Muniappan & Ors. Vs. State of Tamil Nadu  INSC 675 (30 August 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.
127-130 OF 2008 C. Muniappan & Ors. ... Appellants State of Tamil Nadu
CRIMINAL APPEAL NOS.1632-1634 OF 2010 (Arising out of SLP(Crl.) Nos. 1482-1484
of 2008) D.K. Rajendran & Ors. etc.etc. ...Appellants State of Tamil Nadu
Leave granted in Special Leave Petition (Criminal) Nos. 1482-1484
These appeals have been preferred against the Judgment and Order
dated 6.12.2007 of the High Court of Madras in 2 Crl. Appeal Nos. 226, 266 and
267 of 2007, and Death Sentence Reference in Trial No. 1 of 2007.
Facts and circumstances giving rise to these cases are that on
22.1.2000, the students of the Horticulture College and Research Centre,
Periakulam, affiliated to the Tamil Nadu Agricultural University, Coimbatore
(hereinafter called the `University'), left for an educational tour in two
buses. One bus was carrying male students and the other bus was carrying 47
female students. After completing the educational tour, the students came to
Paiyur, near Dharmapuri, on 1.2.2000, at about 12.00 midnight, and stayed in
the Regional Agricultural Research Centre. On the next day, after visiting the
research centre, they left for a tour to Hogenakkal from Dharmapuri, which was
the last leg of their tour as per their revised tour programme. They visited a
nursery garden on 2.2.2000 and reached Dharmapuri at 12.30 p.m. and parked
their buses in front of Saravanabhavan Hotel. The students and the two teachers
accompanying them went to the Saravanabhavan Hotel to take their meals and to
purchase 3 parcels of food. Some of the students remained in the bus itself.
In view of naxalite movement and activities around Dharmapuri, the
Deputy Superintendent of Police at Dharmapuri had promulgated a prohibitory
order under Sections 30-A and 61 of the Indian Police Act, 1861, which expired on 31.1.2000, and thus, a fresh prohibitory
order was issued on 31.1.2000, for fifteen days. On 2.2.2000, former Chief
Minister of Tamil Nadu, Ms. J. Jayalalitha, along with four others was
convicted and sentenced to undergo one year imprisonment in the Pleasant Stay
Hotel, Kodailkanal, case.
to the prosecution, when the news of her conviction spread, the AIADMK party
members resorted to dharnas and took out processions in Dharmapuri and
compelled the shop keepers to close their shops by pelting stones. The news of
conviction and sentence of the former Chief Minister of Tamil Nadu was being
broadcast on T.V. and radio, thus, the students and teachers also came to know
According to the prosecution, a procession of 100 to 150 party
workers having flags of AIADMK party, armed with sticks and stones passed on
the roads nearby the buses, raising slogans. The girl students witnessed the
procession but remained in the bus. Dr. Latha (PW.1), the teacher accompanying
the students, contacted the Vice-Chancellor of the University and told the
students that the Vice-Chancellor had instructed them to stay at a safe place
and return to Coimbatore after the situation becomes normal. On this advice,
the drivers of both the buses made an attempt to take the buses to the District
Collector's office. However, the buses could not reach there because of the
obstruction of the traffic on the way, as the political workers staging dharna
came on the road. Mr. P. Kandasamy (PW.4), driver of bus no. TN-38- C-5550,
which was carrying the girl students, moved the bus to some distance and parked
it in a vacant place near an old petrol bunk. The bus carrying the boys was
also moved there.
accused, along with other political workers formed an unlawful assembly
indulging in a `road roko agitation', under the leadership of D.K. Rajendran
(A.1), violating the 5 prohibitory order at Illakkiampatti, near the MGR statue
on the Salem-Bangalore National Highway, prevented the free flow of traffic and
caused nuisance to general public at large.
damaged the government buses having registration nos. TN-29-N-1094,
TN-29-N-0543 and TN-29-N-1011 by breaking their glasses and also set fire to
the three seats of one of the buses (being a town bus with Route No. 7-B).
As per the Prosecution, Nedu @ Nedunchezhian (A.2), Madhu @
Ravindran (A.3) and C. Muniappan (A.4) having the common object to cause damage
to the buses, left the aforesaid place and went to the motor workshop of B.
