IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.424 of 2001 (Old No.2516 of 1998) Raj Kumar … Appellant Versus The State … Respondents Dated: June 23, 2009 Sri Gopal Dutt Joshi, Advocate i/b Mr. Manish Arora, Adv. for the appellant Sri M.A. Khan, Brief Holder for the State HON. DHARAM VEER, J. The present appeal has been preferred against the judgment and order dated 29.10.1998 passed by the Additional Sessions Judge, Roorkee in Misc. Criminal Case No.4 of 1998, State Vs. Raj Kumar, whereby the learned Addl. Sessions Judge has convicted the appellant/ accused under Section 194 of The Indian Penal Code, 1860 [hereinafter to be referred as the IPC] for giving false evidence as per the provisions of Section 344 Cr.P.C. and sentenced him to three months’ R.I. On 10.03.2006, this Court summoned the record from the lower court. In compliance of that order, In-charge Officer, Additional District Judge Roorkee, District Haridwar vide report dated 26.06.2006 on the basis of report of In-charge Officer, Record Room (Criminal), Saharanpur has informed that the record of the case has been weeded out on 7.6.2004 as per rules. Sri Gopal Dutt Joshi, Adv. i/b Mr. Manish Arora, Adv. for the appellant/accused and Sri M.A. Khan, learned Brief Holder for the State, both have submitted that after passing of the judgment and order dated 29.10.1998 which is under challenge, now the period of about eleven years 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.” 5. In view of the above said dictum of Allahabad High Court, the appeal preferred by the appellant-accused Raj Kumar stands allowed. The judgment and order dated 29.10.1998 passed by Additional Sessions Judge, Roorkee in Misc. Crl. Case No.4/98, State Vs. Raj Kumar, convicting and sentencing the appellant-accused as discussed above, is hereby set aside. The appellant is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) June 23, 2009 Rajeev Dang