Madhya Pradesh High Court
Swaminath Singh vs State Of M.P. on 17 May, 2001
Equivalent citations: 2002CRILJ1343, 2001(3)MPHT404
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. Appellant Swaminath along with Ganpat Singh and Mohan Singh were put on trial for offence under Sections 120, 120B read with Sections 302 and 218 of the Indian Penal Code and under Section 27 of the Arms Act. First Addl. Sessions Judge, Bhopal by judgment dated 30th June, 1993, passed in Sessions Trial No. 99/84, held this appellant guilty of offence under Sections 302, 120B read with Sections 302 and 218 of the Indian Penal Code and Section 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for life for offence under Section 302 and 120B read with Section 302 of the Indian Penal Code and rigorous imprisonment for one year each for offence Under Section 218 of the Indian Penal Code and Section 27 of the Arms Act. Other accused persons were also found guilty of offence under Section 120B read with Section 302 of the Indian Penal Code and 27 of the Arms Act. Aggrieved by their conviction, the preferred separate appeals. Ganpat Singh and Mohan Singh died during the pendency of the appeal and therefore their appeals had abated. Hence, this judgment is confined to appeal preferred by appellant Swaminath Singh.
2. It is an admitted position that from October, 1983 to the date of incident i.e., 2-2-1984, appellant Swaminath was posted as Sub-Inspector of Police at T.T. Nagar Police Station in the town of Bhopal. In November, 1983, on a report lodged by one Sushila Bai before the T.T. Nagar Police Station, a case under Section 376 of the Indian Penal Code was registered against accused Mohan Singh and the investigation of the said case was entrusted to this appellant Swaminath. It is further an admitted position that during the course of investigation, appellant Swaminath went to Vidisha in November, 1983 and sought information as regard the criminal record of Mohan Singh. After the investigation, appellant Swaminath found the allegation levelled by Sushila Bai to be untrue and accordingly submitted the final report. It is also admitted that a case under Sections 294 and 506 of the Indian Penal Code was registered against the deceased Shiv Prasad Bhatnagar at T.T. Nagar Police Station on 28-1-1984 on a report given by accused Ganpat Singh and from 29-1-1984 to 1-2-1984 appellant did not report for duty at the Police Station and remained at Vidisha. There is further no dispute that on 31-1-1984 appellant wrote (Ex. P-42) to the Officer Incharge of the Kotwali Police Station of Vidisha, Raghuveer Singh (P.W. 11) for deployment of Police force, to arrest Shiv Prasad Bhatnagar, at which on 1-2-1984 at the instruction of Raghuveer Singh, constables Man Singh and Moolchand (P.W. 5) were assigned duties to assist the appellant to arrest Shiv Prasad Bhatnagar and for his transfer to Bhopal with 303 Bore Rifle. There is further no dispute that on 1-2-1984 at about 12 P.M. appellant Swaminath went to Ram Dwara at Vidisha and informed Shiv Prasad Bhatnagar that he had come to arrest him in connection with the report given by accused Ganpat Singh at T.T. Nagar Police Station, Bhopal and after his arrest, went to the Kotwali Police Station at Vidisha at 3 P.M. along with constables Moolchand (P.W. 5) and Man Singh and made entries in the daily register at 3 P.M. It is also admitted that on the next day i.e., 2-2-1984 this appellant made entry in the daily register, took out Shiv Prasad from the lock-up and at the instance of the appellant, constable Moolchand handcuffed the deceased Shiv Prasad and gave the key of the handcuff to the appellant. On 2-2-1984 Shiv Prasad Bhatnagar died.
3. According to the prosecution, a Trust known as "Ram Dwara Trust" belonging to Ramsnehi sect exists at Vidisha and the responsibility to look after the movable and immovable property of the Trust lay with the Mahant. According to the prosecution, one Nishanshay Ram was the Mahant of that Trust and one Amolakram also used to live with him. There was dispute between Nishanshay Ram and Amolakram with regard to the office of the Mahant, which ultimately developed into serious dispute between them. Accused Mohan Singh along with other persons sided with Nishanshay Ram whereas the deceased Shiv Prasad Bhatnagar was the main supporter of Amolakram and with his help, Amolakram became the Mahant of the Ram Dwara Trust and in a public function he declared Shiv Prasad as his successor. During this period, Nishanshay Ram and Amolakram used to sell the landed property of the Trust and for that, Nishanshay Ram executed power of Attorney in favour of accused Mohan Singh. According to the prosecution, accused Mohan Singh retired from the post of Head Master of a Govt. Primary School in the year 1979. The Trust had also established a school and accused Mohan was one of the members of the Governing Body of the said school, of which Shiv Prasad Bhatnagar was the President. Accused Mohan was also the Head Master of the said school for some time, but in the year 1982 deceased Shiv Prasad not only removed him from the post of Head Master, but also removed him from the Governing Body of the school and for that, relationship between the deceased Shiv Prasad and accused Mohan became tense. Prosecution story further is that accused Ganpat Singh was also annoyed with the deceased Shiv Prasad Bhatnagar as he suspected that deceased had got dacoity committed in his house and as such he also joined accused Mohan Singh in the tirade against Shiv Prasad Bhatnagar. The disputes and differences between them were such that the police resorted to prohibitory proceedings.
