents. Office note existing on the order sheet of this appeal dated 16.3.2010 endorses the fact that all the accused respondents had got themselves bailed out from the lower court. Leave as prayed for u/s 378(3) of the Code was granted on 12.11.90 and the same day appeal was admitted and bailable warrants were issued to the accused respondents. Office note existing on the order sheet of this appeal dated 16.3.2010 endorses the fact that all the accused respondents had got themselves bailed out from the lower court. However lower court record was not requisitioned for final outcome of the appeal and it was only vide order dated 18.8.2010 that it was directed to be summoned. Subsequent office noting dated 26.10.10 although records that lower court record was received in this court but later on it was clarified by court's order dated 15.2.2011 that complete record has not been received in this court. We ourselves have scanned the record and have detected that no original documents, no recorded testimonies of any witness including defence witness, no statement u/s 313 of the Code, chik FIR, various GDs including GD of crime registration, site plan etc. none of them were sent by the trial court. What is available on record is the case diary, order framing charges, calendar of sessions court, and copy of impugned judgment. Besides these documents, there is no other document available on record. This fact is also perceptible from the order sheet dated 3.2.2012. Reverting back to the chronology of sequence of procedure under taken in this appeal, this court directed Sessions Judge to send complete record to this court on 15.2.2011. Ultimately when complete record was not made available then this court directed District Judge vide it's order dated 21.3.2012 to submit a report as to whether the file can be reconstructed or not. Communication flag ''X' on the appeal record sent by Sessions Judge dated 3.4.2012 intimated that according to officer-in-charge record room district judgeship Azamgarh, entire record of concerned Sessions Trial No. 47 of 1985, State versus Kailash has already been weeded out.. However the District Judge slated a silver lining by intimating in his report that if papers are made available from the concerned police station, reconstruction of the record can be made possible but it will take time. District Judge had also directed Officer-in-charge record room to make sincere efforts to get the record reconstructed. This court pursued the matter and ultimately District Judge Azamgarh vide his FAX report date 8.7.2013 informed the court that reconstruction of the record is not possible. District Judge had also directed Officer-in-charge record room to make sincere efforts to get the record reconstructed. This court pursued the matter and ultimately District Judge Azamgarh vide his FAX report date 8.7.2013 informed the court that reconstruction of the record is not possible. The said report dated 8.7.2013 reads thus:- "The requisition letter of the Hon'ble Court was sent to the Record Room of this Judgeship. The Officer-in-charge Record-Room through his report dated 29.05.2013 reported that due to non-availability of any paper/document reconstruction of record was not possible. I was not satisfied with the report of the Officer-in-charge Record-room and hence vide my order dated 30.05.2013 directed him to make effective efforts once again for reconstruction of the record. The Officer-in-charge Record-room has submitted a fresh report dated 08.07.2013 which is being enclosed herewith for kinder perusal of the Hon'ble Court. During course of efforts of reconstruction, notice was sent to the complainant of the aforesaid case, namely, Harish chandra, who appeared before the officer-in-charge record-room and stated on oath that Sri Ramakant Mishra Advocate was conducting the aforesaid Sessions Trial along with Government counsel and Sri Mishra used to keep the entire papers relating to the case and he (complainant) did not have any paper with him and presently also he does not have any paper relating to the said case. Notice was also issued to Sri Pabaroo Ram, the present District Government Counsel whose statement was recorded by the Officer-in-charge Record-room. He stated on oath that despite thorough search no paper relating to the aforesaid case could be traced out. He further stated that the then District Government counsel Sri Vishwambhar Nath Misra and the private counsel Sri Ramakant Mishra were conducting this case. Sri Ramakant Mishra Advocate is now no more in the world. Sri Ramakant Mishra Advocate had died six/seven years ago. Notice was sent to Sri Baldhari Yadav, who was Moharrir of Sri Ramakant Mishra advocate. He has also stated on oath that he tried his best level to search the papers/documents relating to the said Sessions Trial. He further stated that after the death of Sri Ramakant Mishra Advocate, the papers relating to the said Sessions Trial were sold treating them as waste papers and now no papers are available. He has also stated on oath that he tried his best level to search the papers/documents relating to the said Sessions Trial. He further stated that after the death of Sri Ramakant Mishra Advocate, the papers relating to the said Sessions Trial were sold treating