IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1185 of 2001 (Old No. 1236/1997) Sudershan Lal S/o Munshi Ram And Another. .…. Appellants Versus Smt. Renu Kakkar .… Respondent April 30, 2009 Mr. S.S. Bhandari, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State. None for the respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 26.6.1997 passed by the Additional Sessions Judge, Dehradun in Sessions Trial No. 15 of 1996, State through Smt. Renu Kakkar v. Sudershan Lal & Anr., whereby learned Additional Sessions Judge has convicted the appellants/accused u/s 460 of Indian Penal Code, 1860 (for short, I.P.C.) and sentenced the appellant no. 1 Sudershan Lal to one and half year’s R.I. and released the appellant no. 2 Smt. Parwati Devi on probation of good conduct for the identical period of time. 2. Chief Judicial Magistrate, Dehradun vide his report dated 9.8.2004 has reported that appellant no. 2 Smt. Parwati Devi has died on 22.9.2001 and her death certificate has also been annexed with the said report. Hence, appeal of appellant no. 2 Smt. Parwati Devi stands abated. 2 3. Heard learned Counsel for the appellant and learned Brief Holder for the State. None appeared on behalf of the respondent despite sufficient service. 4. Officer Incharge, Record Room (Civil), District Judge’s Court, Dehradun vide his report dated 20.4.2009 has reported that the record of aforesaid Sessions Trial No. 15/1996, State through Smt. Renu Kakkar v. Sudershan Lal & Anr. decided by Additional Sessions Judge, Dehradun has completely been burned down due to fire in record room (civil) in the month of January, 2001. 5. Learned Counsel for the appellant submitted that the judgment and order which is under challenge has been passed on 26.6.1997 and nearly 12 years has elapsed in between. He has further submitted that the trial court record of the case burned down in January, 2001 and reconstruction of the record or retrial is not possible and, therefore, in these circumstances, the appeal deserves to be allowed. 6. I find force in the submissions of the learned Counsel for the appellant. The commission of offence has taken place on 12.8.1991 and much time has elapsed thereafter. Even otherwise, record of the case has completely been destroyed in fire and reconstruction of the record or retrial is not possible in the facts and circumstances of the case. My view is further fortified by the observations made by Division Bench of Allahabad High Court in the case of Aziz Khan v. State of U.P. reported in ACC 1992 (29) 223, wherein it has been observed as under: “Where record has been lost or destroyed and it is not possible to reconstruct the record, 3 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 acquittal of the accused-respondents is liable to be dismissed.” 7. In view of my foregoing discussion and legal proposition, the appeal of Sudershan Lal deserves to be allowed and is hereby allowed and the judgment and order dated 26.6.1997 passed by the Additional Sessions Judge, Dehradun in Sessions Trial No. 15/1996, State through Smt. Renu Kakkar v. Sudershan Lal & Anr., is hereby set aside and his conviction and sentence of one and half year’s u/s 460 I.P.C. is quashed. The appellant Sudershan Lal is on bail. He need not surrender. His bail bonds are cancelled. Sureties are discharged. (Dharam Veer, J.) 30.4.2009 PRABODH