4. According to the prosecution, investigation of the case instituted by Sushila Bai against accused Mohan Singh in the T.T. Nagar Police Station under Section 376 of the Indian Penal Code was entrusted on 26-11-1993 to appellant Swaminath, who was posted there as Sub-Inspector of Police. After the investigation, appellant Swaminath submitted a report on 29-12-1983 concluding that Sushila Bai had lodged a false report against Mohan Singh at the instance of deceased Shiv Prasad Bhatnagar. The City Superintendent of Police, approved the report given by the appellant and instructed for prosecuting Sushila Bai for offence under Sections 182 and 211 of the Indian Penal Code. Prosecution story further is that accused Mohan Singh and Ganpat Singh became close to appellant Swaminath, during the investigation of the rape case and accused Mohan Singh had proposed to this appellant for the marriage of his daughter. According to the prosecution, friendship between them developed to the extent that they decided to murder Shiv Prasad Bhatnagar.
5. According to the prosecution, in a criminal case instituted by accused Mohan Singh, deceased Shiv Prasad Bhatnagar was released on bail in January, 1984 and thereafter he started living in the Ram Dwara. As he was apprehending threat from Mohan Singh, on his demand, Police guard was posted from 20-1-1984 at Ram Dwara for his protection. Hence, it became difficult to make any attempt on his life. As such, accused persons hatched-up a criminal conspiracy and in the chain thereof, accused Ganpat Singh lodged a false report against Shiv Prasad on 28-1-1984 at Police Station, T.T. Nagar where this appellant Swaminath was posted as Sub-Inspector. On the basis of the said report, appellant Swaminath registered crime No. 57/84 under Sections 294 and 506B of the Indian Penal Code against Shiv Prasad and in breach of the instructions given by his superiors and without informing them, appellant Swaminath went to Vidisha on 29-1-1984, purportedly in connection with the investigation of the case lodged against Shiv Prasad Bhatnagar.
6. On 29-1-1984, on a report given by Shiv Prasad to the Kotwali Police Station that accused Mohan Singh and Ganpat Singh along with other accused persons armed with deadly weapons attempted to assault him, a case under Sections 147 and 506 of the Indian Penal Code was instituted against them and accused Mohan Singh was apprehended and taken into judicial custody.
7. Appellant, who had gone to Vidisha purportedly in connection with the case instituted against Shiv Prasad by accused Ganpat Singh went to the Kotwali Police Station at Vidisha and gave a written request to P.W. 11 Raghuveer Singh, the Inspector of Police posted there, for deployment of force to arrest Shiv Prasad Bhatnagar in connection with crime No. 57/84 registered at T.T. Nagar Police Station at Bhopal. Inspector Raghuveer Singh was requested, deputed Constables Man Singh (P.W. 20) and Moolchand (P.W. 5) to assist the appellant in arresting Shiv Prasad Bhatnagar and taking him to Bhopal. Prosecution story further is that on 1-2-1984 appellant along with the aforesaid constables went to Ram Dwara and after accused Ganpat Singh came there with 12 bore double-barrel gun, he arrested Shiv Prasad. Appellant tried to take him on foot but at his request, he was taken on a Tonga to the Kotwali Police Station at Vidisha where appellant entered the time of arrival i.e., 3 P.M. in the daily register. There Shiv Prasad was lodged in the lock-up.
8. Prosecution story further is that on 2-2-1984 appellant Swaminath made entry in the daily register, took out Shiv Prasad from the lock-up, put handcuff on his one hand and took him to Vidisha Railway Station accompanied by the two Constables Man Singh and Moolchand and accused Ganpat Singh, armed with the gun. According to the prosecution, appellant sent Shiv Prasad along with the Constables by Train but he stayed back. When the two constables did not find appellant at the Bhopal Railway Station, they took Shiv Prasad to T.T. Nagar Police Station, where they informed Inspector Subhash Chand Tiwari (P. W. 24) about the arrest of Shiv Prasad. Appellant Swaminath came to Bhopal thereafter and went to T.T. Nagar Police Station on an auto-rickshaw and instructed the constables to take Shiv Prasad back to Vidisha as he had left the Police case-diary at Kotwali Police Station there. The two constables along with the appellant and Shiv Prasad returned to Vidisha in the said auto-rickshaw.