them as waste papers and now no papers are available. During the process of reconstruction of record, notices were also sent to the accused persons of the said Sessions Trial, namely, Omprakash, Sant Prasad and Jagdamba Singh. In response to the notice, report was received from police station Ahiraula, District Azmagarh alongwith the report of Village Pradhan to the effect that accused Sant Prasad died five years ago and accused Omprakash was done to death in the year 2006. The third accused Jagdamba Singh appeared on 06.06.2013 and stated that he had no paper relating to the said sessions trial. He, however, disclosed the name of Sri Lallan Singh Advocate, who was the counsel on behalf of accused persons in the aforesaid sessions trial. Sri Lallan Singh Advocate was summoned by way of notice who appeared and stated that he was conducting this case. The accused persons in the aforesaid Sessions trial were acquitted and hence realizing that the papers were now no longer required, he threw away the papers and at present he is not possessed of any paper relating to the said Sessions Trial. The Ex-District Government counsel Sri Vishwambhar Nath Mishra was also summoned to find out any clue relating to the papers/documents of the aforesaid Sessions Trial. Sri Mishra appeared and informed orally that all the papers had already been sent to the Government for filing Government appeal and now he has no paper with him. The Station Officer of police station Ahiraula has already informed that no paper/document relating to the aforesaid sessions trial was available at the police station. In this way, all possible endeavours have been made by summoning the complainant of the case, the Ex-Distrcit Government counsel, the present District Government counsel, the accused persons of the case, the counsel of the accused, but as stated above, no paper/document of Sessions Trial No.47 of 1985 State Vs. Omprakash & others under section 302 IPC could be traced out and reconstructed. Omprakash & others under section 302 IPC could be traced out and reconstructed. I am, therefore, bound to report that reconstruction of record is not possible from any corner." It is in the above to referred background that we have heard learned AGA for the appellant State and have perused the scarce papers of available record. Learned AGA in the above back ground was completely helpless in assisting us in disposal of this appeal. He expressed his inability to pursue his appeal in complete absence of all the relevant materials which are sine qua non for disposal of this appeal against acquittal. He, therefore, rested his submissions only to the bare minimum few words. The procedure for disposal of appeal are contained in Chapter XXIX of the Code which contains 22 sections from sections 372 to 394. Out of these sections only sections 385/386 Cr.P.C. are relevant for our purposes and therefore we eschew referring to other provisions. Section 385 (2) of the Code ordains that if an appeal is not dismissed summarily by the appellate court, then it shall "send for the record of the case, if such record is not already available in that court, and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the court may dispose of the appeal without sending for the record". This mandate of law enacted by the Parliament is a salutary provision of an un-eschewable nature except in case of an exception provide by the proviso clause. Section 386 of the Code further cements vetting of record when it provides that " After perusing such record and hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused if he appears, the appellant court may......." Thus there is little or no doubt that scanning of trial court record and vetting of the same is an un-avoidable step of mandatory character is disposal of an appeal. Appellate court is under mandate by the aforementioned enacted statute that it must peruse and examine the record while disposing of an appeal if the same has not been dismissed in-limini u/s 384 of the Code which provides for adoption of such a course by the appellate court if it so desires. Appellate court is under mandate by the aforementioned enacted statute that it must peruse and examine the record while disposing of an appeal if the same has not been dismissed in-limini u/s 384 of the Code which provides for adoption of such a course by the appellate court if it so desires. This trite law is now too well settled to be unsettled especially when it has the cantilever of many binding judicial precedents by the apex court, some of which are referred to herein below:- State of Karnataka v. Ningappa @ Bhyrappa @ Ningegowda and Anr.: AIR 2009 SC 1934 apex court has observed as under:- "5. The present respondents filed an appeal before the Karnataka High Court which was disposed of by the impugned judgment. We were shocked to find that the learned Single Judge by a cryptic and practically non- reasoned order has set aside the conviction of the respondents in respect of their conviction in terms of Section 304 Part-I and 304 Part-II respectively. There is practically no analysis of the evidence, more particularly of the eye-witness PWs. 1 to 3 and 9 and 10. They also claimed to have suffered injuries in the incident. 