Full Judgment Text
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CASE NO.:
Appeal (crl.) 106 of 2002
PETITIONER:
Sahadevan @ Sagadevan
RESPONDENT:
State rep. by Inspector of Police, Chennai
DATE OF JUDGMENT: 01/11/2002
BENCH:
N.Santosh Hegde & K.G.Balakrishnan.
JUDGMENT:
J U D G M E N T
(With Crl.A.No.105/2002)
SANTOSH HEGDE,J.
The High Court of Judicature at Madras, by its
judgment dated 11th June, 2001 dismissed the Criminal
Appeal No.467 of 1992 filed by the two appellants who have
filed the above criminal appeals before us, whereby the High
Court confirmed the judgment of the Sessions Judge,
Chengalpattu made in S.C. No.17 of 1992, convicting and
sentencing the appellants herein for various offences
charged against them.
The two appellants before us and three others were
charged for various offences under Sections 330, 348 and
302 read with Sections 34 and 201 IPC for having
committed the murder of one Vadivelu on 5.3.1985. The
learned Sessions Judge while acquitting three of the accused,
convicted the appellants to undergo rigorous imprisonment
for a period of five years for an offence punishable under
Section 330 IPC. He also convicted these appellants to
undergo rigorous imprisonment for three years under
Section 348 IPC and to undergo 7 years imprisonment for an
offence punishable under Section 201 IPC and further
convicted these appellants to undergo imprisonment for life
for an offence punishable under Section 302 read with
Section 34 IPC and directed the sentences to be undergone
concurrently.
The brief facts necessary for the disposal of these
appeals are as follows :
A Crime No. 37/1985 was registered in the
Wallajahbad Police Station in regard to the murder of a lady
and her son in which case the deceased Vadivelu in these
appeals and husband of the deceased lady, Ekambaram (PW-
8) and one Loganathan were the suspects and the police
were on the look out to arrest these three persons. According
to the prosecution case, PW-3 and PW-4 who were the
Constables of the Wallajahbad Police Station along with
another Constable by name Ponnuswamy were entrusted
with the responsibility of locating and producing the
deceased Vadivelu for the purpose of investigation in the
said case. The prosecution alleges that after considerable
effort they with the help of Sivaprakasam who was the
brother-in-law of the deceased apprehended the said
Vadivelu at Chennai and brought him to the Police Station at
Wallajahbad on 5.3.1985 and produced him before the A-2
who was in-charge of the police station at Wallajabhad. The
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said A-2 is an appellant before us. It is the case of the
prosecution that A-1 who is another appellant before us, was
also a Sub-Inspector of Police in the said police station, and
was present in the said station at that time. It is also the case
of the prosecution that PW-8 Ekambaram who was another
suspect in the double murder case, referred to herein above,
was already arrested by the said police and was in the lock
up of the said station, though his arrest was not officially
recorded. The prosecution case further is that during
Vadivelu’s custody in the Wallajahbad Police Station, A-1
and A-2 assaulted the deceased by using a Ruler which was
noticed by PW-8. The prosecution then also states that
Sivaprakasam who had accompanied Vadivelu with PWs 3
and 4 when he was brought from Chennai also noticed the
beating of Vadivelu. The prosecution then states that this
Sivaprakasam narrated the incident to PW-1 the wife of
Vadivelu, as also to his brother PW-6. According to the
evidence of PWs 3, 4 and 8, A-1 and A-2 thereafter took the
deceased in a jeep and was produced before PW-25 who was
investigating the double murder case, who in his evidence
before the Court stated that after questioning the said
deceased he asked A-1 and A-2 to release the deceased. The
prosecution further states on 5.3.1985 that A-1 and A-2 went
in a police jeep to the residence of PW-1 at about 5 p.m. and
asked her to hand over certain account books maintained by
Vadivelu. This was done in the presence of PW-5. It is also
stated that PW-5, while coming out that evening with the
police towards the jeep, saw his father sitting in the jeep,
who was then driven away in the jeep by accused A-1 and
A-2. The further case of the prosecution is that in the early
morning at about 2 a.m. on 6.3.1985 A-1 again went to the
residence of PW-1 and asked for a photograph of Vadivelu.