9. Appellant Swaminath, according to the prosecution, instructed the two constables to put the handcuffs on both the hands of Shiv Prasad, as he shall be produced before the Superintendent of Police, Vidisha at which the two Constables tried to unlock the handcuff from one hand so as to put that on both the hands of Shiv Prasad but it did not open. Hence appellant along with two constables went to the Reserve Police Line and got the handcuff unlocked and then put the same in both the hands of Shiv Prasad.
10. Thereafter, according to the prosecution, appellant along with the two constables i.e., Moolchand and Man Singh and Shiv Prasad proceeded towards Bhopal in the auto-rickshaw and on the way at village Managaon, the two constables and the appellant look food in a hotel. Here the appellant asked the two constables to return and made endorsement to that effect on the duty warrant. Thereafter, they proceeded along with Shiv Prasad to Bhopal. According to the prosecution, when the two constables and the appellant and Shiv Prasad reached Bilkhariya out-post situated within the district of Bhopal, appellant Swaminath instructed the two constables to return as he had already entered in his area. At this, the two constables Man Singh and Moolchand got down from the auto-rickshaw. While the two constables got down from the auto-rickshaw, Shiv Prasad was handcuffed and its key was with the appellant and he was also carrying the 12 bore double-barrel gun belonging to accused Ganpat Singh.
11. According to the prosecution after the two constables got down in front of Police Station situated at village Bilkhariya, appellant Swaminath instructed the driver of the auto-rickshaw to proceed towards Bhopal and on the way, got down at village Kolwa pretending to urinate and shot dead Shiv Prasad from the 12 bore double-barrel gun belonging to accused Ganpat Singh. Leaving, the dead body of Shiv Prasad on the road, appellant Swaminath proceeded towards Bhopal on the said auto- rickshaw. On reaching Bhopal, appellant Swaminath went to the barrack of Head Constable Uma Shankar Dwivedi (P.W. 22), who was posted in the 25th Battallion of the State Armed Force and paid the fare to the auto-rickshaw driver by taking money from him.
Thereafter, he went to the Habibganj Railway Station by the auto- rickshaw and proceeded to Vidisha by a Passenger train in the night.
12. Amar Singh found the dead body of Shiv Prasad having handcuffs lying by the side of the road. He informed the Police Post situated at Bilkhariya on the same day at 5.45 P.M, Receiving the said information, Head Constable Rajiv Lochan (P.W. 15) and Constable Tej Singh (P.W. 2) immediately reached the place of incident and leaving Tej Singh there, Head Constable Rajiv Lochan went to the Police Station Piplani and informed In-charge Inspector Bhim Singh about the incident. Information given by Head Constable Rajiv Lochan was recorded as Dehati Nalishi by Inspector Bhim Singh and on the basis of that, a case under Section 302 of the Indian Penal Code was registered at Police Station, Piplani and information was sent to the Senior Police Officers. Immediately, thereafter the Senior Police Officers along with Dr. Hiresh Chandra (P.W. 9), the Director of Medicotegal Institute came to the place of incident and Dr. Chandra inspected the place of incident. Postmortem examination of Shiv Prasad was conducted by Dr. Hiresh Chandra on 3-2-1984 and in his opinion Shiv Prasad died of the gun-shot injuries.
13. Appellant reached Vidisha in the night between 2nd and 3rd February, 1984 and went to the residence of Superintendent of Police Shri De-Cruz, confessed his guilt and surrendered. Shri De-Cruz called Deputy Superintendent of Police Krishna Kumar Pandey (P.W. 26) telephonically and directed him to take the appellant to Bhopal along with Guard and produce him before the Superintendent of Police. As directed, Krishna Kumar Pandey took appellant Swaminath in his custody and produced him before the Superintendent of Police, Bhopal and at his direction, handed over the accused to the Officer-in-Charge of Piplani Police Station, Bhim Singh.
14. According to the prosecution, on 3-2-1984 the investigation was entrusted to D.S. Tambe (P.W. 41), an Inspector in the Criminal Investigation Department. During the course of investigation, appellant Swaminath stated that the gun and three live cartridges are with accused Ganpat Singh, hence memorandum was recorded and the Investigating Officer went to the residence of accused Mohan Singh but neither he nor Ganpat Singh was found there. On 5-2-1984 accused Ganpat Singh voluntarily appeared along with the 12 bore gun and three live cartridges in Kotwali Police Station at Vidisha which were seized. Accused Ganpat Singh was arrested on 11-2-1984. Further, on 15-2-1984on the memorandum of accused Ganpat Singh, two empty cartridges of 12 bore and three live cartridges were recovered from his house. On the memorandum of accused Mohan Singh recorded on 28-2-1984, a diary was recovered from his house. Seized gun, cartridges, empty cartridges clothes of the deceased and his spectacles were sent to Forensic Science Laboratory, Sagar. Ballistic Expert J.P. Nigam (P.W. 35) on examination of the gun found the same to be in working condition and signs of discharge in both the barrels. He also found gun shot hole as also lead in the clothes of the deceased Shiv Prasad.
