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2003(1) Crimes 80 (SC)
Supreme Court of India
(From Chennai High Court)
N. Santosh Hegde & K.G. Balakrishnan, JJ.
Sahadevan @ Sagadevan —Appellant
versus
State rep. by Inspector of Police, Chennai —Respondent
Criminal Appeal No. 106 of 2002
With
Crl.A.No. 105/2002
Decided on 1-11-2002
(ii) Contentions by the appellants—(i) in cases when the corpus-delicti is not found, there should be some acceptable evidence to prove that the death of the missing person was in fact caused and that the accused persons are directly responsible for causing such deaths (ii) there is so much discrepancy in the prosecution case that it is not safe to place reliance on the same to base a conviction—Contentions rejected—Appeal dismissed.
Held : 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. 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. (Para 19)
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. 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. (Para 22)
In such circumstances, we are of the opinion that the arguments addressed on behalf of this appellant cannot be accepted. (Para 25)
JUDGMENT
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.
2. 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.
3. 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 Wallajahbad. The 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 i
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