Kamal (PW.86), namely "Majestic Auto Garage", and procured petrol in
two plastic cans and came to the place where the bus in which the girl students
were travelling was parked. It is alleged that Nedu (A.2) and Madhu (A.3)
sprinkled petrol inside the bus through the first two shutters on the left-side
and Nedu (A.2) lit a match stick and threw it inside the bus.
(A.2) and Madhu (A.3) went towards the motor bike which was already kept ready
for running by C. Muniappan 6 (A.4) and escaped from the scene. The fire lit at
the front-side of the bus spread backwards. Dr. Latha (PW.1) and Akila (PW.2)
(both teachers) managed to get down from the bus from the front door along with
some students. Some girl students stretched their heads and hands through the
shutters and the boy students pulled them out. However, three students, namely,
Kokilavani, Hemalatha and Gayathri could not escape from the burning bus. They
were burnt alive inside the bus.
the girl students got burn injuries while getting down from the bus and some
were injured while they were being pulled out through the shutters. The injured
students were taken to the Government Hospital, Dharmapuri, where they were
treated by Dr. K.S. Sampath (PW.30).
On the same day, an FIR was lodged at about 1.30 p.m. in the
police station regarding the occurrence of the incident involving the Town Bus
with route no.7-B. In respect of the other incident, i.e. the Bus burning, an FIR
was lodged at about 3.30 p.m. vide written complaint (Exh. P.120) and a case
under Sections 147, 148, 149, 436 and 302 of Indian 7 Penal Code, 1860 (in
short the `IPC') and under Sections 3 and 4 of the Tamil Nadu Property
(Prevention of Damage & Loss) Act, 1992 (in short as "TNP (PDL)
Act") was registered. In the said FIR, the name of C. Muniappan (A.4) was
statement was made that "some persons shouting slogans surrounded the bus
and broke down the window panes" and Nedu (A.2) and Madhu (A.3) poured the
petrol from the front entrance of the bus and set it on fire. As far as the
damage caused to the government buses at Illakkiampatti is concerned, on
2.2.2000, Elangovan (PW.60), a Senior Assistant Engineer in the Tamil Nadu Transport
Corporation, Dharmapuri, at 8.00 p.m. submitted a written complaint (Exh. P.82)
under Sections 147, 148, 341, 436 and 506(ii) IPC and Sections 3 and 4 of the
TNP (PDL) Act.
On these complaints, investigations were carried out by Ayyasamy,
Inspector of Police (PW.81), and he inspected the place of occurrence at about
10.30 p.m. in the presence of witnesses Velayutham (PW.67) and Vetrivel (PW.68)
and prepared an Observation Mahazar (Ex. P.107). He also 8 prepared a rough
sketch and recovered broken glass and brick pieces from the place under the
Seizure Mahazar (Ex. P.109).
were inspected on the next day by Motor Vehicles Inspector and he prepared
reports in respect of the same (Exs. P.116 to P.119).
Dr. A.C. Natarajan (PW.31) conducted an autopsy on the body of
Kokilavani, Dr. N. Govindaraj (PW.35) conducted an autopsy on the body of
Gayathri and Dr. Rajkumar (PW.38) conducted an autopsy on the body of Hemalatha
and issued Exs. P.23, P.33 and P.28, Post mortem certificates, respectively.
In respect of the second incident, regarding bus no. TN-
38-C-5550, Crime No. 188 of 2000 was registered on the basis of the complaint
given by Village Administrative Officer, C. Ramasundaram (PW.87). Since the
officer-in-charge of police station was on court duty, Shanmugaiah, Inspector
of Police (PW.116) took up the investigation. However, after two days, i.e. on
4.2.2000, Vilvaranimurugan, Inspector of Police 9 (PW.119) took over the
investigation from Shanmugaiah (PW.116). On 6.2.2000, investigation was
transferred to the CBCID and R. Samuthirapandi, Additional Superintendent of
Police (PW.123), became the Investigating Officer.