15. After usual investigation, Police submitted charge- sheet against the appellant and accused Ganpat Singh and Mohan Singh. Appellant as also other accused persons denied to have committed any offence. The plea of appellant Swaminath is that on 28-1-1994 at the instruction of the Officer in-Charge of the Police Station Subhash Chand (P.W. 24) on the report of accused Ganpat Singh, he registered a case under Section 294 and 506B of the Indian Penal Code. He has further stated that the Officer Incharge entrusted the said case to him for investigation and in course thereof, he arrested Shiv Prasad on 1-2-1984 and detained him in the lock-up situated in the Kotwali Police Station at Vidisha. According to him, on 2-2-1984 Shiv Prasad was taken out from the lock-up and was given in custody of the two Constables Moolchand and Man Singh and they without his permission, went away with him and he made separate entry in the daily register in the Kotwali Police Station at Vidisha in this regard but the same has been torn by the Police Officer. According to him, thereafter at 9 A.M. he boarded the Train from Vidisha to go to Bhopal and when he reached T.T. Nagar Police Station, Asset. Sub-Inspector of Police Subedar Singh asked him to go to the Court directly. According to his defence, he waited in the Court till 5 P.M. and thereafter went to Bhadbhada, took loan of Rs. 50/- from Head Constable Uma Shankar Dwivedi (P.W. 22), boarded the Train at Habibganj Railway Station for Vidisha and as the Train was running fate, he reached there at 5 A.M. and informed the Superintendent of Police that the two Constables Moolchand and Man Singh had not produced Shiv Prasad before the Court at Bhopal.
16. Prosecution in support of its case had altogether examined 41 witnesses. One defence witness has also been examined. The Trial Court on consideration of the material led before it, held that the death of Shiv Prasad was homicidal in nature and appellant conspired with two other persons and murdered Shiv Prasad. The Trial Court has arrived at this conclusion relying on the circumstantial evidence.
17. We have heard Shri Ashok Tiwari for the appellant. State is represented by Shri S.K. Gangrade, panel lawyer. In fairness to Shri Tiwari, he concedes that the finding recorded by the Trial Court that the death of Shiv Prasad was homicidal in nature is based on the evidence on record and he can not legitimately call for its reversal in this appeal. We have perused the record. P.W. 9 Dr. Hiresh Chandra, who had conducted the post-mortem examination has found following injuries on the body of the deceased :--
(1) Gun shot on the left shoulder region 7 cm. below the acromion process. Size circular 1.8 cm. in diameter with abraded upper quadrant and inverted margins, lacerated. The abrading is also extending to the lateral aspect below and slightly lateral, about 8 mm. below is a circular abraded area size 2.2 cm. in diameter with another bruising and 12 cm. below the acromion in the same line another abraded and bruised area size 2 x 0.5 cms. The upper wound was 145 cm. from the heel.
(2) Gun shot wound on the left back at the level of 12th rib situated 9 cms. from mid line and 112 cms. from the heel. Size 3 cm. in diameter slightly oval with punctured blackening pin point on upper aspect 2 cms. in diameter. The character was inverted, lacerated margins with abrasion in the upper part related to tatooing in the upper region indicated.
(3) Size 13 cm. below the acromion exist wound lacerated abraded margins oval slightly size 1.2 cm. in diameter with tearing effect in margin. Fracture of the numerous bone related and situated 139 cms. above the heel.
(4) One healed scar (abdominal operation scar) about 10 cms. above the umblicus para medial.
(5) The para-vertible strip of muscles in the cervical and upper thorasic region echymosed. The track of the wound from the back was slightly upward medially and forward. On the way it has lacerated the spleen, kidney pancreas, stomach and some pallets have travelled in the lungs cavity also. The wads have been recovered. The chest wall in and the back area on 9th, 10th, 11th and 12th of ribs was echymosed.
(6) Entry wound and the exit wound in the shoulder have grazed the sterno-clavicular joint involving the whole track as echymosed and contused. Direction of the track was from the left to the right slightly downward and coronal plain."
In the opinion of the doctor, Shiv Prasad died due to shock on account of bleeding as a result of gun shot injury.
18. We do not find any reason to doubt the testimony of P.W. 9 Dr. Hiresh Chandra and hence in agreement with the Trial Court, we hold that the death of Shiv Prasad was homicidal in nature.
