IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.417 OF 2001 (OLD NO.2209/1998) Furkan & another ……… Appellants Versus The State ……… Respondent Dated: May 04, 2009 Ms. Geeta Parihar, Advocate holding brief of Mr. Lokendra Dobhal, learned counsel for the appellants Mr. M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This criminal appeal, preferred by the appellants 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 6.10.1998 passed by Additional Sessions Judge (E.C. Act), Dehradun in S.T. No.35/1996, State Vs. Furkan and another, whereby the learned Additional Sessions Judge (E.C. Act) has convicted the accused/appellants u/s 366 r/w Section 511 of the Indian Penal Code, 1860 (hereinafter to be referred as the I.P.C.) and sentenced them to three years’ R.I. and fine of Rs.500/- each. In default of payment of fine, each of the accused/appellants shall further undergo S.I. for a period of two months. 2. I have heard Ms. Geeta Parihar, Adv. holding brief of Mr. Lokendra Dobhal, learned counsel for the appellants and Mr. M.A. Khan, learned brief holder for the State. Perused the entire material available on file. 3. Officer-In-Charge, Record Room (Civil), District Judge’s Court, Dehradun vide his report dated 7.11.2005 has reported that the record of the S.T. No.35/1996, State Vs. Furkan & another, has been burnt to ashes in 2 an incident of fire 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 6.10.1998, which is under challenge, 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 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 6.10.1998 passed by Additional Sessions Judge (E.C. Act), Dehradun in S.T. 3 No.35/1996, State Vs. Furkan and another, is hereby set aside. Consequently, the conviction and sentence awarded by the court below against the accused/appellants, is also set aside. (Dharam Veer, J.) May 04, 2009 RG