IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.2011 OF 2001 (OLD NO.1656/1999) The State ……… Appellant Versus Shamshad & others ……… Respondents Dated: July 21, 2009 Sri M.A. Khan, learned brief holder for the State Sri Manish Arora, learned counsel for the respondents HON. DHARAM VEER, J. This criminal appeal, preferred by the State 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 04.03.1999 passed by Judicial Magistrate, Roorkee, Haridwar in Case No.327/1998, State Vs. Shamshad @ Babu and others, whereby the learned Judicial Magistrate, Roorkee acquitted the respondents of the charges under Sections 498A/323/324 of the Indian Penal Code, 1860 and 3/4 of the Dowry Prohibition Act, 1961. 2. I have heard Sri M.A. Khan, learned brief holder for the State/appellant as well as Sri Manish Arora, learned counsel for the respondents. Perused the entire material available on file. 3. Judicial Magistrate, Roorkee, District Haridwar vide his report dated 27.6.2007 has reported that the record of the Criminal Case No.327/1998, State Vs. Babbu and others, has been weeded out as per rules. 4. Sri M.A. Khan, learned brief holder for the State/appellant and Sri Manish Arora, learned counsel for the respondents both have jointly submitted that after passing of the order dated 04.03.1999, which is under 2 challenge, now the period of about 10 years has expired and now the reconstruction of the record or retrial is not possible. I am also of the view that a long gap has elapsed since the commission of the offence, hence, the reconstruction of record or retrial is not possible. 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 appeal is liable to be dismissed. 6. Accordingly, the State appeal is dismissed. The judgment and order dated 4.3.1999 passed by Judicial Magistrate, Roorkee, Haridwar in Case No.327/1998, State Vs. Shamshad @ Babu and others, is hereby affirmed. (Dharam Veer, J.) July 21, 2009 RG