19. It is relevant here to state that conviction of the appellant is based on the circumstantial evidence and Shri Tiwari, learned counsel for the appellant contends that the circumstance relied on by the prosecution do not point towards the guilt of the appellant. Shri S.K. Gangrade, panel lawyer submits that the circumstances brought on record and proved, unmistakably point towards the guilt of the appellant and the Trial Court did not err in convicting the appellant, relying on the circumstantial evidence.
20. It is well settled that conviction can be rested on the circumstantial evidence, when each of the circumstance proved has a definite tendency pointing towards the guilt of the accused and each of the circumstance by itself may not be conclusive but the cumulative effect of the proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally point towards the guilt of the accused. It is often said that the witnesses may lie, circumstances will not. But at the same time it has to be borne in mind that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. To put it differently, the circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. Bearing in mind the aforesaid legal principle, we proceed to examine the facts of the present case.
21. P.W. 24 Inspector Subhash Chandra, the Officer Incharge of T.T. Nagar Police Station had stated in his evidence that on the information given by accused Ganpat Singh on 28-1-1984, appellant Swaminath had registered a case against Shiv Prasad under Section 294 and 506B (Part II) of the Indian Penal Code. Entry No. 3434 dated 28-1-1984 of the daily register also shows that appellant had left the Police Station at 10.52 P.M. to arrest Shiv Prasad. There is controversy as to whether appellant left the Police Station after obtaining the permission from the Officer Incharge of the Police Station. In our opinion, same is inconsequential in view of the plea of the appellant himself in his examination under Section 313 of the Code of Criminal Procedure Code itself that he had left the Police Station in connection with investigation of the case instituted against Shiv Prasad.
22. P.W. 11 Raghuveer Singh, Inspector and Officer Incharge of the Kotwali Police Station, Vidisha has stated in his evidence that appellant made written request (Ex. P-49) on 31-1-1984 to make available police force to render assistance in apprehending Shiv Prasad. This is further fortified from the evidence of Head Constable P.W. 19 Haricharan. Raghuveer Singh had further stated in his evidence that at the request of the appellant, Constables Moolchand (P.W. 5) and Man Singh were assigned duty on 1-2-19S4 with 303 bore rifles. In fact, the appellant in his examination under Section 313 of the Code of Criminal Procedure has accepted the same.
23. P.W. 5 Moolchand had stated in his evidence that since December, 1983 he was deputed at Ram Dwara along with Head Constable Haricharan and on 1-2-1984 at the request of appellant, Head Constable Hari Charan had assigned the duty to arrest Shiv Prasad along with Constable Man Singh. He has further stated in his evidence that when this appellant Swaminath came to Ram Dwara to arrest Shiv Prasad, he was armed with a 12 bore double-barrel gun. P.W. 3 Rajaram, P.W. 4 Satya Prakash and P.W. 7 Tulsiram have also stated in their evidence that when this appellant came to arrest Shiv Prasad, he was armed with a double-barrel gun. It is relevant here to state that in his examination under Section 313 of the Code of Criminal Procedure, appellant had admitted that he had gone to Ram Dwara to arrest Shiv Prasad but has denied that at that time he was armed with a double-barrel gun. However, from the evidence of P.W. 5 Moolchand, the constable who was assigned duty to assist appellant Swaminath in arresting Shiv Prasad as also the evidence of P.W. 3 Rajaram, P.W. 4 Satya Prakash and P.W. 7 Tulsiram, we have no manner of doubt that appellant went to Ram Dwara to arrest Shiv Prasad and at that time, he was armed with a 12 bore double-barrel gun.
24. P.W. 29 Head Constable Parmanand had stated in his evidence that on 1-2-1984 at about 3 P.M. appellant Swaminath, Constables Moolchand and Man Singh came to Kotwali Police Station at Vidisha and at that time, Shiv Prasad was in their custody. Appellant had made entry in the daily register (Ex. P-47). He had further stated in his evidence that after this appellant kept Shiv Prasad in the Police Station lock-up, he made entry in the daily register. P.W. 29 Parmanand has not been cross-examined on this issue and in fact in his examination under Section 313 of the Code of Criminal Procedure, appellant had admitted the aforesaid fact. From what has been stated above, it is evident that appellant arrested Shiv Prasad, took him to the Kotwali Police Station along with Constables Moolchand (P.W. 5) and Man Singh and lodged Shiv Prasad in the Police Station lock-up.