6. Additionally, dying declaration purported to have been made by the deceased has also not been discussed. 7. The Sessions Judge's order shows that he had analysed the evidence in great detail. The High Court did not make an effort to indicate as to how the conclusions were erroneous and/or contrary to evidence on record. The manner in which the appeal has been disposed of leaves much to be desired. Such casual disposal of appeal setting aside the conviction, is neither proper nor desirable." In State of M. P. v. Dhara Singh and Anr.: AIR 2009 SC 1978 it has been held by the apex court as under:- "........Additionally, it is seen that there is no discussion of the evidence of the eye witnesses........" In Mangat Ram v. State of Haryana: AIR 2009 SC (Suppl) 603 it has been held by the apex court as under:- "5. In our opinion, the learned counsel for the appellant is right in submitting that the High Court ought not to have disposed of the appeal without recording reasons. This Court has deprecated the practice of disposing of matters without recording reasons in support of such decision. In our opinion, the learned counsel for the appellant is right in submitting that the High Court ought not to have disposed of the appeal without recording reasons. This Court has deprecated the practice of disposing of matters without recording reasons in support of such decision. It has been insisted that when the matter is decided by a Court, reasons must be recorded in support of such decision. It is because the aggrieved party may make grievance in the superior Court that the reasons recorded by the trial Court were non-existent, extraneous, irrelevant, etc. The successful party, on the other hand, may support the reasons recorded by the Court in his favour. Finally, the superior Court may also consider whether reasons recorded by the Court in support of the order passed by it were in consonance with law and whether interference is called for. If the final order is without any reason, several questions may arise and it will be difficult for the parties to the proceedings as well as the superior Court to decide the matter one way or the other. This Court has, therefore, deprecated the practice of pronouncing final order without recording reasons in support of such order. 6. Before more than two decades, in State of Punjab v. Jagdev Singh Talwandi, (1984) 1 SCC 596 , the Court said : "We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment." 7. Discussing the position of this Court on passing final orders without recording reasons in support of such orders, this Court stated : "It may be thought that such orders are passed by this Court and therefore there is no reason why the High Courts should not do the same. We would like to point out respectfully that the orders passed by this Court are final and no appeal lies against them. The Supreme Court is the final Court in the hierarchy of our courts. Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances. Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned statutes. We thought it necessary to make these observations in order that a practice which is not very desirable and which achieves no useful purpose may not grow out of its present infancy". (Emphasis supplied) 8. The principle was reiterated by this Court in State of Punjab v. Surinder Kumar, (1992) 1 SCC 489 . Distinguishing the position of this Court and other Courts, the Court stated : "On the question of the requirement to assign reasons for an order, a distinction has to be kept in mind between a court whose judgment is not subject to further appeal and other courts. One of the main reasons for disclosing and discussing the grounds in support of a judgment is to enable a higher court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or judgment, but the requirement is not imperative in the case of this Court. One of the main reasons for disclosing and discussing the grounds in support of a judgment is to enable a higher court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or judgment, but the requirement is not imperative in the case of this Court. It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so". (Emphasis supplied) 9. In Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., (2004) 4 SCC 158 , the High Court, after hearing criminal appeal, directed its dismissal indicating that "reasons would follow". When the matter reached this Court, the Court disapproved the approach adopted by the High Court observing that it did not see "perceivable reason for the hurry". Referring to Jagdev Singh Talwandi and observing that sometimes even this Court makes such order, the Court stated : "It may be thought that such orders are passed by this Court and, therefore, there is no reason why the High Courts should not do the same. We would like to point out that the orders passed by this Court are final and no further appeal lies against them. The Supreme Court is the final Court in the hierarchy of our Courts. Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned statutes. We thought it necessary to make these observations so that a practice which is not a very desirable one and which achieves no useful purpose may not grow out of and beyond its present infancy." Thus recording of reasons after perusal of the record and discussion of evidences is a must for the appellate court while disposing off an appeal finally if the same has not been dismissed u/s 384 of the Code. The pivotal question which now arises for consideration is as what course has to be adopted in case record is not available or destroyed and could not be reconstructed? The pivotal question which now arises for consideration is as what course has to be adopted in case record is not available or destroyed and could not be reconstructed? This aspect again is no longer res integra and has been considered in the decision Brahmanand Shukla versus State of U.P. 2010 (69) ACC 749 it has been held as under:- "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. In Sita Ram Vs. State 1981, Cr.L.J., 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. 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. 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." 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 Vs. 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. 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." 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 re-trial of the case if a long gap of time has taken place since the commission of the crime. 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." Supreme Court also had the occasion to consider this aspect in State of U.P. versus Abhai Raj Singh : AIR 2004 SC 3235 wherein it has been held as under:- "6.The powers of the Appellate Court when dealing with an appeal from a conviction are delineated in sub-clauses (i), (ii) and (iii) of clause (b) of Section 386 of the Code. The Appellate Court is empowered by Section 386 to reverse the finding and sentence and acquit. The Appellate Court is empowered by Section 386 to reverse the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence. The Appellate Court is also empowered to discharge the accused. The third category which seems to be applicable to the present case is a direction for re-trial by a Court of competent jurisdiction subordinate to the Appellate Court or committed for trial. For exercise of the powers in cases of first two categories, obviously a finding on merits after consideration of the materials on record is imperative. Where that is not possible because of circumstances like the case at hand i.e. destruction of the records, the proper course for the Appellate Court would be to direct re-trial after reconstruction of the records if in spite of positive and constructive efforts to reconstruct the records the same was impossible. If on the other hand, from the copies available with the prosecuting agency or the defence and/or their respective counsel, reconstruction is possible to be made, said course should be adopted and the appeal can be disposed of as it deserved under course indicated in clauses (i) and (ii). After perusal of the records and hearing appellant's pleader and public prosecutor under Section 377 or 378, the exercise of power as indicated above can be resorted to. As was observed in Bani Singh and Ors. v. State of U. P. ( 1996(4) SCC 720 ) the plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it must call for the records and Section 386 mandates that after record is received, the Appellate Court may dispose of the appeal after hearing as indicated. 7.A question would further arise as to what happens when the reconstruction is not possible. Section 386 empowers the Appellate Court to order that the case be committed for trial and this power is not circumscribed to cases exclusively triable by the Court of Sessions. (See State of U.P. v. Shankar and Anr., AIR 1962 SC 1154 ). 8.It has been the consistent view taken by several High Courts that when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered. (See State of U.P. v. Shankar and Anr., AIR 1962 SC 1154 ). 8.It has been the consistent view taken by several High Courts that when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered. In Queen Empress v. Khimat Singh (1889 A. W. N. 55) the view taken was that the provisions of Section 423(1) of the Criminal Procedure Code, 1898 (in short 'the old Code') made it obligatory for the Court to obtain and examine the record at the time of hearing. When it was not possible to do so, the only available course was a direction for re-construction. The said view was reiterated more than six decades back in Re Sevugaperumal and Ors. (AIR 1943 Madras 391). The view has been reiterated by several High Courts as well, even thereafter. 9. The High Court did not keep the relevant aspects and considerations in view and came to the abrupt conclusion that re-construction was not possible merely because there was no response from the Sessions Judge. The order for re-construction was on 1-11-1993 and the judgment of the High Court is in Criminal Appeal 1970 of 1979 dated 25-2-1994. The order was followed in Criminal Appeal No. 1962 of 1979 disposed of on 16-8-1995. It is not clear as to why the High Court did not require the Sessions Court to furnish the information about re-construction of records ; and/or itself take initiative by issuing positive directions as to the manner, method and nature of attempts, efforts and exercise to be undertaken to effectively achieve the purpose in the best interests of justice and to avoid ultimately any miscarriage of justice resulting from any lapse, inaction or inappropriate or perfunctory action, in this regard; particularly when no action was taken by the High Court to pass necessary orders for about a decade when it received information about destruction of record. The course adopted by the high Court, if approved, would encourage dubious persons and detractors of justice by allowing undeserved premium to violators of law by acting hand in glove with, those antisocial elements coming to hold sway, behind the screen, in the ordinary and normal course of justice. 