IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.632 OF 2001 (OLD NO.207/1997) Nawab ……… Appellant Versus The State ……… Respondent Dated: December 18, 2009 Mr. K.S. Verma, learned counsel for the appellant Mr. M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 7.2.1997 passed by Sessions Judge, Dehradun in S.T. No.309/1996, State Vs. Nawab, whereby the learned Sessions Judge convicted the accused-appellant Nawab under Sections 363, 366 and 376 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of five years and a fine of Rs.2,000/- under each of the aforesaid section. All the sentences were directed to run concurrently. 2. I have heard Sri K.S. Verma, learned counsel for the applicant as well as Sri M.A. Khan, learned brief holder for the State and perused the papers available in file. 3. Officer-In-Charge, Record Room (Civil), District Judge’s Court, Dehradun vide report dated 5.6.2007 has reported that the record of the S.T. No.309/1996, State Vs. Nawab, has been burnt to ashes in an incident of fire 2 in Record Room (Civil), Dehradun in the night of 7.12.1999. Hence, the record cannot be sent. 4. Learned counsel for both the parties have submitted that after passing of the order dated 7.2.1997, which is under challenge, the period of about 12 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 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”. 5. For the reasons recorded above and in view of the aforesaid quoted judgment of the Division Bench of the Hon’ble Allahabad High Court, the appeal is liable to be allowed. 6. Accordingly, the appeal is allowed. The judgment and order dated 7.2.1997 passed by Sessions 3 Judge, Dehradun in S.T. No.309/1996, State Vs. Nawab, is hereby set aside. Consequently, the conviction and sentence awarded by the court below against the appellant, is also set aside. (Dharam Veer, J.) 18.12.2009 RG