IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 165/1998. Date of Decision : April 7, 2010. State of H.P. …Appellant. Versus Montaj Ali. …Respondent. Coram: Hon’ble Mr. Justice, Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the respondent. : Mr. Karan Singh, Advocate. Surjit Singh, J. (Oral): State has challenged, in this appeal, the judgment dated 29th October, 1997 of the learned Sessions Court, Nahan, whereby respondent Montaj Ali, who was tried for an offence, under Section 302 of the Indian Penal Code, has been acquitted. 2. Prosecution’s case is that deceased Sarwan was employed as a driver on truck No.UP-12-A-2325 owned by PW-3 Anup Singh. Some time in the month of November, 1995, deceased Sarwan started with the truck loaded with coal, from 1 Whether reports of Local Papers may be allowed to see the judgment? - 2 - Calcutta side. The coal was to be brought to Kala Amb and delivered in a factory of which PW-1 Sahib Singh Rana was the Manager. On the way, deceased went to PW-15 Siri Prashad in village Purasujan Rai, Tehsil Badlapur, Distrcit Jonpur and asked him to provide some cleaner for his truck. PW-16 Raj Bahadur was also present at the place of PW-15 Siri Prashad when the latter was approached by the deceased. PW-16, Raj Bahadur got employed the respondent as cleaner with the deceased. The truck reached Kala Amb on 24th November, 1995 in the evening. At that time PW-5 Vipin Singh was on duty. He got the coal unloaded from the truck. Deceased then demanded the freight. He was told that freight would be paid next day by the Manager of the factory. Vipin Singh was on duty that night up to 8.00 p.m. only. After his duty time was over, PW-6 Julfikar Ali came for duty as Chowkidar. He saw deceased going out of the factory with his truck around 9.15 P.M. for taking meals. He returned at 10.00 P.M. after taking meals. Two persons including the cleaner of the truck, namely, Montaj Ali, respondent were accompanying him. 3. Next day, i.e. on 25.11.1995, Sahib Singh Rana, PW-1 went to the factory at 10.00 A.M. He asked PW-5 Vipin Singh, who had returned for duty as Chowkidar by that time to call the driver of the truck to collect freight. Vipin Singh found that the driver was lying in the cabin of the truck with his head on the steering. He informed the Manager accordingly. Upon that Sahib Singh Rana PW-1, himself went to the cabin of the truck - 3 - and found that the driver was lying dead. He went to Police Post, Kala Amb and lodged report, which was entered in the Rojnamcha, copy of which is Ex.-A. Police reached the spot. It was found that driver of the truck, namely, Sarwan was dead. He had injuries on his head and face. One iron rod, Ex. P-15 and one screw driver Ex.P-16 were lying in the cabin. They were stained with blood and were taken into possession. Several other articles lying in the cabin were also taken into possession. Inquest was conducted and the dead body was sent to district hospital at Nahan for post-mortem. PW-8 Dr. A. Chaturvedi conducted the post-mortem. He found the following injuries on the dead body: ”Multiple injuries were present over the skull, on right temporal region-deep CLW shape inverted V size 2” X 1 cm deep, coloured dark red, margins irregular and ragged. No mud present over the wound. No mark of ligature present over the neck. Just about the wound one CLW of V shape size 3cm. x 1cm deep, colour deep red, margins were irregular and ragged. Left fore head: CLW was present 2” above left eye-brow, size 2cm x 1cm deep vertical colour dark red. Margins were irregular. Inner side of the bone was visualizing. Above the Middle of upper lip: Oval shaped lacerated wound size 1cm x 1cm colour dark red, margins irregular. Outside of the right angle of mouth: Lacerated wound 1.5 cm. x 1cm, colour dark red, margins irregular and ragged. Blood was oozing and - 4 - coagulated over the upper chest and neck was present. Right upper arm: In-cubital region 3 oval shaped deep lacerated wound was present, colour dark red, size of each wound 1cm x 1cm, margins were irregular and zig- zag deep. Right side of wrist on flexor surface: A contusion was present over the middle of the wrist size 2” x 2cm, colour brownish black, direction oblique slightly elevated margins were black and well defined. Right upper part of arm: 2 contusions were present, size (1) 4cm x 2 cm oblique, colour brownish black. (2) 1” x 2cm, oblique, colour same brownish black. No evidence of fracture, coagulated blood was present over the chest and upper abdomen. Fracture was present over right temporal region of the skull, fissured type just inner side of CLW already mentioned. As soon as the skull was opened, the gush of blood came out, menings were congested over the temporal and frontal part of brain. Brain was intact but oedematous.” 