Hon’ble Mrs. Poonam Srivastav, J.—Record of criminal appeal has been received back after a direction from the Apex Court dated 7.2.2005. Record of trial Court in the instant appeal could not be traced out despite several order and best efforts of the Court. On perusal of various letters sent to District Judge, Ballia, it transpires that record of instant criminal appeal No. 2120 of 1981, Raj Narain Pandey v. State, arising from Session Trial No. 152 of 1980, under Section 307 I.P.C. P.S. Bansdih Road, District Ballia, decided by Sri Hem Raj Ram, Ist Additional Sessions Judge, Ballia, vide judgment and order dated 17.9.1981, could not be reconstructed.

2. Intimation was sent to Section Officer, criminal department by means of letter dated 20.12.2002 after obtaining due endorsement from Additional Sessions Judge, Ballia. There are various letters which clearly establish that record of Session Trial was weeded out, therefore, appeal was finally allowed by this Court vide judgment and order dated 16.1.2004.

3. The judgment was challenged by the State before the Apex Court whereby appeal filed by the State, was allowed. The judgment and order dated 16.1.2004 passed by this Court acquitting appellant was set aside. Matter was remanded to this Court to decide it on merits after giving adequate opportunities to the parties for reconstruction of record. As already stated above, various letters and efforts on the part of Additional Sessions Judge, Ballia, neither statement nor any other document could be procured as such record could not be reconstructed. The instant appeal has come up before this Court for hearing after remand from the Apex Court.

4. Heard Sri A.K. Shukla, counsel appearing for appellant, Sri Surendra Singh, Sri V.B. Tripathi, and Ms. Rashmi Jaiswal, A.G.A. appearing for the State.

5. Having no other option, I proceed to decide this appeal on the basis of judgment itself.

6. The counsel for appellant has placed reliance on a decision of the Apex Court in the case of Eliamma and another v. State of Karnataka, JT 2009 (2) SC 358, bringing to notice of the Court relevance and applicability of Section 360 Cr.P.C., which is quoted below :

“360. Order to release on probation of good conduct or after admonition.—(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offenders, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour :

Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Whether proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks fu