Ramesh Sinha,J. Heard Sri S. K. Mishra, learned counsel for appellant and Sri L. D. Rajbhar, learned A.G.A. appearing for the State. 2. The present Criminal Appeal has been preferred against the judgment order dated 16.10.1982 passed by VIIIth Additional Sessions Judge, Mainpuri in S.T. No.81 of 1979 convicting the appellant for a period of two years under section 148 I.P.C. and for a period of two years under section 429 I.P.C. and for a period of 4 years under sections 307/149 I.P.C. 3. As per office report dated 10.10.2012 in compliance of Court's order dated 10.9.2012 two letters/reports dated 10.5.2012 flagged as "D" and "E" sent by the District and Sessions Judge Mainpuri which is available on record. 4. It transpires from the order sheet of this case that the records of the court below have not been received by the Registry of this Court and it was reported that the records are missing. The matter was taken up in the year 2007 and after noticing the report this Court passed an order on 19.09.2007 calling upon the District Judge to take action against the concerned official entrusted with the responsibility of maintaining the records and further a report regarding reconstruction of the file be also submitted within one month. The District Judge, thereafter has sent a report in the year 2007 itself that an inquiry has been set up for the loss of record against the concerned Assistant Record Keeper and the reconstruction has also been ordered. On 10.9.2012 the matter again came up before this Court after 2007 and this court on the said date directed the learned District Judge, Mainpuri to submit its report with respect to reconstruction of record and further inform this Court about the status of inquiry of initiated against the concerned official by the next date. Learned District Judge was also directed to take notice of the Judgment of the Apex Court in the case of State of U.P. Vs. Abhay Raj Singh reported in 2004 (50) ACC Page 691 and to review the matter seriously or else this Court will have to take appropriate action in the matter and further directed that the matter be listed listed on 15.10.2012. Thereafter, in pursuance to order dated 10.9.2012 passed by this Court the matter is listed for orders. 5. Abhay Raj Singh reported in 2004 (50) ACC Page 691 and to review the matter seriously or else this Court will have to take appropriate action in the matter and further directed that the matter be listed listed on 15.10.2012. Thereafter, in pursuance to order dated 10.9.2012 passed by this Court the matter is listed for orders. 5. From perusal of the letter/report dated 05.10.2012 Flag "D" of the District Judge regarding reconstruction of the record of Session Trial No.81/1979 State Vs. Brij Mangal Singh and others under sections 148, 429 and 307/149 I.P.C. P.S. Bhongaon, District Mainpuri, it has been reported by the District Judge vide letter No.1531/XV that Sri Sunil Kumar, Additional District Judge, Court No.4, Mainpuri was entrusted with respect to reconstruction of the lost record of the lower court and submitted a report dated 25.9.2012, after a detailed inquiry, to District and Sessions Judge, Mainpuri who has further reported that as per the report of Sri Sunil Kumar it is amply clear that after a detailed proceedings encompassing every possible efforts, was carried out in order to reconstruct the file of S.T. No.81 of 1979. But inadvertently neither the original reconstruction report nor any photocopy of the reconstruction, is on the file of the inquiry. Though neither the original reconstruction report nor its copy is available on record, it transpires that despite all possible efforts, reconstruction of the file of S.T. No.81 of 1979 State Vs. Brij Mangal Singh & others, could not be found possible. Photostat copy of Report of Sri Sunil Kumar, A.D.J. Court NO.4, Mainpuri is annexed with the report of the District and Sessions Judge along-with the letter dated 5.10.2012, which is also available on record. 6. Brij Mangal Singh & others, could not be found possible. Photostat copy of Report of Sri Sunil Kumar, A.D.J. Court NO.4, Mainpuri is annexed with the report of the District and Sessions Judge along-with the letter dated 5.10.2012, which is also available on record. 6. So far as, the steps taken by the District and Sessions for initiating inquiry for the loss of record of S.T. No.89 of 1979 and the concerned official who was responsible for the loss of said record of lower court, it has been reported by the District and Sessions Mainpuri vide letter No.1532/XV dated 5.10.2012 which is marked as "Flag-E" available on record from which it transpires that the inquiry was initiated against the erring official and on 9.7.2009 inquiry was transferred to Sri A. K. Saxena, the then Special Judge (S.C./S.T. Act)/Additional District & Sessions Judge, Mainpuri where it was received on 15.10.2009, in which delinquent official Sri Rakesh Kumar Dixit was held guilty, a photocopy of the final inquiry report is annexed with the letter No.1532/XV dated 5.10.2012 of the District Judge. Thereafter, the final inquiry report was sent to the then District Judge Smt. Vijay Lakshmi, who on 20.1.2010 passed detailed order on the final inquiry report which is as under:- "Seen the report of Inquiry Officer. As Sri Rakesh Dixit the then A.R.K. has died on28.10.2009, the inquiry against him stands abated" With the aforesaid order of District Judge, Smt. Vijay Lakshmi, the inquiry aspect regarding the loss of record of Session Trial No.81 of 1979 State Vs. Brij Mangal Singh & others got concluded. The said report was submitted by the District Judge, Mainpuri vide letter No.1532/XV dated 5.10.2012. 7. Thus, issue regarding the person responsible for loss of record of S.T. No.81 of 1979 is set at rest in view of the report of District and Sessions Judge Mainpuri vide letter dated letter No.1532/XV dated 5.10.2012. 8. So far as, the matter of reconstruction of record of S.T. No.81 of 1979 appears not possible in view of letter dated letter No.1531/XV dated 5.10.2012. 