IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.638 of 2001 (Old No.406 of 1997) Durga Prasad & others … Appellants Versus The State … Respondents Dated: August 21, 2009 Sri Vishwa Prakash Bahuguna, Adv. i/b Mr. Ramji Srivastava, Adv. for the appellants 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 03.03.1997 passed by II Addl. Sessions Judge, Dehradun in S.T. No.107/1993, State Vs. Durga Prasad & Others, S.T. No.118/1993, State Vs. Rajnish and S.T. No.119/1993, State Vs. Avnish, whereby the learned II Addl. Sessions Judge has convicted the appellants-accused Durga Prasad, Rajnish, Avnish and Manish under Section 147 and 307 of The Indian Penal Code, 1860 [hereinafter to be referred as the IPC] and each of them was sentenced to six months’ R.I. u/s 147 IPC and further three years’ R.I. u/s 307 IPC. Appellants-accused Rajnish and Avnish were further convicted u/s 148 IPC and also u/s 25/4 of the Indian Arms Act, 1959 and each of them was sentenced to six months’ R.I. u/s 148 IPC and further six months’ R.I. u/s 25/4 of the Indian Arms Act, 1959. All the sentences of all the accused were directed to run concurrently. On 18.07.2005, this Court summoned the record from the lower court. In compliance of that order, Officer-in-charge, Record Room (Civil) District Judge’s Court, Dehradun vide report dated 20.10.2005 informed that the record of the case has been turned to ashes due to fire in Record Room (Civil) in the night of 7.12.1999, hence the record cannot be sent. On 27.2.2006, this Court directed the District Judge, Dehradun to get the record of the case reconstructed. However, in compliance thereof, photocopies of some of the documents have been sent which are not sufficient to decide the present case. Sri Vishwa Prakash Bahuguna, Adv. i/b Sri Ramji Srivastava, Adv. for the appellants/accused and Sri M.A. Khan, learned Brief Holder for the State, both have submitted that after passing of the judgment and order dated 03.03.1997 which is under challenge, now the period of about twelve 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 appellants-accused stands allowed. The judgment and order dated 03.03.1997 passed by Second Additional Sessions Judge, Dehradun in S.T. Nos.107/93, State Vs. Durga Prasad & others, S.T. No.118/1993, State Vs. Rajnish and S.T. No.119/1993, State Vs. Avnish, convicting and sentencing the appellants-accused as discussed above, is hereby set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) August 21, 2009 Rajeev Dang