During that visit, it is stated that A-1 told PW-1 that her
husband has escaped from there, when he was permitted to
sleep in the Verandah of the police station. This visit of the
accused was also noticed by PW-14 who is a retired School
Master and the landlord of PW-1 as also PW-1’s son PW-5.
It is the case of the prosecution thereafter, that since
Vadivelu did not come back to the house and when
Sivaprakasam went to the police station and enquired about
the whereabouts of Vadivelu, he was told that he had
escaped from custody. A doubt arose in the mind of said
Sivaprakasam as to the safety of Vadivelu and, hence, he
discussed the matter with his brother PW-6 and also PW-1,
and suspected that it is possible that Vadivelu must have
been done away with by the concerned police. Therefore,
after deliberation, they filed a writ of habeas corpus before
the High Court in Chennai, wherein the High Court called
upon the respondent-police which included the appellants
herein to file their return. It is the case of the prosecution
that in the return filed by the respondents in the said habeas
corpus writ petition they took the stand that Vadivelu had
escaped from the police custody and was absconding. Since
after repeated opportunity the deceased was not traced by
the police inspite of the directions issued to them by the
Court, the High Court by its order dated 7.12.1988 directed
the Director General of Police, Madras to issue instructions
to concerned C.B.C.I.D. to register a case on the missing of
Vadivelu from 5.3.1985. The said order also noticed that
admittedly the said Vadivelu was taken into custody by the
police and, therefore, the above direction was given to the
Director General of Police. It is consequent to this direction
issued by the High Court, that PW-26 registered a crime
No.6/89 and initiated the investigation into the missing case
of Vadivelu and PW-30 thereafter registered a case under
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Section 302 IPC after seeking permission from the superior
officer, and filed a charge-sheet against the above said
accused persons on 22.11.1991.
At this stage, it is necessary to note that from the
prosecution case, it is to be seen that on the morning of
6.3.1985 a dead body with a crushed head was found within
the jurisdiction of Enathur which was noticed by PW-16
Panneerselvam who was then working as a Village
Administrative Officer of Enathur, who lodged a complaint
in regard to the same which was registered as Crime
No.141/85 for an offence under Section 304A IPC, the
investigation of which was taken up by PW-25 and later on
the said case closed on 10.10.1986 as "not traceable". It is
the prosecution case in these proceedings that this dead body
was that of Vadivelu which was disposed of by the
appellants to conceal the actual cause of death, after
disfiguring his head.
The learned Sessions Judge on considering the
material on record came to the conclusion that even though
the prosecution case was based on circumstantial evidence,
the prosecution was able to prove these circumstances
beyond all reasonable doubt to establish the guilt of the
appellants, and relying on such proved circumstances,
convicted the appellants as stated above. The circumstances
relied on by the learned Sessions Judge are follows :-
(1) PWs. 3 and 4 took Vadivelu into custody and
handed him over to the 2nd accused in the
Wallajahbad Police Station on 5.3.1985 morning.
(2) PW-8 saw the accused 1 and 2 beating the
deceased on 5.3.1985 in Wallajahbad Police
Station.
(3) PW-5, the son of the deceased saw Vadivelu in the
evening of 5.3.1985 in the jeep in which the
accused 1 and 2 came to the house of Vadivelu to
take the account books from the house. Thereafter,
the accused left along with the deceased.
(4) A-1 came to the house of PW-1 at about 2 a.m. on
6.3.1985 and informed her that Vadivelu had
escaped from their custody and offered to pay
Rs.20/- to PW-1 towards the expenses.
(5) The recovery of the body of Vadivelu with head
injuries.
(6) The tampering of records viz., Ex.P-4 log book of
the vehicle; P-15 case diary and secreting of the
negatives (photographs of Vadivelu) from PW-18.
