IMPORTANT POINT
When the name of accused is added in statement u/s 161, CrPC and no plausible explanation comes forth for omission of his name in FIR, the accused cannot be convicted.

JUDGMENT :

N.V. RAMANA, J.

1. Heard counsels for both the parties.

2. The present appeal is preferred by the State against the impugned order dated 08.09.2009 passed by the High Court of Himachal Pradesh, Shimla, wherein the High Court while accepting the appeal preferred by the accused-Respondent, set aside the earlier order of conviction passed by the trial court and acquitted the accused-Respondent from all charges.

3. The brief case of the prosecution necessary for the adjudication of the matter is as follows. On 10.09.1999, around eight persons including the accused-Respondent were alleged to have formed an unlawful assembly with a common object of causing deadly assault upon PW-1 Ashwani Kumar, PW-2 Ram Pal and three other deceased persons. The accused persons allegedly armed with deadly weapons such as, swords, gandasis, hockey sticks, clutch wire, etc. blocked the roads and around 9:30p.m, the victims reached the place of occurrence, the accused persons attacked them and the intended criminal act was accomplished within 3-4 minutes. The alleged persons fled the scene of crime before the injured and the deceased could raise an alarm. Thereafter, the police were informed by 9:35 p.m., through the telephone and an entry was made in the Rojnamacha, at the Police Station, regarding the aforesaid incident.

4. Thereafter, the injured persons were taken to the hospital. But, while the deceased persons, Rajiv Kumar, Raj Kumar and Santokh Singh were undergoing treatment, they succumbed to their injuries. In the meanwhile, P.W 29-ASI recorded the statement of PW-1 Ashwani Kumar. During the course of investigation, the accused persons, including the present accused-Respondent were arrested. Allegedly, the accused-Respondent made a disclosure statement, which led to the recovery of the clutch wire. After the completion of the investigation, seven more accused persons were challaned along with the present Respondent for screening the accused persons and helping them in the obstruction of evidence.

5. The trial court after relying upon the statements of two injured eye-witnesses, PW-1 Ashwani Kumar and PW-2 Ram Kumar, concluded that, the accused-Respondent along with seven others are guilty under Sections 302, 324, 323, 341, 148 read with Section 149 of the Indian Penal Code (hereinafter referred as “IPC”). Accordingly, the sessions court awarded the following sentence; Imprisonment for life and a fine of Rs.50,000/- in default of payment of fine to undergo rigorous imprisonment for a further period of two years, for offence under Section 302, read with Section 149 of the Indian Penal Code; rigorous imprisonment for three years and fine of Rs.10,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of six months, for offence under Section 324, read with Section 149 of the Indian Penal Code; rigorous imprisonment for one year and a fine of Rs.5,000/- in default of payment of fine to undergo rigorous imprisonment for a further period of two months, for offence under Section 323, read with Section 149 of the Indian Penal Code; simple imprisonment for one month and a fine of Rs.500/-, in default of payment of fine to undergo simple imprisonment for a further period of seven days, for offence under Section 341 read with Section 149 of the Indian Penal Code; and rigorous imprisonment for three years and a fine of Rs.5,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of six months, for offence under Section 148, read with Section 149 of the Indian Penal Code.

6. Aggrieved by the above order of conviction, the accused persons preferred an appeal before High Court. The High Court, upon finding lack of evidence against the accused-Respondent and four other accused persons, allowed their appeal and acquitted them, while upholding the conviction of the other two accused persons. It may be noted that, since accused no.5, Ashok Kumar passed away during the trial, the proceedin