The unavailability of the lower court record and the impossibility of reconstruction rendered retrial or affirming the conviction legally impermissible.

JUDGMENT :

1. This appeal has been preferred against the judgment and order dated 11.05.1982 passed by the Special Sessions Judge (Dacoity Affected Area), Farrukhabad in Special Session Trial No. 09 of 1982, under Sections 399, 402 IPC and 25/27 Arms Act (State vs. Harish Chandra and three others) whereby accused appellant Harish Chandra and Ramshanker along with accused Bachchan were convicted under Sections 399, 402 IPC and Section 25/27 Arms Act and they were sentenced as under:

Accused-appellant Harish Chandra Section 399 IPC four years rigorous imprisonment.

Section 402 IPC three years rigorous imprisonment.

Section 25 Arms Act two years rigorous imprisonment.

Section 27 Arms Act three years rigorous imprisonment.

Accused-appellant Ramshanker Section 399 IPC four years rigorous imprisonment.

Section 402 IPC three years rigorous imprisonment.

Section 25 Arms Act two years rigorous imprisonment.

Section 27 Arms Act three years rigorous imprisonment.

All the sentences were directed to run concurrently.

2. Appeal of co-accused Bachchan (Criminal Appeal No. 1272 of 1982) has already been abated.

3. At the outset, it may be mentioned that this appeal was admitted in the month of May 1982 and record of trial Court was summoned by this Court vide order dated 10.05.2016 but only the impugned judgment has been sent and it was informed by report dated 09.09.2016 of trial Court that except judgment, no other record is available and efforts are being made to reconstruct the record. As per letter dated 14.09.2016, again it was informed that some time may be granted for reconstruction of record. District Judge, Farrukhabad vide letter dated 07.07.2016 has informed that except impugned judgment, other documents of record, were weeded out and that efforts are being made for reconstruction of record.

District Judge Farrukhabad vide letter dated 10.11.2016 has informed that there is no possibility of reconstruction of record of trial Court. District Judge, Farrukhabad vide letter dated 07.04.2017 has informed that despite serious efforts reconstruction of record could not take place and that reconstruction of record is not possible. In view of various letters sent along with reports of Court concerned and District Judge, Farrukhabad, it appears that efforts were made for reconstruction of record but it could not be possible. As this appeal was pending since 1982 and thus, it was felt that appeal be decided finally.

4. In Shyam Deo Pandey Vs. State of Bihar, 1971 (1) SCC 855 the Apex Court said that fulfillment of requirement for availability of record is necessary to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against nor only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. Relevant part of the judgment is extracted as under :

"18. Coming to Section 425, which has already been quoted above, it deals with powers of the Appellate Court in disposing of the appeal on merits. It is obligatory for the Appellate Court to send for the record of the case, if it is not already before the Court. This requirement is necessary to be complied with to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against not only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. The correctness or otherwise of the findings recorded in the judgment on the basis of the attack made against the same, cannot be adjudicated upon without reference to the evidence, oral and documentary and other materials relevant for the purpose. The reference to "such record" in "after perusing such record" is to the record of the case sent for by the Appellate Court."

5. In Sita Ram and Others Vs. State 1981 Cri.L.J. 65 the Court said that in absence of the original record it is not possible to arrive at a decision that the impugned judgment