IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 396 of 2001 (Old No. 1936 of 1997) Manoj ….Appellant Versus State ….Respondent June 28, 2010 Smt. Beena Pandey, Advocate for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State. HON. DHARAM VEER, J. The present appeal has been preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter reffered to as CrPC) against the judgment and order dated 10.11.1997 passed by III Additional Sessions Judge, Dehradun in Sessions Trial No. 94/1995, State Vs. Sandal Singh & Others, whereby the appellant Manoj has been convicted under Section 363, 366 and 376 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to udergo RI for 3 years u/s 363 IPC along with fine of Rs. 2000/-, RI for 4 years u/s 366 IPC along with fine of Rs. 3000/- and RI for 5 years u/s 376 IPC along with fine of Rs. 5000/- All the sentences were directed to run concurrently. However, co-accused Sandal Singh and Smt. Munni Devi were acquitted of the charges leveled against them. 2. In compliance of the order dated 8.8.2005 passed by this Court summoning the record of the trial court, Officer in-charge, Record Room (Civil), District Judge’s Court, Dehradun vide his report dated 11.8.2005 Has reported that the record of the case has been burnt to ashes due to fire in Reocrd Room (civil), Dehradun in the night of 7.12.1999. Hence, record cannot be sent. Thereafter this Court vide order dated 27.6.2006 directed the District Judge to try to reconstruct the said record But till date the said record could not be reconstructed. 3. Smt. Beena Pandey, learned Counsel for the appellant submitted that after passing of the judgment and order dated 10.11.1997 which is under challenge, now the period of more than twelve years has expired. She further submitted that now the reconstruction of the record or retrial is also not possible. Learned Brief Holder for the State also conceded that now the reconstruction or retrial is not possible. 4. 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 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 aforementioned circumstances and the dictum of Allahabad High Court, the appeal preferred by the appellant stands allowed. The judgment and order dated 10.11.1997 passed by III Additional Sessions Judge, Dehradun in Sessions Trial No. 94/1995, State Vs. Sandal Singh & others is hereby set aside. Accordingly, the conviction of the appellant is set aside and he is acquitted of the charge of offence punishable u/s 363, 366 and 376. Sentence awarded to the appellant to undergo RI for 3 years u/s 363 IPC along with fine of Rs. 2000/- RI for 4 years u/s 366 IPC along with fine of Rs. 3000/- and RI for 5 years u/s 376 IPC along with fine Rs. 5000/- is quashed. Appellant is on bail. His bail bonds are cancelled. He need not surrender unless required in any other case. (Dharam Veer, J.) 28.6.2010 Prabodh