IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1393 OF 2001 (OLD NO.500/1994) Union of India ……… Appellant Versus V.P. Rajvanshi ……… Respondent Dated: April 29, 2009 Sri Arvind Vashishta, learned counsel for the appellant None is present for the respondent HON. DHARAM VEER, J. This criminal appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 17.6.1981 passed by Chief Judical Magistrate, Dehradun in Criminal Case No.278/1980, Deputy Director of Mines Vs. V.P. Rajvanshi, whereby the learned C.J.M., Dehradun acquitted the respondent for the charge leveled against him. 2. I have heard Sri Arvind Vashitha, learned counsel for the appellant. None is present on behalf of respondent though service is reported to be sufficient. Perused the entire material available on file. 3. Officer-In-Charge, Record Room (Crl.), Chief Judical Magistrate, Dehradun vide his report dated 5.5.2004 has reported that the record of the Criminal Case No.278/80, Deputy Director of Mines Vs. V.P. Rajwanshi, has been weeded out on 4.7.1987 as per rules. 4. Sri Arvind Vashishta, learned counsel for the appellant has submitted that after passing of the order dated 17.6.1981 which is under challenge, now the 2 period of about 28 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 appeal is dismissed. The judgment and order dated 17.6.1981 passed by Chief Judical Magistrate, Dehradun in Criminal Case No.278/1980, Deputy Director of Mines Vs. V.P. Rajvanshi, is hereby affirmed. (Dharam Veer, J.) April 29, 2009 RG