After completing the investigation, a report under Section 173 of
the Code of Criminal Procedure, 1973 (hereinafter called as "Cr.PC"),
was filed on 28.4.2000, arraying 31 persons as accused. The case was committed
to the Sessions Court, Krishnagiri, vide Order dated 25.7.2000. The Sessions
Court, Krishnagiri, framed 21 charges against all accused persons vide order
dated 8.10.2001 under Sections 147, 148, 149, 341, 342, 307 read with Sections
302, 114 IPC and Sections 3 and 4 TNP (PDL) Act. During the course of trial, 10
out of 11 witnesses, who had been examined, turned hostile, including C.
Ramasundaram (PW.87) who had lodged the complaint in respect of second
incident. Being dissatisfied and aggrieved, Veerasamy, father of one of the
victims, namely, Kokilavani, approached the High Court of Madras by filing Cr.
O.P. No. 23520 of 2001 under Section 407 Cr.PC seeking transfer of 1 the trial
from Krishnagiri to Coimbatore on various grounds, inter-alia, that all the
accused were from the AIADMK party and were holding the party posts; most of
the witnesses who had been examined had turned hostile, including the
complainant C. Ramasundaram; all the accused and most of the witnesses were
from the Coimbatore District and thus, they would be won over by the accused.
Therefore, conduct of an impartial trial was not possible at Krishnagiri. The
High Court allowed the said Transfer Petition vide order dated 22.8.2003
issuing some directions, including the appointment of the Special Public
Prosecutor and to have a de-novo trial.
order of transfer was challenged by D.K. Rajendran (A.1), by filing SLP(Crl.)
No. 4678 of 2003. However, the said SLP was dismissed by this Court vide order
The Special Public Prosecutor was appointed after filing of a
contempt petition before the High Court for not complying with its order dated
22.8.2003. The State Government initiated Departmental Proceedings against the
Village Administrative Officer, C. Ramasundaram (PW.87), the 1 complainant, who
had been examined at Krishnagiri Court, for not supporting the case of the
prosecution. After a long delay, vide order dated 14.3.2005, the Sessions
Court, Salem, framed 22 charges against the 31 accused, as the trial was being
conducted de-novo. During the trial, 123 witnesses were examined and after
assessing the facts and the legal issues, the Trial Court delivered the
judgment and order dated 16.2.2007.
31 accused were put to trial. R. Chellakutty (A.22) died during trial. S.
Palanisamy (A.15) and A. Madesh @ Madesh Mastheri (A.27) stood acquitted. The
remaining 28 accused were convicted under Sections 188, 341 IPC and 3 & 4
of TNP (PDL) Act r/w 149 IPC. In addition, all of them except accused No. 24,
Mani @ Member Mani, were convicted for offence u/s 147 IPC, whereas accused No.
24, Mani @ Member Mani was convicted, for an offence u/s 148 IPC.
from that accused No. 2, Nedu @ Nedunchezhian, and accused No. 3, Madhu @
Ravindran, were convicted for offences u/s 302 IPC (3 counts) and accused No.
4, C. Muniappan, u/s 302 r/w 114 IPC (3 counts) and the accused 1 Nos.2 and 3
were convicted also for offences u/s 307 IPC (46 counts) and C. Muniappan (A4)
for offences u/s 307 r/w 114 IPC for 46 counts. Accused Nos. 2, 3 and 4 were
sentenced to death.
sentences imposed on accused Nos. 1, 5 to 14, 16 to 21, 23 to 26 and 28 to 31
were ordered to run consecutively which extended to 7 years and 3 months and
sentence of 7 years and 9 months to accused No. 24.
All the 28 convicts filed appeals before the High Court of Madras.
The death sentence references in respect to Nedu (A.2), Madhu (A.3) and C.
Muniappan (A.4) were also made.
Revision No. 777 of 2007 was filed by R. Kesava Chandran @ Moorthy, the father
of one of the deceased, namely, Hemalatha, for enhancement of punishment
imposed on all the accused. As all the appeals, references and Crl. Revision
arose out of a common judgment, they were taken up jointly and disposed of by
the High Court vide impugned judgment and order dated 6.12.2007.
hearing the aforesaid Crl. Revision and appeals, the High Court modified the
conviction of accused No. 24 under section 148 IPC as being under section 147
IPC. Accused nos. 1, 5 to 14, 16 to 21, 23 to 26 and 28 to 31 were awarded
different punishment for different offences, however, maximum punishment
remained two years as all the sentences were directed to run concurrently.
and sentence of death against accused Nos. 2 to 4 was confirmed by the High
Court along with all other sentences under different heads.
