IMPORTANT POINT
Where all efforts failed for the reconstruction of trial court's record and thus the appellate court was not in a position to affirm the conviction and long gap elapsed between date of incident and the date of hearing of appeal, the appellant should be acquitted and no re-trial should be ordered.

JUDGMENT

A.N. Dikshita, J. - This appeal arises out of the judgment and order dated 24.8.1977 passed by the 1st Additional District and Sessions Judge, Bareilly, in S.T. No. 181 of 1975 convicting the appellant under section 324 I.P.C. and sentencing him to a fine of Rs. 500/-and in default of payment of fine to undergo six months R.I.

2. Briefly stated, the appellant Khalil was charged under section 307 I.P.C. while another co-accused Sarwar Ali was charged under section 307 read with section 34 I.P.C. for inflicting knife injuries to one Israr Ali on the night between 10th/11th April 1974. The 1st Additional District and Sessions Judge vide the impugned order dated 24.8.1977 found the appellant not guilty under section 307 I.P.C. but convicted him under section 324 I.P.C. and sentenced him to the period already undergone and a fine of Rs. 500/-. Similarly, co-accused Sarwar Ali was found not guilty under section 307/34 I.P.C. but was convicted under section 352/34 I.P.C. and was sentenced to the period already undergone.

3. The instant appeal was admitted by this Court on 30.8.1977 and the realization of fine from the appellant was stayed. However, before the appeal could come up for hearing there was an incident of fire in the record room, Civil Courts, Bareilly. In reply to letter no. 802 dated 5.2.1982 summoning the record of the Sessions Trial Sri P. K. Dixit, Officer In-charge Record Room, Bareilly, vide .his letter dated 12.2.1982 informed this court that it was not possible to send the record of the case as it was not available and appeared to have been burnt in the fire. In view of the non-availability of the record efforts were made for reconstructing it. However, vide letter dated 25.1.1984 Sri V.N. Mehrotra, 1st Additional District and Sessions Judge, Bareilly, informed this Court that the record of S.T. No. 181 of 1975 which had been destroyed in the fire as reported earlier could not be reconstructed in spite of all the efforts Accordingly, on 15.5.1984 this Court ordered for the hearing of the appeal.

4. Apparently the material before me is not sufficient which may help me in the disposal of the appeal on merits. As contemplated by sub-section (2) of section 385 Cr. P.C. this Court had sent for the record of the case. Section 386 Cr. P.C. lays down the powers of the appellate court. Such power for deciding the appeal has to be exercised on a perusal of the record and hearing counsel for the parties. In view of the non-availability of the record in this case the requirement of section 386 Cr. P.C. cannot be met. In Queen Empress v. Khimat Singh1, this court observed:

"The appellant is entitled in law to have a hearing in this court of his appeal, but the loss of the record has deprived him of the only means of making good the pleas of the appeal”.

A mandatory duty is thus cast on the appellate Court to peruse the record before deciding the appeal and a decision upon a perusal only of the judgment appealed against is not legal. This view finds support from a Division Bench decision of the Calcutta High Court in Abbash Ali v. Emperor2. It would thus be not safe nor legally permissible to affirm the conviction of the appellant merely on the basis of the judgment of the trial court. The perusal of the record having the evidence of the parties and other material are essential elements for the hearing of the appeal. Such a situation arose in Sita Ram v. State3, and a division Bench of this Court observed that where it was not possible to reconstruct the record which had been either lost or destroyed it was not legally permissible for the appellate court to affirm the conviction of the appellant and that the perusal of the record of the case was one of the essential elements of the hearing of the appeal. The Division Bench further observed that if the time gap between the incident and the date on which the appeal came up for hearing was short then are-trial could be ordered as the witnesses could be available to depose