25. P.W. 5 Constable Moolchand has stated in his evidence that on 2-2-1984 appellant made entry of departure in the daily register and got Shiv Prasad out from the Police lock-up. He has further stated that on the instructions of the appellant, he handcuffed Shiv Prasad and handed over its key to the appellant. In fact, in his examination under Section 313 of the Code of Criminal Procedure, this appellant had admitted what was stated by P.W. 5 Moolchand in his evidence that he made entry in the daily register, took out Shiv Prasad from the lock-up and he was handcuffed by P.W. 5 Moolchand and its key was given to him. It is relevant here to stale that duty warrant (Ex. P-12) clearly shows that P.W. 5 Constable Moolchand was assigned the duty. According to the appellant, this duty warrant (Ex. P-12) is ante-dated. However, P.W. 29 Assistant Sub-Inspector of Police Parmanand had stated in his evidence that in the morning of 2-2-1984, while he was on duty at the Kotwali Police Station as Head Constable he had found the entry of departure in the daily register of the appellant Swaminath. Writing of departure in the daily register has been compared with the specimen writing of the appellant and handwriting expert P.W 31 J.B. Sharma has clearly stated that entry in relation to' the departure in the daily register was in the handwriting of the appellant. From this, the facts which emerge are that the deceased was taken out from the Police lock-up at Vidisha and appellant along with Constables Moolchand (P.W. 5) and Man Singh proceeded towards Bhopal.
26. It is relevant here to state that P.W. 5 Constable Moolchand had stated in his evidence that Shiv Prasad, while in their custody was taken to the Vidisha Railway Station by appellant and Constable Man Singh was also there. He has further stated in his evidence that after appellant got him, Shiv Prasad and Constable Man Singh scaled in the train, appellant proceeded towards the Guard's coach and when they got down at Bhopal Railway Station, appellant was not seen there. According to this witness, he waited at the Bhopal Railway Station for about 1 1/2 hours but the appellant did not turn up and hence he along with Constable Man Singh and Shiv Prasad went to the T.T. Nagar Police Station and the Head Constable at T.T. Nagar Police Station having declined to make entry of their arrival, they waited at the Police Station along with Shiv Prasad. There is nothing in the cross-examination of this witness which could give rise about his veracity. From the evidence referred to above, it has been proved beyond all reasonable doubt that appellant sent Shiv Prasad along with Constables Moolchand and Man Singh to Bhopal.
27. P.W. 5 Moolchand had further stated in his evidence that after 45 minutes when he reached the Police Station T.T. Nagar, appellant sent a message that Shiv Prasad be brought to the Court for production and when he along with Man Singh and Shiv Prasad came out from the Police Station, appellant got them seated in an auto-rickshaw and he also accompanied them. According to this witness, when the petrol was filled in the auto-rickshaw at a petrol pump, appellant disclosed that he had left the case-diary at Vidisha and instructed the auto-rickshaw driver to proceed towards Vidisha. There is nothing on the record which in anyway creates doubt in the evidence of P.W. 5 Moolchand and from his evidence it is evident that Shiv Prasad was in the custody of the appellant and Constables Moolchand and Man Singh while he came out from the T.T. Nagar Police Station and they proceeded towards Vidisha on an auto-rickshaw.
28. Moolchand (P.W. 5) had further stated in his evidence that Shiv Prasad was taken to Vidisha in the auto-rickshaw by appellant Swaminath and he as also Constable Man Singh accompanied them. According to him, appellant went to the Vidisha Police Station, kept the auto-rickshaw outside the Police Station and on return, disclosed that he shall be produced before the Vidisha Court. He has further stated in his evidence that thereafter appellant stated that Shiv Prasad had to be produced before the Superintendent of Police of Vidisha and hence he directed to put the handcuffs in both of his hands. According to him, when this witness tried to unlock the handcuff which was in one hand, he did not succeed and although Shiv Prasad requested that his both hands may not be handcuffed, appellant declined his request and directed this witness to take him to the police lines. He has further stated in his evidence that at the Vidisha Police lines, the defective handcuff was unlocked and it was put on both his hands.
29. P.W. 36 Head Constable Ajab Singh, who was posted as Duty Clerk on 2-2-1984 at the Police Lines Vidisha had also stated in his evidence that appellant along with Constables Man Singh and Moolchand and Shiv Prasad came on an auto-rickshaw to the Police Line and disclosed his identity as Sub-Inspector of Police posted at T.T. Nagar Police Station in the town of Bhopal and requested him to change the handcuffs of Shiv Prasad. According to this witness, he asked the appellant to take the permission of the Reserve Inspector at which, appellant directed and asked him to open the handcuff and at his request, he put oil on the handcuff and it got opened. Thereafter, appellant put the handcuffs on both the hands of Shiv Prasad. There is nothing in the cross-examination of this witness which in any way discredits his evidence. From their evidence it is evident that Shiv Prasad was taken to Vidisha and thereafter to the Vidisha Police Lines and the appellant handcuffed him at the Police Lines.
30. P.W. 7 Tulsiram had also supported the case of the prosecution on this question and had stated that he had seen appellant along with two Constables and Shiv Prasad, who had handcuff in one hand going on a Tempo towards the Police Lines. P.W. 7 Tulsiram has although admitted that he was the disciple of Shiv Prasad but on this ground alone, we are not prepared to discard his evidence.
