Judgment : Hon'ble Mrs. Ranjana Pandya,J. 1. Challenge in this appeal is to the judgment and order dated 16.1.1985 passed by Special Judge (Anti Dacoity), Etawah in Special Case No. 75 of 1984 (State Vs. Jagat Singh and Another), under Section 392 I.P.C., Police Station-Bela, District-Etawah by which accused-appellants Jagat Singh and Salamat Ullah were found guilty under Section 392 I.P.C. and each were sentenced to two years rigorous imprisonment. 2. The brief facts of the case are that on 2.3.1981 complainant Kanhaiya Lal was coming back from market of village Yaqubpur after selling seeds and after purchasing some clothes. At about 6:00 p.m., when he reached near village Ghajapur, accused-appellants committed robbery. A ladies Dhoti, one pant, one cloth piece of shirt worth Rs. 100/-, one wrist watch worth Rs. 200/- and cash Rs. 205/- were looted from the complainant. Complaint raised alarm. On hearing hue and cry, the witnesses namely Chhote Lal, Man Singh and Daya Ram came to the spot, at which the accused-appellants fled away. Hence, the report was lodged. 3. Investigation of the matter was entrusted to the S.I. Amar Nath Shukla. The investigation ended into charge-sheet. 4. After recording the evidence of the prosecution witness, the learned lower court passed the impugned judgment as specified in para 1 of the judgment. 5. I have heard the learned counsel for the parties, perused the lower court judgment. 6. The accused-appellant No. 1 Jagat Singh died during the pendency of this appeal, hence the appeal continued only as regard accused-appellant No. 2 Salamatullah @ Mithauri. 7. The trial record was summoned. Report of the District Judge, Etawah, revealed that the complete original record was weeded. As per the report of Additional District and Sessions Judge/Special Judge (D.A.A. Act), Etawah dated 3.2.2016, record of the original trial court could not be re-constructed, although notices were issued to the D.G.C. (Criminal), S.O. Bela, (District-Auraiya) and the complainant to supply copies of the record, if available but no copies were supplied, since it was a very old matter, and no record was available. The responsibility whether the record was weeded as per rules or not was being inquired into by the Inquiry Officer, deputed by the District Judge. 8. Be that as it may, it was finally decided that the record could not be reconstructed and there was nothing except the original judgment before this Court. The responsibility whether the record was weeded as per rules or not was being inquired into by the Inquiry Officer, deputed by the District Judge. 8. Be that as it may, it was finally decided that the record could not be reconstructed and there was nothing except the original judgment before this Court. The question would now arise as to what happens when reconstruction is not possible. Section 386 empowers the appellate court to order that the accused be committed for re-trial and this power is not circumscribed to cases exclusively triable by the court of Sessions as has been held in AIR 1962 SC Page 1154 (State of U.P. Vs. Shankar and Another). 9. 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 Vs. Khirnat Singh (1889 AWN 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 Sevugaperuma and Others (AIR 1943 (Madras) 391). The view has been reiterated by several High Courts as well. 10. Perusal of the judgment shows that the occurrence took place on 2.3.1981. The plea of the juvenility on behalf of the surviving sole appellant Salamat Ullah does not appear to have taken the fact remains that he was atleast 18 years of age at the time of incident. Presently the applicant is about 73 years old. Directing re-trial of the matter at this juncture would not be proper. 11. Besides, when the copies of the F.I.R. and statements of the witnesses recorded under Section 161 Cr.P.C. before trial judge are not available, contradictions cannot be pointed out. Apart from this a heavy strain would be put on the memory of the witnesses if at all they are alive, besides the accused will definitely be prejudiced who would be handicapped in establishing his defence and the re-trial would be reduced to mere formality entailing agony and hardship to the accused and the informant and witnesses too. 12. Apart from this a heavy strain would be put on the memory of the witnesses if at all they are alive, besides the accused will definitely be prejudiced who would be handicapped in establishing his defence and the re-trial would be reduced to mere formality entailing agony and hardship to the accused and the informant and witnesses too. 12. In the present matter all the possibilities have been exploited and even an inquiry has been initiated to find out whether the record was weeded as per rules or no, thus, nothing more can be done, especially after 35 years of the occurrence. I am aware that if no action is taken in such matter it would encourage dubious persons and detractors of Justice by allowing undeserved premium to violators of law by acting hand in gloves with, those antisocial elements coming to hold sway, behind the screen, in the ordinary and normal course of justice. 13. But in the present case, nothing can be done in the matter and the matter shall needs closure, and the appeal deserves to allowed. Hence the impugned judgment of conviction and sentence dated 16.1.1985 passed by Special Judge (Anti Dacoity), Etawah in Special Case No. 75 of 1984 (State Vs. Jagat Singh and Another), under Section 392 I.P.C., Police Station-Bela, District-Etawah, is hereby set aside. 14. Accordingly, appeal is allowed. 15. Let a copy of this order be sent to the trial court concerned. ———————