[Per: Hon’ble U.C. Dhyani, J.]

This GovernmentAppeal is preferred by State of Uttaranchal against the Judgment and Order dated 27.01.2003 passed by leamed Additional Session Judge I FTC I Haridwar in Sessions Trial No. 85 of 1995 whereby accused I respondents Shyam Lal and Prakash alias Jai Prakash were acquitted of the charges of the offences punishable under Section 452, 302 IPC.

2. The contention of learned Additional GovemmentAdvocate was that the judgment and order passed by learned Additional Sessions Judge I FTC I Haridwar was illegal and contrary to the facts and material evidence available on record, Leamed trial court has wrongly disbelieved the prosecution evidence and wrongly acquitted accused I respondents. The findings recorded by the trial court were wholly based on conjectures and surmises. Learned A.G.A. therefore, prayed that the GovernmentAppeal be allowed and the impugned order of acquittal of the accused J respondents may be set .aside. A prayer was also made to convict and sentence the respondents according to law.

3. In the instant case criminal law was set into motion at the instance of Brijpal Singh s/o Puran Singh r/o Village Dhanpura PS. Pathri, District Haridwar. The complaint was addressed to the Station OfficerofP.S. Pathri alleging that on 31.10.1993 at 11:30 a.m. when he reached his residence from his fields, he saw that accused/respondents Shyam Lal and Prakash, both sons of Kabul Singh were armed with stained Kaatu and Patal (sharp edged weapons) who fled away in the east towards Fakironwali Gali. The informant heard the cries of children and women from inside the house who were saying that aunty (tai) was killed by Shyam Lal and Prakash. Raj Kumar and Som Dutt, both residents of village Dhanpura saw Prakash and Shyam Lal fleeing away in the lane. No sooner the informant entered into the house, he saw aunty {taij Chawli Devi dead and her body was lying near the cot in courtyard in pool of blood. Informant’s wife Bimla Devi and sister-in- law (bhabhl) told that Shyam.Lal and Prakash entered into the house with kaatu and patal in their hands. They inflicted blows of sharp edged weapons on the head and neck of victim. There was a dispute of land between Chawli Devi and Shyam Lal and that is why Chawli Devi (victim) was living with informant (apprehending danger to her life). The occurrence was alleged to have taken place on 31.10.1993 at 11:30 a.m. and the FIR was lodged the same day at 1:00 p.m. The distance

between the place of occurrence and Police Station concerned was 5 kms. Hence, there appeared to be no delay in lodging FIR. After investigation of the case a charge sheet for the offences punishable under sections 452 I 302 IPC was submitted against the accused I respondents. When the trial began, charges for the same offences were framed against the accused I respondents, to which they pleaded not guilty and claimed trial.

4. Prosecution examined as many as 11 witnesses viz., PW1 Bimla, PW20mwati, PW3 Brijpal Singh, PW4 Raj kumar, PW5 SI Surendra Singh, PW6 Constable Raj Kumar, PW7 SI Mohan Kumar Saini, PWe, Dr. B.N. Malhotra, PW9 Megh Raj Singh, PW10 Balbeer Singh and PW11 Som Dutt. Statements of the accused/respondents under Section 313 Cr. P.C. were taken. Accused /respondents adduced two witnesses viz. DW1 Anup Singh and DW2 Bijendra in defence. After having heard both the sides the trial court did not believe the prosecution story, held that the case against respondents was not proved beyond reasonable doubt and therefore, acquitted accused of the charges leveled against them. Aggrieved against

the aforesaid order dated 27.01.2003 this Govemment Appeal was preferred.

5. PW1 Bimla w/o Brijpal was the wife of informant who said that accused/respondent Shyam Lal and Jai Prakash attacked Chawli Devi (victim) when she was combing her hairs. PW1 Bimla and PW2 Omwati were sitting in courtyard whereupon they saw the incident. She supported prosecution story in her evidence.