Santosh Hegde, J. -
(1.)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, I. P. C. 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, I. P. C. He also convicted these appellants to undergo rigorous imprisonment for three years under Section 348, I. P. C. and to undergo 7 years imprisonment for an offence punishable under Section 201, I. P. C. and further convicted these appellants to undergo imprisonment for life for an offence punishable under Section 302 read with Section 34, I. P. C. 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 hereinabove, 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, 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-1s 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 in spite 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 Section 302, I. P. C. after seeking permission from the superior officer, and filed a charge-sheet against the above said accused persons on 22-11-1991.