IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1484 of 2001 (Old No.2186 of 1995) Ramesh Berry … Appellant Versus The State & others … Respondents Dated: July 21, 2009 Sri Ajay Singh Bisht, amicus curiae for the appellan t Sri M.A. Khan, Brief Holder for the State/respondent no.1 Sri L.K. Tewari, Adv. for Respondent Nos.2 to 5 HON. DHARAM VEER, J. The present appeal has been preferred against the judgment and order dated 29.07.1995 passed by the Sessions Judge, Dehradun in Misc. Case No.1 of 1993, Ramesh Berry Vs. Ganpat Ram Chandana & three others, whereby the learned Sessions Judge has rejected the application for proceeding under Section 340 Cr.P.C moved by the appellant. 2. On 20.05.2004, this Court summoned the record from the lower court. In compliance of that order, Officer In-charge, Record Room (Civil), District Judge’s Court, Dehradun vide report dated 26.08.2006 has informed that the record of the case has been weeded out on 20.6.2002 as per rules. Sri Ajay Singh Bisht, amicus curiae for the appellant and Sri M.A. Khan, learned Brief Holder for the State as well as Sri L.K. Tewari, Adv. for Respondent Nos.2 to 5, all of them submitted that after passing of the judgment and order dated 29.07.1995 which is under challenge, now a period of more than fourteen years has expired. They further submitted that now the reconstruction of the record is also not possible. In a judgment rendered by Allahabad High Court in the case of Aziz Khan Vs. State of U.P. reported in ACC 1992 (29) 223, it was held as under: - “Where record has been lost or destroyed and it is not possible to reconstruct the record, it will not be just or proper to direct the retrial of the case if a long gap has elapsed since the commission of the offence. The occurrence had taken place on 15.10.1976 i.e. 15 years back and the complete record has not been reconstructed; Applying the principle laid down in the above mentioned authorities, we are of the opinion that the appeal of Aziz Khan should be allowed and his conviction and sentence should be set aside and the government appeal against acquittal of accused- respondents is liable to be dismissed.” 3. In view of the above said dictum of Allahabad High Court, the appeal preferred by the appellant-Ramesh Berry is dismissed. The judgment and order dated 29.07.1995 passed by Sessions Judge, Dehradun in Misc. Case No.1/93, Ramesh Berry Vs. Ganpat Ram Chandana & three others, is affirmed. (Dharam Veer, J.) July 21, 2009 Rajeev Dang