4. Post mortem was conducted on 26.11.1995 at 11.30 A.M. Doctor gave the opinion that the death took place instantaneously with the infliction of injuries and that the time lag between death and the post mortem was 24-26 hours. 5. Respondent, Montaj Ali was found absconding. He was arrested after his application for anticipatory bail was rejected by the Sessions Judge on 24th January, 1996. Test - 5 - identification parade was arranged. It was conducted by the Chief Judicial Magistrate, Nahan. Respondent was identified as the cleaner of the truck, who accompanied the deceased to Kala Amb on 24.11.1995, by PW-5 Vipin Singh and PW-6 Julfikar Ali, the two Chowkidars of the factory. 6. On completion of investigation, final report, under Section 173 of the Code of Criminal Procedure along with evidence collected during investigation was filed in the Court of concerned Judicial Magistrate, who after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. Respondent was charged by the Sessions Judge, under Section 302 of the Indian Penal Code, to which he pleaded not guilty. So, he was put on trial. 7. Prosecution tried to link the respondent with the murder of deceased Sarwan by proving the following circumstances:- (a) Deceased was last seen in the company of respondent. (b) Respondent absconded after the murder of Sarwan. (c) Respondent was employed as cleaner on the truck by the deceased on 21.11.1995. 8. To prove circumstance (a) that the deceased was last seen in the company of respondent, prosecution examined - 6 - PW-5 Vipin Singh and PW-6 Julfikar Ali, employed as Chowkidars in the factory at Kala Amb. Though, these two witnesses according to the prosecution identified the respondent as the person, who came as cleaner of the truck with the deceased on 24th November, 1995, yet while in the witness box both of them stated that they did not know if the respondent was the person who came with the deceased as cleaner. They denied having identified the respondent during test identification parade conducted by the Chief Judicial Magistrate, Sh. Sher Singh Sen, PW-17. They stated that the respondent had been shown to them by the police at Police Post, Kala Amb before the test identification parade was held. This fact was disclosed by the respondent also to the Chief Judicial Magistrate, at the time of test identification parade. The statement of respondent to this effect forms part of the test identification proceedings proved on record. In view of the above stated position, it cannot be said that the respondent was with the deceased at the time when he went to the factory at Kala Amb on 24.11.1995. Thus, circumstance (a) does not stand established. 9. Now, when it is doubtful whether the respondent was accompanying the deceased when he went to Kala Amb driving the truck loaded with coal, the question of his having absconded does not arise. 10. As regards circumstance (c), no doubt, PW-15 Siri Parshad and PW-16 Raj Bahadur stated that they had got the respondent employed as cleaner with the deceased on 21st - 7 - November, 1995 when the deceased was driving the truck from Calcutta side to some place in Himachal Pradesh, but there is absolutely no evidence whether the respondent remained with the deceased as Conductor on the truck till the truck reached Kala Amb. This is especially so, when the two Chowkidars of the factory, namely, PW-5, Vipin Singh and PW-6, Julfikar Ali have stated that they were unable to identity the respondent as the conductor of the truck, in question. 11. In view of the above said position, we see no merit in the appeal and the same is, therefore, dismissed. (Surjit Singh), Judge. (Rajiv Sharma), Judge. April 7, 2010. (sck/r)