31. According to the prosecution, on 2-2-1984 while Shiv Prasad was arrested, appellant was armed with a 12 bore double- barrel gun, which fact is established from the evidence of P. W. 3 Rajaram, P. W. 4 Satya Prakash, P. W. 5 Moolchand and P. W. 7 Tulsiram. P. W. 5 Moolchand has further stated in his evidence that the appellant was armed with 12 bore double-barrel gun when he went to Vidisha Police Lines to get the handcuff unlocked. P.W. 36 Ajab Singh has also stated in his evidence that while the appellant came on an auto-rickshaw to the Police Lines and while leaving the place, he was armed with a double-barrel gun. Evidence of P.W. 36 Ajab Singh has remained unchallenged and from that it is evident that while leaving the Police Lines, appellant was armed with a 12 bore double-barrel gun. According lo P.W. 5 Moolchand, after the appellant left Police Lines at Vidisha along with Shiv Prasad, he first took the auto-rickshaw to the office of Superintendent of Police and thereafter to his bungalow, but according to his evidence, appellant declined to meet the Superintendent of Police in the absence of Fee-cap and hence directed the auto-rickshaw driver to proceed towards Bhopal. This witness has further stated that when the auto-rickshaw reached near the hospital, he stated that Shiv Prasad shall be produced before the Court at Bhopal and thereafter they proceeded towards Bhopal. This witness had further stated that when they reached village Mana, situated on the highway between Vidisha and Bhopal, he, constable Man Singh, auto-rickshaw driver and appellant took meals and Shiv Prasad took lea. P.W. 5 Moolchand had further staled in his evidence that after taking meals at village Mana appellant instructed him and Constable Man Singh to return to Vidisha but it was declined by him. Appellant staled that his area is nearby and he will produce Shiv Prasad in the Court at Bhopal and insisted them to return to Vidisha. Thereafter, according to this witness, appellant endorsed in the duty warrant (Ex. P-12) that Constables Man Singh and Moolchand should return. P.W. 5 Moolchand had further stated in his evidence that the appellant dropped him and constable Man Singh at Bilkheriya Police Post which is at distance of 4 kms. from village Mana on the Vidisha Bhopal Highway.
32. P.W. 2 Tej Singh and P.W. 15 Constable and Head Constable posted at Bilkheriya Police Post had supported the evidence of P.W. 5 Moolchand in this regard. P.W. 5 Moolchand had also stated in his evidence that while he and Constable Man Singh got down at Bilkheriya Police Post, appellant was sitting in the auto-rickshaw along with Shiv Prasad, who had handcuffs on both the hands and its key and one 12 bore double-barrel gun was with the appellant. P.W. 2 Constable Tej Singh P.W. 15 Head Constable Rajiv Lochan have also supported the evidence of P.W. 5 on this question. Thus, from the evidence of P.W. 2Tej Singh, P.W. 5 Moolchand and P.W. 15 Rajiv Lochan, it is evident that appellant along with Shiv Prasad came to Bilkheriya Police Outpost and at that time, Shiv Prasad was in handcuffs and the appellant was carrying a 12 bore double-barrel gun. From their evidence, it is further clear that Constables P.W. 5 Moolchand and Man Singh were dropped at Bilkheriya Police Post and appellant proceeded along with Shiv Prasad in the auto-rickshaw towards Bhopal. Moolchand (P.W. 5) has stated in his evidence that a Bilkheriya he along with Constable Man Singh took a truck and came to Bhopal and from their by train came to Vidisha at about 7.30 P.M. P.W. 2 Constable Tej Singh and P.W. 15 Head Constable Rajiv Lochan, who were posted at Bilkheriya Outpost had Mated that the two Constables Moolchand and Man Singh left for Vidisha on a truck. According to P.W. 5 after he returned to Vidisha, entry was made in the daily register. This fact finds support from the evidence of Head Constable Parmanand (P.W. 29) and Constable Mohkam Singh (P.W. 34), who had stated that on the direction of Parmanand, he had made entry in the daily register about the arrival of Moolchand and Man Singh.
33. From the evidence of aforesaid witnesses, it is crystal clear that after the appellant left Police Station Bilkheriya along with Shiv Prasad, Constables Moolchand and Man Singh returned to Vidisha. This is further fortified from the duty warrant (Ex. P-12), which contains the endorsement "WAPAS KIYA JATA HAI" and which also bears the signature of the appellant. P.W. 31 J.B. Sharma, the handwriting expert has clearly opined that the endorsement in the duty warrant (Ex. P- 12) and signature thereon belong to the appellant.