(7) Failure on the part of the accused to give any
explanation or information so as to the release of
Vadivelu from the police custody.
On appeal, the High Court after taking note of the law
in regard to basing conviction on circumstantial evidence, as
enunciated by this Court, agreed with the trial court that the
prosecution has established the guilt of the accused. It,
however, did not accept the circumstances relied on by the
trial court, viz. the identification of the body of Vadivelu.
Inspite of the same, it held from the rest of the
circumstances that the prosecution has established its case
against the appellants and, hence, it concurred with the trial
court.
In these appeals, the learned counsel appearing for the
appellants very seriously contended that most of the
circumstances relied upon by the courts below have not been
proved beyond reasonable doubt. They argued that in the
absence of any material to establish that the body that was
found in Crime No.141/85 was that of the deceased
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Vadivelu, it would be hazardous to presume that the
deceased Vadivelu had died because of the alleged beating
given to him by the appellants i.e. assuming that such an
incident did take place in the Police Station on 5.3.1985. The
argument of the learned counsel in this regard is that in cases
where the corpus-delicti is not found, there should be some
acceptable evidence produced by the prosecution to prove
that the death of the missing person was in fact caused, and
the accused persons are directly responsible for causing such
death, and that the alleged injury caused to the missing
person was sufficient in the normal course to cause such
death. In the absence of such proof as to the actions of the
accused persons connecting them with such assault or injury,
it is not possible to convict the appellants of an offence
punishable under Section 302. Elaborating this contention,
the learned counsel argued that there is absolutely no
evidence whatsoever to hold, that by the so called attack on
Vadivelu in the police station he had died or that the injury
caused, if any, on Vadivelu by these appellants were
sufficient in the normal course to cause a death. They
contend that even according to the evidence of PW-8, the
deceased was alive when he was taken to the police station,
which is supported by the evidence of PWs 25, 1 and 5, to
show that Vadivelu was alive till 5 O’clock in the evening of
5.3.1985. Therefore, it is their contention that the deceased
could not have died because of the beating suffered by him
in the police station. The learned counsel also argued in the
absence of corpus-delicti, the prosecution should establish
by link evidence that Vadivelu had actually died because of
the acts of the appellant without which there can be no
conviction for an offence under Section 302 IPC.
They further contend that the evidence of the
prosecution witnesses cannot be accepted for various
reasons, for example, so far as PW-8 is concerned, he was
an accused in a crime wherein the allegations against him
was that he along with Vadivelu and Loganathan were
responsible for the murder of PW-8’s wife and son, which
was investigated by the police and, therefore, he had every
reason to implicate the police, including these appellants
falsely. They also contend that the evidence of PW-8 is not
corroborated in any manner by any other evidence led by the
prosecution and, therefore, it is not safe to rely on his
evidence. They contend that the evidences of PWs 1 and 5
even if it is to be accepted as being true, would not further
the prosecution case, in any manner, because their evidence
only shows that Vadivelu was seen in the company of the
appellants on the evening of 5.3.1985 and A-1 had visited
the house of PW-1 in the mid night between 5th and 6th
March, 1985. This evidence would not, in any manner,
support the prosecution case to base a conviction on the
appellants for having murdered Vadivelu.
Learned counsel appearing for the appellants further
contended from the prosecution case itself that it is clear that
the deceased was released by the police after interrogation
and he had gone away, therefore, there could be no reason
why these appellants should be held guilty for the murder of
Vadivelu, more so when the factum of death of Vadivelu
itself is highly doubtful. The learned counsel very strongly
supported the finding of the High Court that the
identification of the body found in Crime No.141/85 has not
been proved to be that of the deceased Vadivelu. In this
regard, they pointed out that the wife of the deceased had
not mentioned the identification mark on the body of the
deceased in the first instance, when her statement was
recorded by the police.
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In the above background, we will now discuss the
various circumstances taken into consideration by the courts
below, to come to the conclusion that the appellants are
guilty of the offence charged against them.
