IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.1196 of 2001 (Old No.979 of 1997) Gulzar & another … Appellants Versus The State … Respondents Dated: June 23, 2009 Sri Gopal Dutt Joshi, Advocate i/b Mr. Lokendra Dobhal, Adv. for the appellants Sri M.A. Khan, Brief Holder for the State HON. DHARAM VEER, J. The present appeal has been preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) against the judgment and order dated 29.04.1997 passed by Additional Sessions Judge/Special Judge (E.C. Act), Dehradun in S.T. No.33 of 1996, State Vs. Gujzar & another, whereby the learned Addl. Sessions has convicted the appellants/accused under Sections 452 and 323/34 of The Indian Penal Code, 1860 [hereinafter to be referred as the IPC]. Appellants-accused were sentenced to two years’ R.I. each with fine of Rs.500/- each u/s 452 IPC and in default of payment of fine, three months’ further S.I. was awarded. Each of the appellant- accused was further convicted u/s 323/34 IPC and was sentenced to six months’ imprisonment each. All the sentences were directed to run concurrently. However, the appellants-accused were acquitted for the offence punishable u/s 308/34 IPC. On 20.07.2005, this Court summoned the record from the lower court. In compliance of that order, Officer In-charge, District Judge’s Court, Dehradun vide report dated 17.10.2005 has informed that the record of the case has been turned to ashes due to fire in Record Room (Civil) Dehradun in the night of 7.12.1999, therefore, the record could not be sent. Sri Gopal Dutt Joshi, Adv. i/b Mr. Lokendra Dobhal, 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 29.04.1997 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 29.04.1997 passed by Additional Sessions Judge/Special Judge (E.C. Act), Dehradun in S.T. No.33/96, State Vs. Gulzar & another, 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.) June 23, 2009 Rajeev Dang