IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.291/2001 Reserved on.28.2.2008 Decided on.7.3.2008 State of H.P. …Appellant. Versus Om Prakash and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the appellant : Mr. Anil Kumar Jaswal, Deputy Advocate General. For the respondents : Mr. Ashutosh Burathoki, Advocate. Rajiv Sharma, J. The respondents were accused in criminal case No.1/2 of 1997 and were prosecuted for offences punishable under sections 147, 148, 149, 451, 323 and 506 of the Indian Penal Code in the Court of Additional Chief Judicial Magistrate Kandaghat, District solan, H.P and were acquitted on 21.12.2000. The State has filed this appeal assailing the acquittal of the accused. The brief facts which can be culled out from the judgment of the trial court necessary for the adjudication of this case are that rapat No. 18 (Ex.PW-9/A) was entered in the rapat rojnamcha of Police Post Chail on the intervening night of 16/17.6.1996 at about 12.15 O’ clock at the instance of complainant Sewak Ram (PW-1) that he was a resident of village Bharech and while he was sitting in his house with his brother at 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 about 11.00 P.M., the accused persons gave beatings to him and his brother Ram Krishan with Dandas and axe. The complainant and his brother were sent for their medical examination and later on, on the basis of rapat No.18, FIR was registered at Police Station Kandaghat. The matter was investigated by the police and the challan was put up. The prosecution examined as many as 11 witnesses to prove its case against the accused persons. The accused persons were examined under section 313 of the Code of Criminal Procedure. They were acquitted by the trial court on 21.12.2000. The learned Deputy Advocate General had strenuously argued that the prosecution has proved the charges against the accused. He also contended that the trial court has failed to appreciate the evidence led by the prosecution during the trial. Mr. Ashutosh Burathoki, Advocate appearing on behalf of the respondents had supported the judgment dated 21.12.2000. I have heard the learned counsel for the parties and perused the record meticulously. What has been stated in rapat No. Ex.PW-9/A by the complainant Sewak Ram is that the accused had used dandas and exe while inflicting injuries to him and his brother Ram Krishan. The police have neither recovered the dandas nor the axe. The prosecution has not explained why the recovery of alleged weapon of offence was not effected to prove its case. It appears from the record that FIR was also got registered by the accused Om Prakash against the complainant-party but the same was cancelled due to delay on the part of Om Prakash. PW-1 though has stated that he was inflicted injuries by the accused persons by dandas and axe, but he has not stated which of the accused was in possession of 3 which kind of weapon. Baldev Singh (PW-2) has stated that he was also inflicted injuries by the accused persons with axe and darat. Neither there is any MLC of him nor there is detail of any injury in rapat Ex.PW-9/A. PW-4 Shanti Devi has stated that at the time of occurrence, she was in the kitchen with her younger son Chhattar Singh. There is variance in the statement made by her with the earlier statement made by her under section 161 of the Code of Criminal Procedure. PW-7 Roop Ram has denied that the clothes were sealed in his presence by the police vide recovery memo Ex.PW-1/A. PW-8 Ashok Kumar and PW-9 Rajender Singh are formal witnesses. PW-10 Sh. Ram Pal has partly investigated the case and the remaining investigation was carried out by PW-11 Rachhpal. PW-11 Rachhpal has admitted that he found that the occurrence took place in the house of Om Prakash and he also found that the walls of the house of Om Prakash were stained with blood. He has also stated that the door of the house of Om Prakash was also broken and complainant Sewak Ram had forcibly entered in the house of accused Om Prakash. What emerges from the statements of the witnesses is that PW-1 could not disclose which of the accused was in possession of which kind of weapon used in the commission of offence. The prosecution has failed to recover the axe or dandas alleged to have used in the commission of offence. PW-1 has stated that the occurrence has taken place in the house of Om Prakash and he has seen blood stains on the wall of the accused Om Prakash. PW-2 Baldev Singh has stated that he has received injuries but there is no MLC. PW-4 has improved her version when she appeared as a witness in the Court. 4 The result of the above discussion is that the appeal fails and the same is dismissed. The bail bonds furnished by the respondent-accused are discharged. ( Rajiv Sharma), Judge March 7, 2008 *Awasthi*