So far as the circumstance which pertains to the
production of Vadivelu before PW-2 in Wallajahbad Police
Station is concerned, there is evidence of PWs. 3,4 and 8
which, in our opinion, is practically admitted by the defence.
It is not in dispute that Vadivelu was one of the suspects in
Crime No.141/85 and the police of Wallajahbad Police
Station were on the look out for him. It is not in dispute, as
spoken to by PW-3 that he along with PW-4 and another
constable was deputed to trace the said Vadivelu on
28.2.1988. It is also clear from the evidence of PWs 3 and 4
that they sought help of Sivaprakasam, the brother-in-law of
the deceased to identify and trace the said Vadivelu since
PWs 3 and 4 did not know Vadivelu personally. From the
evidence of PW-3, it is to be seen that these persons i.e. PWs
3, 4, Sivaprakasam and another constable searched for
Vadivelu in Kancheepuram, Gudiatham, Keelapatti, Ambur,
Vyasarpadi and finally traced him at Chennai and brought
him to the police station at Wallajahbad on 5.3.1985
morning. This was also spoken to, by PW-8, who according
to his evidence was already in police custody on that day in
Wallajahbad Police Station. This evidence of PWs 3 and 4
is not challenged in the cross-examination. As a matter of
fact, as was observed by the two courts below, even in their
statement made under Section 313 Cr.P.C., the appellants
have not disputed the fact that Vadivelu was produced in the
police station. A-1, of course, in his statement had stated that
he was produced before A-2, meaning thereby, he was not
produced before him. But the actual factum of production of
Vadivelu in the police station on 5.3.1985 is not disputed. In
these circumstances, it is clear that Vadivelu was in the
police station on 5.3.1985. It is seen from the evidence of
PW-8 that he saw A-1 and A-2 assaulting Vadivelu with a
Ruler. In regard to this part of the prosecution case, the
defence contends that there is no material to show that this
witness was in fact in police custody on 5.3.1985 because
the official records of the police station shows his arrest has
been made only on 9.3.1985. But in the cross-examination
PW-8 in specific terms has stated that he was arrested before
Vadivelu was brought to the police station and kept in the
police station illegally and he was in such custody for about
20 days before he was produced before the Magistrate. The
two courts below, in our opinion, rightly rejected the
defence case that PW-8 was arrested only on 9.3.1985 and,
therefore, we have no hesitation in accepting the fact that
PW-8’s evidence as to the beating of Vadivelu on 5.3.1985
in the police station at Wallajahbad. The same cannot be
rejected merely on a suggestion made by the defence. It is
also clear from the evidence of PW-25, that A-2 produced
Vadivelu before him on 5.3.1985 sometime in the afternoon.
This factor also goes to show that A-2, even according to
PW-25 was with Vadivelu on 5.3.1985 in the afternoon.
From the evidence of PWs 1 and 5, it is clear that on the
evening of 5.3.1985 Vadivelu was in the company of A-1
and A-2. Therefore, it is clear that the prosecution has
established beyond all reasonable doubts that Vadivelu was
in the company of A-1 and A-2, atleast till about 5 p.m. in
the evening of 5.3.1985. On the basis of the above evidence,
it can be safely concluded that the first circumstance alleged
against the accused person stands proved by the evidence of
the prosecution.
In regard to the second circumstance which speaks of
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the factum of assault of Vadivelu by A-1 and A-2, the same
is sought to be established by the prosecution from the
evidence of PW-8. We have already held that the
prosecution case that PW-8 was arrested much earlier than
9.3.1985 and was in the Wallajahbad Police Station on
5.3.1985 is acceptable. Therefore, the defence case that
Vadivelu was arrested only on 9.3.1985 has to be rejected.
In such circumstances and having perused his evidence and
the line of cross-examination, we are satisfied that the
evidence of PW-8 as accepted by the two courts below must
be true and, therefore, we find no reason to differ from the
findings of two courts below and hold that the prosecution
has established the fact that PW-8 was witnessed the assault
of Vadivelu by the appellants on 5.3.1985, when he was
brought to the Wallajahbad Police Station.
