IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.47 OF 2001 (OLD NO.1665/1998) The State ……… Appellant Versus 1. Pappu 2. Sukhveer Singh …… Respondents Dated: April 08, 2009 Sri M.A. Khan, learned brief holder for the State Sri A.K. Sharma, learned counsel for the respondents HON. DHARAM VEER, J. This criminal appeal, preferred by the appellant u/s 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 16.12.1997 passed by Additional Sessions Judge, U.M.C., Dehradun in Sessions Trial No.173/1996, State Vs. Pappu & another, whereby the learned Additional Sessions Judge, acquitted the respondents under Sections 363/366/376/368 I.P.C. 2. I have heard Sri M.A. Khan, learned brief holder for the State/appellant as well as Sri A.K. Sharma, learned counsel for the respondents. Perused the entire material available on file. 3. On 28.5.2002 this Court summoned the record. In compliance of that order, District Judge, Dehradun has submitted his report dated 26.9.2003. A perusal of the said report shows that the record of the above-said case has been damaged as a result of fire which broke out in the Record Room of the said court 2 in the night of 7/8.12.1999. Record of the case has been received by this Court in which major part of the record has been burnt and damaged. As the major part of the record has been burnt and damaged too, therefore, it is not feasible to decide the case on the basis of burnt and damaged record. 4. Learned counsel for both the parties have also submitted that after passing of the order dated 16.12.1997 which is under challenge, now the period of about 11 years has expired and now the reconstruction of the record or retrial is not possible. I am also of the view that appreciation of evidence is not possible on the basis of incomplete statements. 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 leave to appeal is refused. Consequently, the appeal is also 3 dismissed. The judgment and order dated 16.12.1997 passed by Additional Sessions Judge, U.M.C., Dehradun in Sessions Trial No.173/1996, State Vs. Pappu & another, is confirmed. (Dharam Veer, J.) 08.04.2009 RG