Missing trial record and no practicable retrial can bar merits review of a conviction on appeal.

An appeal against conviction cannot be meaningfully decided on merits where the lower court record is missing and cannot be reconstructed. The appellate scheme under Sections 384, 385 and 386 of the Code of Criminal Procedure requires the court to call for and examine the record before determining the appeal, unless it is summarily dismissed. If reconstruction fails, the court must consider whether retrial is practicable and in the interests of justice; if retrial is also not feasible, affirming the conviction is impermissible because the accused is denied a meaningful appellate hearing. In that situation, the conviction and sentence are liable to be set aside.

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Issues: Whether an appeal against conviction can be decided on merits when the lower court record is missing, reconstruction of the record has failed, and retrial is also not practicable.

Analysis: The appellate scheme under Sections 384, 385 and 386 of the Code of Criminal Procedure, 1973 requires the appellate court to consider the appeal on merits after calling for and perusing the record, unless it is dismissed summarily. Where the record is lost and cannot be reconstructed, the appeal cannot properly be examined on the basis of the trial record. The authorities relied upon recognised that, in such a situation, the court must first consider whether reconstruction is possible and, if not, whether retrial would serve the interests of justice. If neither reconstruction nor retrial is feasible, affirmation of the conviction is impermissible because the accused is deprived of a meaningful appellate hearing on the material that formed the basis of conviction.

Conclusion: The appeal could not be sustained on merits in the absence of the essential record, and the conviction and sentence were liable to be set aside in favour of the appellants.

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