Hence, these seven appeals.
Shri Sushil Kumar and Shri Udai U. Lalit, learned senior counsel
appearing for all these appellants, have submitted that the facts and
circumstances of the case did not warrant any trial. The case of the
prosecution had been inherently improbable. There had been material
contradictions in the statements of witnesses in respect of the involvement of
the accused and the nature of offences committed by them. The 1 inquest reports
were not consistent with the charge-sheets.
statements made by some of the accused before the police, could not be relied
upon nor read as a whole in the court, as it is not permissible in law. The
reading of the full text thereof, had materially prejudiced the mind of the
separate FIRs, i.e., in respect of Crime No.188/2000 and 190/2000 could not be
clubbed, resulting in one consolidated charge sheet. All the accused had been
charged by the Salem Court even for the offence under Section 188 IPC. In this
respect, as no complaint had been filed by the competent officer whose
prohibitory order had been violated, the charge could not have been framed. In
any case, as it was not permissible for the trial court to frame any charge
under Section 188 IPC in absence of any written complaint by the public servant
concerned, the genesis of the prosecution case becomes doubtful and the
appellants become entitled to the benefit of doubt. Further, cases under
Section 188 I.P.C. are triable by the Magistrate. In this case, it has been
tried by the Sessions Court. Such a course has caused great prejudice to the
appellants. The statements made by the witnesses 1 particularly, by Dr. Latha
(PW.1), Akila (PW.2), P. Kandasamy, Driver (PW.4) and N. Jagannathan, Cleaner
(PW. 5), were full of contradictions and could not be relied upon.
of the accused was on the basis of the photographs taken and published by the
(A.4) was arrested on 3rd February, 2009, in respect of some other case and,
therefore, his arrest shown on 7th February, 2009, was only an act of jugglery.
The Forensic Report did not support the case of the prosecution that kerosene
oil or petrol had been put to set the bus ablaze.
the most material witnesses of the prosecution, like B. Kamal (PW.86), turned
hostile, thus could not be relied upon.
Four different versions have been given by the different witnesses
disclosing the genesis of the main incident.
revealed by the complaint lodged by C. Ramasundaram (PW.87), the incident
occurred at 3.30 p.m. on 2.2.2000. According to the complaint, 20 persons named
in the F.I.R. armed with wooden sticks and iron rods, shouted slogans and
caused damage to the bus. They threatened the 1 girl students, who were
travelling in the bus, with dire consequences. Nedu (A.2) and Madhu (A.3)
brought the petrol and sprinkled the same inside the bus as well as on the
platform. D.K. Rajendran (A.1) ordered that no one should be allowed to get
down from the bus and threatened that the bus will be set on fire along with
the inmates. Immediately, both Nedu (A.2) and Madhu (A.3) set the bus on fire
with match sticks. Suddenly, the fire engulfed the entire bus and all the
accused ran away from the scene. Some girls were trapped inside the bus and
charred to death. C. Muniappan (A.4) was not named in the first version.
second version is as per the evidence of P. Kandasamy (PW.4), driver of the
vehicle and N. Jagannathan (PW.5), Cleaner. According to them, the incident occurred
on 2.2.2000, wherein, two persons came on a motor bike and stopped in front of
the bus. One of them sprinkled the petrol through left side window and set the
bus on fire and went away on the motorbike.
version has been as revealed by the Report (Ex.D.14) submitted by P. Kandasamy
(PW.4), Driver, dated 1 7.2.2000, according to which, two persons came on a
motor bike and stopped in front of the bus. One of them sprinkled petrol
through the left side window and set the bus on fire.
version is based on the Report (Ex.D.12), dated 6.3.2000, by Dr. Latha (PW.1),
according to which, when the bus was parked, at about 2.25 p.m., after two
minutes thereof, one person poured the petrol on the front seats and set the
bus on fire.
