IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No.1618 of 2001 (Old No.386 of 2000) The State … Appellant Versus Bhuneshwar Arya … Respondent Dated: September 9, 2010 HON. DHARAM VEER, J. Heard Sri Prabhakar Joshi, learned Brief Holder for the State/appellant and Sri Navneet Kaushik, Adv. for the respondent. The present appeal has been preferred by the State u/s 378 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) against the judgment and order dated 20.09.1999 passed by the J.M. Nainital in Criminal Case No.131 of 1999, State Vs. Bhuneshwar Arya, thereby acquitting the respondent u/s 409 IPC. 2. On 10.10.2007, this Court summoned the record of the lower court. In compliance of that order, District Judge, Nainital vide report dated 29.10.2007 has informed that the record of the case has been weeded out on 10.3.2005 as per rules. Hence, learned counsel for the both the parties submitted that after passing of the judgment and order dated 20.9.1999 which is under challenge, now a period of about eleven year has expired. 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.” 3. In view of the above, the appeal preferred by the State is dismissed. The judgment and order dated 20.09.1999 passed by the court below is affirmed. (Dharam Veer, J.) September 9, 2010 Rajeev Dang