IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL NO.1941 OF 2001 (OLD NO.139/1998) Ram Kishan & four others …….Appellants Versus The State …..Respondent (2) CRIMINAL APPEAL NO. 1567 OF 2001 (OLD NO.1447/1998) Karam Chand & another …..Appellants Versus The State …..Respondent Dated: April 24, 2009 Sri S.S. Bhandari, Advocate holding brief of Sri Vinod Sharma, learned counsel for the appellants Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. Both these criminal appeals have been preferred against the common judgment and order dated 31.07.1998 passed by Ist Additional Sessions Judge, Dehradun. Hence, both the appeals are being disposed of by this common judgment and order. 2. These criminal appeals, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against the judgment and order dated 31.07.1998 passed by Ist Additional Sessions Judge, Dehradun in S.T. No.01/1994, State Vs. Karam Chand & others, whereby the learned Ist Additional Sessions Judge convicted the accused/appellant Karam Chand alias Karma under Sections 148, 332/149 and 333/149 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and was sentenced to undergo one year’s R.I. u/s 148 I.P.C. and one year’ R.I. u/s 332/149 I.P.C. Further two years’ R.I. and fine of Rs.1,000/- was awarded to him u/s 333/149 I.P.C. Accused/appellants, namely, Jagat Singh, Ram Kishan, Daulat, Gulab Singh, Gian Chand and Devi Singh were also found guilty and were convicted under 2 Sections 147, 332/149 and 333/149 I.P.C. They were sentenced to one year’s R.I. u/s 147 I.P.C., one year’s R.I. u/s 332/149 I.P.C. and two years’ R.I. and fine of Rs.1,000/- each u/s 333/149 I.P.C. It was also directed that in default of payment of fine each of the accused/appellants shall further undergo three months R.I. 3. I have heard Sri S.S. Bhandari, Advocate holding brief of Sri Vinod Sharma, learned counsel for the appellants and Sri M.A. Khan, learned brief holder for the State. Perused the entire material available on file. 4. Officer-In-Charge, Record Room (Civil) /District Judge’s Court, Dehradun vide his report dated 6.1.2006 has reported that the record of the Sessions Trial No.01/1994, State Vs. Karam Chand @ Karma has been burnt in an incident of fire which broke out in the Record Room (Civil) /District Judge’s Court, Dehradun in the night of 7.12.1999. Hence, the record cannot be sent. 5. Learned Counsel for both the parties have submitted that after passing of the order dated 31.07.1998 which is under challenge, now the period of about 10 years has expired and now the reconstruction of the record or retrial is not possible. I am also of the view that a long gap has elapsed since the commission of the offence, hence, the reconstruction of record or retrial is not possible. I am fortified in my view with the 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 3 has elapsed since the commission of the offence. The occurrence had taken place on 15.10.76 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 aquittal of the accused-respondents is liable to be dismissed”. 6. For the reasons recorded above and in view of the aforesaid quoted judgment of the Division Bench of the Hon’ble Allahabad High Court, both the appeals are liable to be allowed. 7. Accordingly, both the appeals are allowed. The judgment and order dated 31.07.1998 passed by Ist Additional Sessions Judge, Dehradun in S.T. No.01/1994, State Vs. Karam Chand & others, is hereby set aside. Consequently, the conviction and sentence, awarded by the trial court, is also set aside. (Dharam Veer, J.) April 24, 2009 RG