10. We, therefore, set aside the order of the High Court and remit the matter back for fresh consideration. 10. 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 re-construction 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 its own merits and in accordance with law. If it finds that re-construction is not practicable but by order 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 High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by 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. " (Emphasis Supplied) It will be apt and appropriate for us to refer the observations by the apex court in Bani Singh and others v. State of U.P.: AIR 1996 SC 2439 wherein apex court has held as under:- "14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo's case ( AIR 1971 SC 1606 ) appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of S.385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and S.386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Ss.385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. Therefore, the plain language of Ss.385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross checking the reasoning with the evidence on record with a view to satisfy itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav's case ( AIR 1987 SC 1500 ) that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution." Now applying above decision on the facts of present appeal what is discernible from the appeal record is that only the order framing charge, judgement of the trial court and one page calendar of the Sessions court and case diary are available on the record. Besides these documents there is no other document available for disposal of the appeal. Needless to say that available record is wholly insufficient to dispose of this appeal against acquittal on merits. Report from the District Judge referred to above makes it evident that reconstruction of the record is not possible. In such an eventuality there is no other course open for us but to apply apex court decision in Abhai Raj Singh (supra) and dismiss the appeal. It will be wholly injudicious and inappropriate for us to upturn an acquittal into conviction without proper appreciation of oral and documentary evidences more so when we are not oblivious of the fact that in an appeal against acquittal the impugned judgment should not be upturned unless it is proved that the same is wholly perverse and no prudent person will adopt the reasoning as that of the learned trial Judge. If on the given facts and circumstances of the case the view of the trial court is reasonable appellate court should be loath and slow in interfering with it. If on the given facts and circumstances of the case the view of the trial court is reasonable appellate court should be loath and slow in interfering with it. Incident in the present case had occurred in the year 1984 and twenty nine years have gone by. Presumption of innocence of the accused has further been strengthened by the impugned judgment and order of acquittal and this court can set aside the same only after meeting the reasons recorded by the trial court, which exercise is now futile and impossible. Even if we presume that the witnesses of the case are still alive the nature, quality and reliability of their depositions after passing of three decades shall by gravely suspicious. Inevitable natural phenomenon of fading of memories eradicating and obliterating impressions with overlapping and dissipating of facts as a natural consequence will gravely diminish the value of their testimonies. Recapitulation and reconstruction of events occurred three decades ago will be anointed with dearth of exactitude and an element of uncertainty bereft of trustworthiness. It shall be impossible to distinguish between truth and falsehood, between reality and imagination. The "vitally important basic records" necessary for a fair trial being non- existent, direction of retrial after such a long drawn out period of time will be a fruitless exercise. The treacherous sands of faltering memories can certainly not constitute a legitimate and sure basis to determine the fate of the respondent who have already a judicial verdict of not guilty in their favour. There is thus absence of compelling reasons to direct a retrial. In such a view the only pragmatic approach will be to approve acquittal of respondents accused, concur with impugned judgement and order and resultantly to dismiss this State appeal and we do hereby order the same. State appeal is dismissed. Let this order be communicated to the trial court for it to discharge the personal and surety bonds of the accused respondents. _____________