We have already noticed from the evidence of PWs. 1
and 5, that A-1 and A-2 came to the house of PW-1 on
5.3.1985 at about 5 p.m. and asked for the accounts books of
Vadivelu. It is also seen at that time PW-5 noticed Vadivelu
sitting in the police jeep and before he could call his mother
PW-1, accused drove away with Vadivelu. From this
evidence, circumstance No.3 stands proved.
From the evidence of PW-14 and PWs 1 and 5, it is
clear that A-1 did go to the house of PW-1 in the early
morning at 2 a.m. on 6.3.1985 and ask her for a photograph
of the deceased and offered to pay Rs.20/- towards the
expenses of PW-1, and told PW-1 that her husband had
escaped from their custody while sleeping in the Verandah.
This shows that A-1 has made out a case of escape of the
Vadivelu on the night of 5.3.1985. Therefore, it is clear that
circumstance No.4 relied upon by the prosecution as to the
appellants trying to make out a false case of Vadivelu
escaping from the police station stands established.
The 5th circumstance considered by the courts below
pertains to the identification of the dead body found at
Enathur. This is a very important circumstance so far as the
prosecution case is concerned. Learned Sessions Judge
accepted the prosecution case that the said dead body was
that of Vadivelu. This was on the basis of the evidence of
PWs.1 and 6, who had pointed out the identification marks
on the person of Vadivelu, and by comparing these
identification marks with those found by the doctor who
conducted the post mortem. The trial court also placed
reliance on the evidence of PW-18, the photographer, and
held that the body which was the subject matter of Crime
No.141/85 was that of Vadivelu’s. However, the High Court
placing an undue emphasis on the failure of PWs.1 and 6 to
mention the approximate height and weight of Vadivelu,
came to the conclusion that the prosecution has not proved
that the said dead body was that of Vadivelu.
Learned counsel appearing for the appellant supported
the finding of the High Court by pointing out that the
identification marks spoken to by PWs.1 and 6 were not
mentioned in the first instance by these witnesses when their
statement was recorded. They also supported the conclusion
of the High Court, that in the absence of the description of
the dead body as to its height and weight, in the evidence of
PWs.1 and 6, it should be held that the prosecution has
failed to establish the identification of the dead body. They
also contend that the evidence of PW-18 in this regard is
wholly artificial and should not be relied upon because of
the fact that the said witness could not have remembered the
features of the dead body which he had seen about 7 years
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earlier.
We have carefully examined the evidence of PWs.1
and 6. They have stated that Vadivelu had a birthmark on his
right side buttocks as also a surgical mark on the back side
of his shoulder. These witnesses have also stated that he had
undergone circumcision, which is not a common thing
amongst the members of the caste to which Vadivelu
belonged. The doctor who conducted the post mortem
examination of the dead body had in his evidence stated that
these identification marks were found on the said body and,
therefore, the identification marks spoken of by PWs.1 and 6
found on person of Vadivelu tally with the identification
marks found on the dead body on which the doctor
conducted the post mortem, indicating that the body was that
of Vadivelu. This apart, it is seen from the evidence of PW-1
that on the day when Vadivelu went missing, he was
wearing a white shirt and a white dhoti. PW-3, the Constable
who arrested Vadivelu has in his evidence stated that when
he arrested him and produced him in Wallajahbad Police
Station, he was wearing a white shirt and a white dhoti. The
dead body which was found in Crime No.141/85 was also
found wearing a white shirt and a white dhoti. This further
supports the prosecution case in regard to the identification
of the dead body. The fact that PWs.1 and 6 did not speak
about the approximate height and the weight of Vadivelu
would not, in our opinion, on the facts of this case outweigh
the other evidence adduced by the prosecution for the
identification of the dead body. In our opinion, the High
Court has put an undue emphasis on non-mentioning of the
approximate height and weight of Vadivelu, especially when
3 very specific identification marks were pointed out by
these witnesses. The fact that these identification marks
were stated by these witnesses in their subsequent statement
also would not, in our opinion, in any manner reduce the
evidentiary value of their evidence. In these circumstances,
we are of the considered opinion that the Sessions Court was
justified in placing reliance on this part of the prosecution
evidence and coming to the conclusion that the body which
was recovered in Crime No.141/85 was that of Vadivelu,
and that the High Court was not justified in reversing this
finding while coming to this conclusion. We have
deliberately not placed any reliance on the evidence of PW-
18 since we find some force in the arguments addressed on
behalf of the appellants that the identification through the
photograph made by PW-18, after nearly 7 years may not be
safe to be relied upon.
