IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL CRIMINAL APPEAL NO. 481/2007 Radhey Shyam, S/o of Shankar Lal, R/o Kichha, P.S. Kiccha, District Nainital. ………….. Appellant Versus 1. Vishambhar Dayal, S/o Sri Jagram 2. Roshan Lal, S/o Sri Vishambhar Dayal, 3. Suresh Chandra, S/o Sri Vishambhar Dayal 4. Subhash Chandra S/o Sri, Vishambhar Dayal 5. Radha Krishna, S/o Sri Dhanpat Rai, 6. Mahesh Kumar, S/o Sri, Dhanpat Rai 7. Dhanpat Rai S/o Sri Chandra Bhan, All are residents of Kasba Kichha, P.S. Kichha, District Nainital. ……….Respondents Dated: January 4, 2008 Sri Lokendra Dobhal, leaned counsel for the appellant. Sri J.C. Pande, learned counsel for the respondents. HON. DHARAM VEER , J. This appeal preferred, under Section 378 of The code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 31.01.1998 passed by Additional Judicial Magistrate, Rudrapur in Criminal Case no. 403/1996, whereby the learned Additional Judicial Magistrate has acquitted the respondents for an offence punishable u/s 379 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) by giving benefit of doubt. 2. On 01.11.2007 by the order of this Court the appeal against respondent no. 1- Vishambhar Dayal and respondent no. 7 Dhanpat Rai was abated. 3 On the same day i.e. 1.11.2007 this Court also summoned the record of the trial court. In compliance of that order Incharge Officer, District Magistrate, Nainital vide his report dated 30.11.2007 has informed that the record of the case has been weeded out on 9.07.2003. 4. Sri Lokendra Dobhal learned counsel for the appellant and Sri J.C. Pande, learned counsel for the respondents both have stated that after passing the judgment and order dated 31.01.1998, which is under challenge, the period of 9 years has expired. They further submitted that now the reconstruction of the record of the retrial 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 –respondent is liable to be dismissed. 5. In view of the above, appeal against acquittal of respondents is accordingly dismissed. The judgment and order dated 31.1.1998 passed by Additional Judicial Magistrate, Rudrapur, is hereby confirmed. (Dharam Veer, J.) Dated:04.01.2008 Rajeev Dang