34. P.W. 2 Constable Tej Singh and Head Constable P.W. 15 Rajiv Lochan have stated in their evidence that at about 5.45 P.M. on 2-2-19S4 one Agar Singh, a resident of village Adampur gave information to the Bilkheriya Out-post that a dead body in handcuffs was lying at village Koluwa by the side of the road. They have further stated in their evidence that when they reached there, they found that the person lying dead was the same who left Bilkheriya Out-post 30 minutes before along with the appellant. They have further stated that gun-shot injuries were found on the body of the deceased and blood was found there. Thereafter, according to these witnesses, P.W. 2 Tej Singh was left at the site and P.W. 15 Head Constable Rajiv Lochan informed the Simirka Police Station about this incident and the information given by Rajiv Lochan was recorded as Dehali Nalishi (Ex. P-35) by the Inspector at 6 P.M.
35. The Superintendent of Police Bhopal requested P.W. 9 Dr. Hiresh Chandra at 7 P.M. on 2-2-1984 to make inspection of the place of occurrence and according to his evidence, he reached there at 8.50 P.M. According to this witness, he saw 12 bore gun injuries on the body of the deceased Shiv Prasad. P.W. 4 had also stated that Shiv Prasad was lying dead in handcuffs. From the evidence aforesaid, it is clear that 30 minutes after the appellant left in the company of Shiv Prasad in handcuffs his dead-body was found in handcuffs by the side of the road near village Koluwa. It is relevant here to state that the 12 bore double-barrel gun, the weapon used in the crime was seized during the course of investigation and was sent to the Forensic Science Laboratory, Sagar for examination and the same was examined by Ballistic Expert P.W. 35 J.P. Nigam, who had stated that the gun was in working condition and had also found signs of discharge in the barrel.
36. From what has been found above, the following circumstances emerge:--
(A) On the information of accused Ganpat, a case under Sections 294 and 506B of the Indian Penal Code was registered by appellant Swaminath at the T.T. Nagar Police Station and he went to Vidisha on 29-1-1984 for investigation of the case, (B) On 31-1-1984 appellant gave application to the Inspector of Kotwali Police Station at Vidisha to provide Police force to arrest the deceased Shiv Prasad in connection with Crime No. 57/84, registered at T.T. Nagar Police Station, (C) In the light of the application given by the appellant, on 1-2-1984 Constables Man Singh and Moolchand were assigned duty to assist appellant, (D) On 1-2-1984 appellant armed with 12 bore double-barrel gun along with the Constables went to Ram Dwara and arrested deceased Shiv Prasad who was then taken to the Kotwali Police Station, Vidisha, (E) On 2-2-1984 the deceased was taken out from the lock-up of Vidisha Police Station and handcuff was put in one of his hands and thereafter the deceased along with the appellant and Constable Moolchand and Man Singh went to Vidisha Railway Station, (F) Deceased Shiv Prasad and Constables Man Singh and Moolchand reached Bhopal but having not found the appellant there, went to the T.T. Nagar Police Station. Appellant Swaminath reached T.T. Nagar Police Station thereafter and informed the two Constables that he had left the Police case-diary at Kotwali Police Station at Vidisha. He directed the two Constables to lake Shiv Prasad to Vidisha and the appellant accompanied them, (G) After reaching Vidisha, handcuffs were put on both the hands of the deceased Shiv Prasad. Appellant along with the two Constables Man Singh and Moolchand left Vidisha for Bhopal on an auto-rickshaw and Shiv Prasad was in handcuff at that time. Further, appellant was armed with a 12 bore double-barrel gun. Appellant as also two Constables Moolchand and Man Singh took meals in a line hotel at village Mana, (H) At village Mana, appellant released the two Constables and endorsed the said fact on the duty warrant, (I) Appellant along with the deceased and the two Police Constables came upto Bilkheriya Outpost where the two Constables got down and appellant along with Shiv Prasad proceeded towards Bhopal in an auto-rickshaw and at that time, he was armed with a 12 bore double-barrel gun and deceased was in handcuffs.
(J) Half-an-hour after the appellant and deceased left Bilkheriya Out-post, the dead body of Shiv Prasad was found lying by the said of the road having got shot injuries, (K) The double-barrel gun recovered was in a working condition and had signs of discharge.
37. Deceased was in the custody of the appellant and he has not come out with any explanation as to how he died. In our opinion, each of the circumstances proved definitely point towards the guilt of the appellant and the chain is absolutely complete and the same unequivocally point to the guilt of the appellant and excludes every other hypothesis. This being the position, in agreement with the Trial Court, we hold that the prosecution has proved its case beyond all reasonable doubt.
38. As the other two accused persons are already dead, we consider it unnecessary to consider the evidence in regard to the conspiracy in commission of the crime.
39. In the result, we do not find any merit in the appeal and it is dismissed accordingly.