The 6th circumstance pertains to the tampering of the
entries in the log book of the Police Jeep TNL 9403, and
also secretion of certain photographs and negatives taken by
PW-18. From the material on record, it is clear that these
tamperings and secretions took place only when the log
book, photographs and negatives were in the possession of
the police, therefore, the courts below were justified in
drawing an inference that tampering of the log book as well
as secretion of photographs and negatives was done by the
concerned police to help the accused, therefore, the courts
below were justified in treating this piece of evidence as a
link evidence in the process of considering the
circumstances against the appellants.
The last circumstance relied on by the courts below
pertains to the stand taken by the appellants in the trial as to
parting company with Vadivelu. Here we must notice that as
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discussed hereinabove, the prosecution has established the
fact that Vadivelu was seen in the company of the appellants
from the morning of 5.3.1985 till at least 5 p.m. on the same
day, when he was brought to his house and thereafter his
dead body was found in the morning of 6.3.1985. Therefore,
it has become obligatory on the appellants to satisfy the
court as to how, where and in what manner Vadivelu parted
company with them. This is on the principle that a person
who is last found in the company of another, if later found
missing, then the person with whom he was last found has to
explain the circumstances in which they parted company. In
the instant case the appellants have failed to discharge this
onus. In their statement under Section 313 Cr.P.C. they have
not taken any specific stand whatsoever. In the evidence of
PW-25, it is elicited that on 5.3.1985 in the afternoon when
Vadivelu was produced before the said witness, he after
interrogation allowed Vadivelu to go, but then it is found
from his evidence that he instructed A-1 to keep a watch
over Vadivelu. In such circumstances, it was incumbent
upon A-1 to have explained to the court in what
circumstances they parted company. He has not given any
explanation in this regard. On the contrary, the prosecution
has established the fact that on the very day at about 5 p.m.,
Vadivelu was brought to the house of PW-1 by the
appellants which was seen by PW-5. This part of the
evidence of PW-5 has gone unchallenged in the cross-
examination and, therefore, we will have to proceed on the
basis that, what is stated by PW-5 in this regard is true. If
that be so, the prosecution has established the fact that on
5.3.1985 at 5 p.m. Vadivelu was still in the company of
these appellants and, therefore, in the absence of any
specific explanation from the appellants in this regard, and
in view of the other incriminating circumstances against the
appellants having been proved by the prosecution, an
adverse inference will have to be drawn against these
appellants as to their part in the missing of Vadivelu. At this
point, it may be relevant to note that though no specific
stand has been taken by the appellants as to their parting
company with Vadivelu, in their statement under Section
313 Cr.P.C., it is seen from the evidence of PWs.1 and 5 that
A-1 told the said witnesses on the night intervening between
5th and 6th March, 1985 that Vadivelu had escaped from the
Police Station when he was allowed to sleep in the verandah
of the Police Station. This explanation given by A-1 to PW-
1 which was also heard by PWs.5 and 14, clearly shows that
the same is totally false and obviously was an excuse made
by the appellants to conceal the true facts and, therefore, this
circumstance of A-1 making a false statement to PW-1 can
also be taken as a circumstance against the appellants, in
establishing the appellants’ guilt. This Court in more than
one case has held, that if the prosecution, based on reliable
evidence, establishes that the missing person was last seen in
the company of the accused and was never seen thereafter, it
is obligatory on the accused to explain the circumstances in
which the missing person and the accused parted company.
