IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.92 of 1999. Date of decision: 29.10.2010 State of H.P ..Appellant Versus Malkiat Singh & anr. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Shri Vivek Singh Thakur, Addl. Advocate General. For the respondents: Mr.Subhash Sharma, Advocate. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgment dated 31.10.1998 delivered by the learned Sessions Judge, Bilaspur in Sessions Trial No.38 of 1997 whereby the accused have been acquitted of having committed offences punishable under Section 302 read with Section 34 of the Indian Penal Code. 2 2. The prosecution story, in brief, is that the deceased Kishori Lal was a driver of Taxi No.HP-02-4532. The version of the prosecution is that two persons namely Malkiat Singh and Devinder Pal alongwith with Ram Chand (who has since expired) and two other persons Dinesh Kumar and Bablu who were declared to be proclaimed offenders by the learned Committing Magistrate hired a taxi of the deceased and on the way, they murdered Kishori Lal near the rain shelter at Jhamradia. 3. The report (Ext.PW1/A) was lodged at the instance of PW/1 Sh.Ram Lal. According to him, he was going towards his house at about 8.30 p.m. When he was near the rain shelter at Jhamradia, he heard the shrieks of some person from the bushes below the road. He asked the person the reasons for the cries but got no reply. He went towards his house so as to collect the torch or other instrument to light up the place. According to him, two persons asked him to stop from behind. He got scared and ran away towards his house. He then disclosed about the incident to his co-villagers. He returned to the 3 spot alongwith other co-villagers. A person was found dead. Thereafter, he went to the police station to lodge the report. This witness has stated the same thing while appearing in Court and he has clearly stated that he could not identify the persons who had asked him to stop. 4. Admittedly, the deceased Kishori Lal was murdered. There is no doubt in this regard. However, it was for the prosecution to prove who murdered the deceased. Admittedly, there is no eye witness to the incident. Therefore, it was incumbent upon the prosecution to prove that it was the accused who had hired and boarded the taxi and were being taken to the Baba Balak Nath Temple by the deceased. 5. To prove this fact, the prosecution relied upon the following two circumstances:- (1) That the deceased alongwith the four of the accused persons had stayed the night at New Sangam Chandel Hotel, Bilaspur. (2) That the finger prints of some of the accused persons were found on the taxi in question. 4 6. As far as the first circumstance is concerned, the same has not been proved at all. Narinder Singh, Proprietor of New Sangam Hotel, Bilaspur was examined as PW/6. According to this witness, four persons stayed in his hotel on 12.3.1997 and entry was made in the visitor register Ext.PW6/A. He denied that the accused Malkiat Singh had made the entry in the register. He was cross- examined at length by the prosecution but to no avail. Surprisingly, the prosecution took no steps whatsoever to get the specimen handwriting of Malkiat Singh and get it compared with the handwriting on the register. 7. In fact, this case is fraught with material to show that the Investigating Officer has totally failed to perform his duty. The prosecution case is that the deceased was the driver of the taxi and he was murdered by the persons who had hired the taxi. After the incident, the taxi, in question, was handed over to the owner of the taxi without obtaining any orders from the Court. The vehicle itself could have contained very material evidence to connect the persons who had murdered the deceased but we fail to understand why the Investigating Officer did 5 not secure the vehicle in such a condition that it could not be tampered with. 8. The incident is alleged to have been taken place on 13.3.1997. The accused were arrested on 16.3.1997. The finger prints from the taxi were lifted on 14.3.1997 and the fingerprints of Malkiat Singh and Devinder Pal, accused were taken in the police station on 18.3.1997. The vehicle was released to its owner on 16.3.1997 without obtaining orders from the Court. There is in fact, no evidence to show how the vehicle was released. Therefore, the possibility of the finger prints having been later placed on the vehicle cannot be ruled out. These finger prints were sent to the Director, Finger Prints Bureau, Phillaur on 2.5.1997. There is no explanation as to why for almost one and half months, i.e. from 18.3.1997 till 2.5.1997, the finger prints were not sent to the Finger Print Bureau, Phillaur. Therefore, the possibility of the finger prints being tampered with also cannot be ruled out. 9. These were the main two circumstances which were relied upon by the prosecution. Since both the main 6 circumstances have not been proved, the learned Trial Court was justified in acquitting the accused. we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 29th October, 2010 (Sanjay Karol) (m) Judge