IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 316 of 2000. Decided on October 19, 2010. State of H.P. ..Appellant. Versus Shambhu Dutt & others ..Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellant Mr. R.K.Sharma, Senior Additional Advocate General, with Mr. Rajinder Dogra, Addl. AG. For the respondents Sh. Chaman Negi, Advocate, vice Mr. Anup Chitkara, Advocate. Per Surjit Singh, Judge (Oral) State has preferred this appeal against the judgment dated 15.6.1999, of Sessions Court, whereby respondents, who were charged with offence under Section 302 read with Section 34 IPC, have been acquitted. 2. Case of the prosecution is that on 5.5.1998, when PW-1 Surat Ram, resident of village Whether reporters of the local papers may be allowed to see the judgment? - 2 - Addain Gochar, Tehsil Paonta Sahib, District Sirmaur, went to a nearby forest, to answer call of nature, he saw a dead body lying in a nalah. The dead body was of a man. It was completely naked. He started back for the village and on the way back, PW-2 Amar Nath, Up Pradhan of the Panchayat, met him. He informed him about what he had seen in the forest. Both of them then went to the forest and saw the dead body. Thereafter, they proceeded towards the house of PW- 4 Sunder Singh, Pradhan of the Panchayat, to inform him, so that he reported the matter to the police. Pradhan met them on the way. After informing Pradhan of the Panchayat, they again returned to the forest, in the company of one Lal Chand. This time, the dead body was not there in the forest. 3. PW-16 Bhagat Singh, SHO, Police Station, Paonta Sahib, reached the spot on the same day, around 8 P.M. It having grown dark, he deferred the investigation to the next morning. On 6.5.1998, respondent Shambhu Dutt was arrested. He made a disclosure statement Ex.PB, that he and other respondents had kept hidden the dead body in a nalah and had covered the same with sand and a big piece of stone. On the basis of statement Ex.PB, dead body was recovered in the presence of PW-12, Sanjeev - 3 - Sharma, Naib Tehsildar and PW-4 Sunder Singh, Pradhan of the Panchayat. 4. Dead body could not be identified. It was sent to IGMC, Shimla for post mortem, where post mortem was conducted by PW-10 Dr. V.K.Mishra, Assistant Professor, Forensic Medicine. He opined that the cause of death was traumatic asphyxia, owing to throttling. 5. Respondent Maya Ram also made a disclosure statement, leading to discovery of a danda. Respondent Titu Ram got recovered a blood stained stone. Fourth respondent Kehar Singh could not be arrested and was declared proclaimed offender. 6. On completion of investigation, respondents were challaned. Case was committed to Sessions Court by the concerned Judicial Magistrate. It was assigned to learned Additional Sessions Judge. Respondents Shambhu Dutt, Maya Ram and Titu Ram were charged with offence under Section 302 read with Section 34 IPC. They pleaded not guilty. Therefore, they were put on trial. 7. Prosecution tried to link the respondents with the offence, by proving the following circumstances: - 4 - (a) Shambhu Dutt made a disclosure statement, leading to discovery of dead body, (b) Maya Ram made a disclosure statement, leading to the discovery of a danda, (c) Titu Ram made a disclosure statement, leading to the discovery of a stone. 8. Trial Court disbelieved the prosecution story regarding the discovery of dead body at the instance of Shambhu Dutt. It was also held by the trial Court that recovery of danda and stone, in no way, indicated that the respondents were guilty of murdering the unknown person, inasmuch as, according to the post mortem report and the testimony of the doctor, who conducted the post mortem examination, namely Dr. V.K.Mishra, PW-10, the cause of death was asphyxia, resulting from throttling. Consequently, respondents were acquitted. 9. We have heard learned Senior Additional Advocate General, as also the counsel, representing the respondents, and gone through the record. 10. Learned trial Court has observed that the story, that the dead body, after having been initially spotted in the nalah by PW-1 Surat Ram, went missing and that thereafter, it was recovered pursuant - 5 - to disclosure statement, made by respondent Shambhu Dutt, appears to have been concocted, to link the respondents with the killing of the man. We find no reason to disagree with this observation of the trial Court. Though, according to the investigating officer, namely, PW-16 Bhagat Singh, the dead body was recovered on 6.5.1998, after Shambhu Dutt made disclosure statement, record of which is Ex.PB, we find from prosecution’s own evidence that the above named investigating officer had seen the dead body on 5.5.1998 itself, when he went to the spot, accompanied by a photographer, namely PW-13 Gulsher Ahmad. This photographer testified that on 5.5.1998, he had taken photographs Exts. P-8 to P- 29, at the instance of the police. In one of these photographs, i.e. Ex.P-18, there is picture of a naked dead body, which is supposed to be of the man, for whose homicide, respondents were put on trial. Thus, testimony of PW-13 Gulsher Ahmad knocks the bottom out of the prosecution story. This reasoning of ours, is in addition to the reasons, given by the trial Court, to disbelieve this part of the prosecution story. 11. As regards the other two circumstances, learned trial Court has rightly observed that these two circumstances are of no consequence, because the - 6 - medical evidence shows that the deceased had been throttled to death. If that is so, danda and stone cannot be said to have been used as weapons, to kill the deceased. 12. For the fore going reasons, appeal is dismissed. (Surjit Singh) Judge. October 19, 2010(PC) (Rajiv Sharma) Judge.