IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No.74 of 2006 Girish Chandra Joshi … Revisionist Versus State of Uttaranchal and another … Opposite Parties Dated: November 7, 2008 Mr. B.S. Adhikari, Adv. for the revisionists Mr. M.A. Khan, learned brief holder for the State/Respondent No.1 Mr. C.S. Rawat, Adv. for respondent no.2 HON. DHARAM VEER, J. This criminal revision preferred under Section 397/401 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 12.04.2004 passed by Judicial Magistrate First Class, Didihat in Criminal Case No.434 of 2003, State & Jaswant Singh Janpangi. 2. Mr. B.S. Adhikari, Adv. for the revisionist, Mr. M.A. Khan, learned Brief Holder for the State/opposite party No.1 and Sri C.S. Rawat, Adv. for respondent no.2 are present. 3. Vide judgment and order dated 12.4.2004, the learned Judicial Magistrate, First Class, Didihat has acquitted the respondent No.2-Jaswant Singh Janpangi for the offences punishable under Sections 323, 504 of the Indian Penal Code, 1860 (hereinafter to be referred as IPC). Against the aforesaid judgment and order, the complainant/ revisionist preferred a revision before Sessions Judge, Pithoragarh. The said revision was also dismissed by the judgment and order dated 9.6.2005 passed by Sessions Judge, Pithoragarh. Now, the complainant/revisionist has come up in revision before this Court challenging the judgment and order dated 12.4.2004 passed by Judicial Magistrate, First Class, Didihat. 4. On 29.7.2008, this Court summoned the record of the case from the trial court. In compliance of the said order, Chief Judicial Magistrate, Pithoragarh vide his report dated 06.11.2008, on the basis of report dated 01.11.2008 of J.M., First Class, Didihat, informed this Court that the record of the case has been weeded out on 21.10.2005. Learned counsel for the revisionist Mr. B.S. Adhikari, Mr. M.A. Khan, learned Brief Holder for the State as well as Sri C.S. Rawat, learned counsel for respondent no.2, all have stated that the reconstruction of the record is not possible. They also submitted that now the retrial is also not possible. In a judgment rendered by Allahabad High Court in the case of Om Prakash Vs. State of U.P. reported in A.L.C. 1999 Vol.II Page 685, it has been held in para 4 and 5 that: - 4. The contention of the revisionist has substantial force. In the case of Ram Nath V. State, the view taken by the Division Bench of this Court was that when material on record was not sufficient to dispose of the appeal on merits and it was not possible to reconstruct the record, its benefit should go to the accused- appellant. What has been held with regard to appeal would equally apply to a revision against conviction upheld by the lower appellate Court insofar as non- availability of the record is concerned. 5. In the case at hand, the incident took place as back as on 27.6.1979 viz., more than twenty years back. Since the record of the lower court is not available and the reconstruction is also not possible, the revision deserves to be allowed on this score alone. 5. The Allahabad High Court again in the case of Akhilesh Chandra Vs. State of U.P. reported in [2007 (57) ACC 50] in para 3 and 7 has held that: - 3. At the time of hearing of the revision it was detected that the Trial Court record was not received in this Court even though the summoning of the Trial Court was ordered by this Court. It was informed that the same was weeded out. Consequently, reconstruction of the record was ordered by this Court. In pursuance of the said order, the reconstruction of the record was endeavoured and some papers were received from the office of C.M.O. vide his letter dated 9.4.1999 which included the notice u/s 13(2) of the Act, the copy of the sanction granted by the Chief Medical officer/ Local Health Authority dated 20.4.1983, the application of the Food Inspector for grant of sanction, the Public Analyst report dated 21.2.1983. Rest of the record of the case was not traced out and it was reported by the Chief Judicial Magistrate, Farrukhabad vide his letter dated 16.4.1999 that it is not possible to reconstruct the record. 7. In view of what has been said have above, there is no other option for this Court but to acquit the revisionist of the charges leveled against him. 6. In view of the above-said circumstance, the revision is dismissed. The judgment and order dated 12.04.2004 passed by Judicial Magistrate, First Class, Didihat as well as judgment and order dated 09.06.2005 passed by Sessions Judge, Pithoragarh are hereby confirmed. The respondent no.2-Jaswant Singh Janpangi is accordingly acquitted of the charge of the offences punishable u/s 323/504 of IPC as ordered by the courts below. (Dharam Veer, J.) November 7, 2008 Rajeev Dang