See Joseph v. State of Kerala [2000 5 SCC 197]. Therefore,
we are in agreement with the finding of the courts below that
circumstance No.7 also stands established against the
appellants.
In view of this fact, we have agreed with the trial
court that the dead body found on 6.3.1985 is that of
Vadivelu. We need not answer the argument of the appellant
that there is no linking evidence produced by the prosecution
to establish the death of Vadivelu, which is an argument
based on certain observations of this Court made in the case
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of Ram Gulam Chaudhary & Ors. vs. State of Bihar, (2001
(8) SCC 311)
It was also argued before us on behalf of the
appellants that the courts below ought not to have placed
any reliance on Ex. P-26 which is supposed to be a note of
post mortem examination on the body, found in Crime
No.141/85, on the ground that the said note is not proved in
accordance with law. From the records, we see that this
document was accepted by the courts below with consent of
the parties and no objection whatsoever was taken at any
time during the time before the trial court nor even at the
appellate stage. It was contended for the first time in this
Court that this document ought not to have relied on by the
courts below. We do not think that we should permit this
question to be raised at this belated stage, without really
knowing what was the reason for allowing this document to
be admitted in evidence by the defence. We find, having
permitted this document to be put in evidence by consent,
the defence has denied the prosecution an opportunity of
properly bringing the said document in evidence and, hence,
we think that it is not appropriate for us to permit the
appellants to raise this objection at this belated stage.
It is then argued on behalf of the appellants that from
the prosecution case itself, it is clear that the prosecution is
not sure when exactly Vadivelu was taken away from the
Police Station. It is also argued on behalf of the appellants
that there is so much discrepancy in the prosecution case,
that it is not safe to place reliance on the same to base a
conviction. It is true that there are some inconsistencies in
the prosecution case, but then we cannot be oblivious of the
fact that this case had a chequered career because of the
involvement of the Police Officers in the death of Vadivelu.
It has come on record, that based on the allegations made in
a habeas corpus writ petition, the High Court of Madras had
directed an investigation to be conducted as to the missing
of Vadivelu. In the said writ petition itself, serious
allegations were made against the appellants and the High
Court was constrained to issue a direction as per its order
dated 7.12.1988, that the Director General of Police,
Madras, should issue instructions to the concerned CBCID
to register a case on the missing of Vadivelu. In that order
itself, the High Court had noticed that Vadivelu was taken
into custody by the Police and the Police had stated that he
had escaped from their custody and absconded thereafter.
Inspite of the directions being given on 7.12.1988 we find
that the chargesheet was laid only on 22.11.1991. During the
trial, we find some material witnesses have turned hostile
and other witnesses like PW-25 who even though did not
turn hostile, have tried to help the defence to the best
possible extent. Thus, it has become the duty of the courts
below to find out the truth as to the prosecution case. In a
situation like this, as held by this Court, the benefit of an act
or omission of the investigating agency, should not go to the
accused in the interest of justice. In this regard the following
observations of this Court in the case of Ram Bihari Yadav
v. State of Bihar & Ors. [1998 4 SCC 517] may be noted :
"Though the prosecution has to prove
the case against the accused in the manner
stated by it and that any act or omission on the
part of the prosecution giving rise to any
reasonable doubt would go in favour of the
accused, yet in a case like the present one
where the record shows that investigating
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officers created a mess by bringing on record
dying declaration and GD Entry and have
exhibited remiss and/or deliberately omitted to
do what they ought to have done to bail out the
appellant who was a member of the police force
or for any extraneous reason, the interest of
justice demands that such acts or omissions of
the officers of the prosecution should not be
taken in favour of the accused, for that would
amount to giving premium for the wrongs of
the prosecution designedly committed to favour
the appellant. In such cases, the story of the
prosecution will have to be examined dehors
such omissions and contaminated conduct of
the officials otherwise the mischief which was
deliberately done would be perpetuated and
justice would be denied to the complainant
party and this would obviously shake the
confidence of the people not merely in the law
enforcing agency but also in the administration
of justice."