9. The Court further proceeds to examine the issue whether the retrial of the case is possible as has been contemplated in the judgment of the Apex Court in the case of State of U.P. Vs. Abhay Raj Singh (Supra). 10. 9. The Court further proceeds to examine the issue whether the retrial of the case is possible as has been contemplated in the judgment of the Apex Court in the case of State of U.P. Vs. Abhay Raj Singh (Supra). 10. From the record it is apparent that the incident has taken place on 18.10.1977 at about 11:30 A.M. in village Simari, Police Station Bhongaon District Mainpuri. The eight accused persons (namely Brij Mangal Singh, Rukum Pal Singh, Ramesh Singh, Prem Singh, Lallan Singh, Mohar Singh, Roshan Singh and Jagoo Singh) were tried in the present case for the offence under sections 147, 148, 149, 307, 429 and 302 I.P.C. 11. It transpires from the judgment that one person Kisnai who received one abraded contusion 2.5 c.m. X 2 c.m. on the left side of the head 1 c.m. above the eye brow as ante-mortem injury and left frontal wound of the skull was found fractured by inner examination and Dr. Suresh Kumar Gupta P.W.-4 has conducted the autopsy of Kisnai and found the said injuries and he was of the view that the deceased died due to coma on account of this ante-mortem injury and this injury could have come by fall. During the investigation the investigating officer was of the view that the death of the Kisnai was taken place due to heart attack and the same was also recorded in the panchyatnama Ex-Ka-6, the said fact has been written by the informant Sher Singh in compelling , circumstances at the instance of the Investigating Officer. The charges were framed against the accused persons for the offence under sections 148, 307, 429 I.P.C.. During the trial accused Rukum Pal Singh died on 17.9.1981 hence his appeal was ordered to be abated. The trial Court convicted six accused persons and acquitted accused Jagoo Singh for the offence in question. 12. It has been submitted by Sri S. K. Mishra learned counsel for appellant that Prem Singh S/o Kailash Singh, Lallan Singh S/o Ganga Singh have expired during the pendency of appeal, therefore, he is appearing on behalf of appellant No.1 Brij Mangal Singh and appellant No.2 Rukum Pal Singh and appellant No.5 Lallan Singh and appellant No.6 Mohar Singh. 13. Thus it is apparent that the record of the Lower Court except the judgment is not traceable as the same has been lost. 13. Thus it is apparent that the record of the Lower Court except the judgment is not traceable as the same has been lost. This Court vide order dated 10.9.2012 directed the Sessions Judge concerned to reconstruct the record in compliance of the said order the Sessions Judge reported that all attempts to reconstruct the record failed. However, inquiry was ordered to fix the responsibility of the person who was responsible for the loss of the record is dead and inquiry against him was ordered to be abated by the then District Judge, Mainpuri vide order dated 20.1.2010. Thus, it is clear that except the judgment other record of the Trial Court could not be reconstructed. 14. The fate of the appeal in absence of the record of the Trial Court was considered by this Court in two Division Bench cases of Sita Ram Vs. State, 1981 Cr.L.J. 65 and Ram Nath Vs. State, 1982 (!9) A.C.C. 128. In Sita Ram's case (supra) it was held as below:- "Where it is not possible to reconstruct the record which has been lost or destroyed it is 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 elements of the hearing of the appeal. 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 would be to direct retrial of the case since witnesses normally would be available and it would not cause undue stain on the memory of witness, were however, the matter comes up for consideration after a long gap of years as in the instant case, it would neither be just nor proper to direct re-trial of the case" 15. Relying on the above decision in the subsequent case of Ram Nath Vs. State (Supra) it was held below:- "As all attempts to have the record reconstructed have 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 for back as 13th of September, 1970, that is more than eleven years earlier. 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 for 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 and to acquit him of the offence with which he has been charged." 16. In the instance case occurrence took place as late as on 18.10.1977 i.e. before 37 years. The time lag between the date of incident and date on which the appeal came up for hearing is so long that it would cause undue strain on the memory of witnesses, if they are alive. It is not known whether the witnesses are still alive or not. Moreover, out of six appellants two appellants have already died. The rest of them are at the fag end of their lives. The matter came up for consideration after a long gap of 32 years and therefore, it would neither be just nor proper to direct re-trial of the case. 17. The Apex Court in the Case of State of U.P. Vs. Abhay Raj Singh (Supra) has held that, if only reconstruction is not possible to facilitate the Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by Sessions Court is also rendered not possible due to loss of vitally important basic records, in that case and situation only, the direction is given that the impugned judgment shall operate and the matter shall stand closed. Hence in the instant case neither there is possibility of reconstruction of record as is evident from the report of the District Judge, Mainpuri nor re-trial of the appellants is possible as the incident had taken place 37 years ago and there is hardly any possibility of the witness being alive or if alive it would cause undue strain on their memories to remember about the incident, under these circumstances the direction given in the impugned judgment and order passed by the trial Court shall operate against the appellants and the matter shall stand closed. 18. The appeal is accordingly disposed of. 18. The appeal is accordingly disposed of. _____________