In the absence of the record, the High Court could not affirm the conviction of the appellants, and due to the lapse of time and non-availability of certain papers, it was neither just nor expedient to order retrial of the case.

( 1 ) ON 23-8-1971 at about noon time an incident took place in village Kanaili, Police Station sarai Aqil district Allahabad, in which Ganesh Din lost his life and Surya Bali Singh, Daya Ram singh and Gaya Prasad Singh received injuries. In Sessions Trial No. 91 of 1973 the appellants have been found guilty for committing the murder of Ganesh Din and causing injuries to Surya bali Singh and others. For the murder of Ganesh Din, Sita Ram has been sentenced to imprisonment for life under Section 302, I. P. C. The remaining four appellants, namely, Din bandhu, Lalji, Ram Naresh and Sarwan Kumar have been awarded the same sentence under section 302/149, I. P. C. The appellants have further been convicted and sentenced to various terms of imprisonments for other offences committed in the incident. The sentences have been directed to run concurrently.

( 2 ) AGAINST the order of the learned Additional District and Sessions Judge, Allahabad, dated 18-11-1974 the present appeal was filed in this Court on 21-11-1974. While admitting the appeal this Court enlarged the appellants on bail. During the pendency of the appeal in this Court the original record was destroyed as a result of an accidental fire that broke out in the court below.

( 3 ) WHEN the appeal was put up for hearing, an attempt was made to reconstruct the record. Ample opportunity was allowed to the State as well as to the appellants but the record could not be reconstructed. The question that has cropped up for consideration is whether the appeal can be decided on merit and if not what is the course to be adopted by this Court.

( 4 ) SECTION 385, Cr. P. C. provides that if the appellate court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant; (iv) if the appeal is under Section 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. Sub-section (2) provides that the appellate court shall then 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. Section 386 prescribes the powers of the appellate court. That power has to be exercised after perusing the record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears. In Queen-Empress v. Khimat Singh 1889 all WN 55 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 Division Bench of the Calcutta High Court in Abbash Ali v. Emperor (1913) 19 Ind Cas 182 : 14 Cri LJ 182 observed that the appellate court must peruse the record before deciding the appeal. A decision upon a perusal only of the judgment appealed against is not legal.

( 5 ) SINCE it is incumbent on the appellate court to send for the record and peruse it and hear the counsel for the parties before it can exercise its power under Section 386, the present appeal cannot possibly be heard and decided on merit.

( 6 ) THE appellants have a right to show to this Court that the decision arrived at by the court below was not supported by the evidence on record. They can legitimately contend that material evidence and circumstances have either been ignored or incorrectly appraised. This right cannot be denied to the appellants. In the absence of the original record it is not possible for us to arrive at a decision that the impugned judgment is supported by the evidence on record and t