Placing reliance on the above enunciation of law, we
reject the above argument of the appellants.
It is then contended on behalf of the appellants that
the Police Officers have no motive whatsoever to have
committed the murder of Vadivelu and the prosecution case
being one of circumstantial evidence, the benefit of doubt
should be given to the appellants. We do not think it is
possible to accede to this request of the appellants either.
This Court had held in the case of circumstantial evidence
that if the circumstances relied upon by the prosecution are
proved beyond doubt, then the absence of motive would not
hamper a conviction. See Mani Kumar Thapa v. State of
Sikkim [2002 7 SCC 157].
On behalf of appellant No.1, it is then argued that the
said appellant was not the investigating officer in Crime
No.37/85 and he had no reason whatsoever to take part in
the beating of the deceased, and that it is clear from the
prosecution case that this appellant was not with A-2 when
Vadivelu was taken to be produced before PW-25.
According to the learned counsel, A-1 was in a meeting
between 9 a.m. and 2 p.m. on 5.3.1985 with his superior
officers which is proved by the evidence of PW-25.
Therefore, he contended that this appellant had no part to
play in the alleged murder of Vadivelu and he has been
implicated falsely. We cannot accept this evidence
addressed on behalf of appellant No.1. It is true that this
accused was not the investigating officer in the case of
double murder. Still it is clear from the evidence that he was
in the Police Station when Vadivelu was brought to the
Police Station. From the evidence of PW-8, it is seen that he
also took part in the assault on Vadivelu. It is further clear
from the evidence of PWs.1 and 5 that this appellant was
found in the company of Vadivelu and A-2 when they came
to the house of PW-1 at about 5 p.m. on 5.3.1985. It is also
clear from the evidence of PWs.1, 5 and 14 that this
appellant went to the house of PW-1 at about 2 a.m. in the
morning of 6.3.1985 to inform PW-1 that Vadivelu had
escaped from the Police Station. In such circumstances, we
are of the opinion that the arguments addressed on behalf of
this appellant cannot be accepted.
Before concluding, we think it appropriate to refer to
some of the observations of this Court in a case akin to the
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facts of the present case that is the case of Bhagwan Singh
& Anr. vs. State of Punjab, 1992 (3) SCC 249 which
appropriately refers to the duties of the police officers and
the consequences of their act which may have a bearing on
the facts of this case.
"A case cannot be thrown out merely on
the ground that the dead body is not traced
when the other evidence clinchingly establishes
that the deceased met his death at the hands of
the accused. It may be a legitimate right of any
police officer to interrogate or arrest any
suspect on some credible material but it is
needless to say that such an arrest must be in
accordance with the law and the interrogation
does not mean inflicting injuries. It should be in
its true sense and purposeful namely to make
the investigation effective. Torturing a person
and using third degree methods are of medieval
nature and they are barbaric and contrary to
law. The police would be accomplishing behind
their closed doors precisely what the demands
of our legal order forbid. In Dagdu v. State of
Maharashtra this Court observed as under :
(SCC p.92, para 88)
..The police, with their wide powers,
are apt to overstep their zeal to detect crimes
and are tempted to use the strong arm against
those who happen to fall under their secluded
jurisdiction. That tendency and that temptation
must in the larger interest of justice be nipped
in the bud.
It is a pity that some of the police
officers, as it has happened in this case, have
not shed such methods even in the modern age.
They must adopt some scientific methods than
resorting to physical torture. If the custodians of
law themselves indulge in committing crimes
then no member of the society is safe and
secure. If police officers who have to provide
security and protection to the citizens indulge in
such methods they are creating a sense of
insecurity in the minds of the citizens. It is
more heinous than a game-keeper becoming a
poacher."
For the reasons stated above, we find no merit in these
appeals and the same are dismissed.
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