Case: Sahadevan @ Sagadevan Vs. State Rep by Inspector of Police, Chennai

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, Ekambaramand one Loganathan were the suspects and the police were on the look out to arrest these three persons.According to the prosecution case,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 theof 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 therge of the police station at Wallajabhad. The saidis an appellant before us. It is the case of the prosecution thatwho is another appellant before us, was also aof Police in the said police station, and was present in the said station at that time. It is also the case of the prosecution thatm 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 Vadivelus custody in the Wallajahbad Police Station,d the deceased by using a Ruler which was noticed byThe prosecution then also states that Sivaprakasam who had accompanied Vadevelu 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 tothe wife of Vadivelu, as also to his brotherg to the evidence of PWs 3, 4 and 8,thereafter took the deceased in a jeep and was produced beforewho was investigating in double murder case, who in his evidence before the Court stated that after questioning the said deceased he askedto release the deceased. The prosecution further states on 5.3.1985 thatwent in a police jeep to the residence ofat about 5 p.m. and asked her to hand over certain account books maintained by Vadivelu. This was done in the presence ofIt is also stated thatwhile 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 accused2. The further case of the prosecution is that in the early morning at about 2 a.m. on 6.3.1985n went to the residence ofand asked for a photograph of Vadivelu. During that visit, it is stated thatthat 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 bywho is a retired School Master and the landlord of1s sonIt 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 brotherand 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 theh included the appellants herein to file their return. It is the case of the prosecution that in the return filed by the respondent 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, thatregistered a crime No. 6/89 and initiated the investigation into the missing case of Vadivelu andthereafter registered a case after Section 302 IPC after seeking permission from the superior office, and filed aagainst the above said accused persons on 22.11.1991.5. 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 byPanneerselvam 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 byand 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.6. 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 arePWs. 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)saw the accused 1 and 2 beating the deceased on 5.3.1985 in Wallajahbad Police Station.(3)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)came to the house ofat about 2 a.m. on 6.3.1985 and informed her that Vadivelu had escaped from their custody and offered to pay Rs. 20/1 towards the expenses.(5) The recovery of the body of Vadivelu with head injuries.(6) The tampering of records viz. Ex.log book of the vehicle;case diary and secreting of the negative (photographs of Vadivelu) fromFailure 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 against the appellants and, hence, it concerned 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 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.

Court's reasoning:
12. So far as the circumstances which pertains to the production of Vadivelu beforein 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 bythat he along withand 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, theof the deceased to identify and trace the said Vadivelu since PWs 3 and 4 did not know Vadivelu personally. From the evidence ofit 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, bywho 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 theAs a matter of fact as observed by the two courts below, even in their statement made under Section 313 Cr. P.C., the appellants have not disputed that fact that Vadivelu was produced in the police station.of course, in his statement had stated that he was produced beforemeaning 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 ofthat he sawassaulting 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 the8 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 thatwas arrested only on 9.3.1985 and, therefore, we have no hesitation in accepting the fact thatevidence 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 ofproduced Vadivelu before him on 5.3.1985 sometime in the afternoon. This factor also goes to show thateven according towas 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 of2. Therefore, it is clear that the prosecution has established beyond all reasonable doubts that Vadivelu was in the company of2, 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 circumstances alleged against the accused person stands proved by the evidence of the prosecution.13. In regard to the second circumstances which speaks of the factum of assault of Vadivelu by2, the same is sought to be established by the prosecution from the evidence ofWe have already held that the prosecution case thatwas arrested much earlier than 9.3.l1985 and was in the Wallajahbad Police Station on 5.3.1985 is acceptable. Therefore, the defence case that Vadivelu was arrest only on 9.3.1985 has to be rejected. In such circumstances and having perused his evidence and the line ofwe are satisfied that the evidence ofas 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 that fact thatwas witnessed the assault of Vadivelu by the appellants on 5.3.1995, when he was brought to the Wallajahbad Police Station.From the evidence ofand PWs 1 and 5, it is clear thatdid go to the house ofin 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 ofthat her husband had escaped from their custody while sleeping in the Verandah. This shows thathas made out a case of escape of the Vadivelu on the night of 5.3.1985. Therefore, it is clear that circumstances 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 standsapart, it is seen from the evidence ofthat on the day when Vadivelu went missing, he was wearing a white shirt and a white dhoti.the Constable who arrested Vadivelu has in his evidence stated that when he arrested him and produced him 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 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 onof the approximate height and weight of Vadivelu, especially when 3 very specific identification mark 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 ofsince we find some force in the arguments addressed on behalf of the appellants that the identification through the photograph made byafter nearly 7 years may not be safe to be reliedpart of the evidence ofhas gone unchallenged in theand, therefore, we will have to proceed on the basis that, what is stated byin 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 apellants 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 thattold the said witnesses on the night intervening between 5th and 6th March, 1985 that Vadivelu and escaped from the Police Station when the was allowed to sleep in the verandah of the Police Station. This explanation given bywhich 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 ofmaking a false statement tocan 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 thefind, 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 belatedis true that there the some inconsistencies in the prosecution case, but then we cannot be oblivious of the fact that this case had a chequered carrer because of the involvement of the Police Officer in the death of Vadivelu. It has come or 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 ofthe trial, we find some material witnesses have turned hostile and other witnesses likewho 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.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 ].26. 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 withwhen Vadivelu was taken to be produced beforeg to the learned counsel,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, he contended that this appellant had no part to play in the alleged murder of Vadivelu and he has been implicated falsely.Before concluding, we think it appropriate to refer to some of the observations of this Court in a case akin to the facts of the present casethat 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 thiscase 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 members 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 abecoming a poacher."