IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1186 of 2001 (Old No.1230 of 1997) Amar Singh … Appellant Versus The State … Respondents Mr. Ramji Srivastava, Adv. for the appellant Mr. M.A. Khan, Brier Holder for the State Dated: July 17, 2009 HON. DHARAM VEER, J. The present appeal has been preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) against the judgment and order dated 10.06.1997 passed by III Additional Sessions Judge, Dehradun in S.T. No.143 of 1995, State Vs. Amar Singh, whereby the learned III Addl. Sessions Judge has convicted the appellant-accused for the offence punishable under Section 323 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced him to six months’ R.I. In compliance of the order dated 1.8.2005 passed by this Court summoning record from the lower court, Officer-in-Charge Record Room (Civil) District Judge’s Court, Dehradun vide his report dated 17.10.2005 informed that the record of the case has been turned to ashes due to fire in Record Room (Civil) Dehradun in the night of 7.12.1999. Hence, the record cannot be sent. On 6.5.2006, this Court against directed the concerned District Judge to get the record of the case reconstructed within two months. In compliance of that order, the reconstructed record has been sent in which only the photocopy of the judgment and order passed by the trial court and a copy of some of the orders have been sent. However, those documents are not sufficient to decide the present case. Hence, Sri Ramji Srivastava, Advocate for the appellant- accused and Sri M.A. Khan, learned Brief Holder for the State/Respondent No.1, both have submitted that after passing of the judgment and order dated 10.06.1997 which is under challenge in this appeal, now the period of more than twelve years has elapsed. They further submitted that now the reconstruction of the record or 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- respondents is liable to be dismissed.” 5. In view of the above, the appeal preferred by the appellant-accused stands allowed. The judgment and order dated 10.06.1997 passed by III Additional Sessions Judge, Dehradun in S.T. No.143 of 1995, State Vs. Amar Singh is hereby set aside. Appellant is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) July 17, 2009 Rajeev Dang