All the aforesaid
versions are contradictory to each other.
case of prosecution is not trustworthy.
view of the above, appeals deserve to be allowed.
Per contra, Shri Altaf Ahmad, learned senior counsel appearing for
the State, has tried to defend the prosecution's case submitting that the
contradictions were trivial in nature.
submitted that framing of charges under Section 188 IPC in absence of written
complaint of the public servant concerned, could not be fatal to the prosecution's
case. The entire prosecution case cannot be discarded merely on the grounds of
improperly framing the charges under Section 188 1 I.P.C. Clubbing the two
crimes, i.e., 188/2000 and 190/2000 did not cause any prejudice to any of the
accused. Both the crimes were found to be parts of the same incident. The court
has to examine the facts in a proper perspective where the said ghastly crime
had been committed, where three university girl students stood roasted and 18
girl students suffered burn injuries. At the initial stage, the investigation
was conducted by Shri Shanmugaiah (PW.116), as the Inspector, Shri
Vilvaranimurugan (PW.119) was on court duty on 2.2.2000.
PW.119 took over the investigation after being free from the court duty.
Considering the gravity of the offences, the investigation was handed over to
the CBCID, thus, the change of Investigating Officer was inevitable. The Test
Identification Parade was conducted by the experienced Judicial Officer in
accordance with law and there was no haste in conducting the same. There is no
rule of law that deposition of a hostile witness is to be discarded in toto.
The appeals lack merit and are liable to be dismissed.
We have considered the rival submissions made by learned counsel
for the parties and perused the records.
under Section 188 IPC:
Section 195 Cr.PC reads as under :
Prosecution for contempt of lawful authority of public servants, for offences
against public justice and for offences relating to documents given in evidence
- (1) No Court shall take cognizance - (a)(i) of any offence punishable under
Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
the complaint in writing of the public servant concerned or of some other
public servant to whom he is administratively subordinate;"
Section 195(a)(i) Cr.PC bars the court from taking cognizance of
any offence punishable under Section 188 IPC or abetment or attempt to commit
the same, unless, there is a written complaint by the public servant concerned
for contempt of his lawful order. The object of this provision is to provide
for a particular procedure in a case of contempt of the lawful authority of the
public servant. The court lacks 2 competence to take cognizance in certain
types of offences enumerated therein. The legislative intent behind such a
provision has been that an individual should not face criminal prosecution
instituted upon insufficient grounds by persons actuated by malice, ill-will or
frivolity of disposition and to save the time of the criminal courts being
wasted by endless prosecutions. This provision has been carved out as an
exception to the general rule contained under Section 190 Cr.PC that any person
can set the law in motion by making a complaint, as it prohibits the court from
taking cognizance of certain offences until and unless a complaint has been
made by some particular authority or person. Other provisions in the Cr.PC like
sections 196 and 198 do not lay down any rule of procedure, rather, they only
create a bar that unless some requirements are complied with, the court shall
not take cognizance of an offence described in those Sections. (vide Govind
Mehta v. The State of Bihar, AIR 1971 SC 1708;
Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh
& Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh
& Anr., (1998) 2 SCC 391;
Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh
Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119).
The test of whether there is evasion or non-compliance of Section
195 Cr.PC or not, is whether the facts disclose primarily and essentially an
offence for which a complaint of the court or of a public servant is required.
In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and
Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court
held that the provisions of this Section cannot be evaded by describing the
offence as one being punishable under some other sections of IPC, though in
truth and substance, the offence falls in a category mentioned in Section 195
Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it
or by putting a wrong label on it.
In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168,
this Court considered the matter at length and held as under :
of Section 195 CrPC are mandatory and no court has jurisdiction to take
cognizance of any of the offences mentioned therein unless there is a complaint
in writing as required under that section."
In Sachida Nand Singh & Anr. v. State of Bihar & Anr.,
(1998) 2 SCC 493, this Court while dealing with this issue observed as under :
..Section 190 of the Code empowers "any magistrate of the first
class" to take cognizance of "any offence" upon receiving a
complaint, or police report or information or upon his own knowledge. Section
195 restricts such general powers of the magistrate, and the general right of a
person to move the court with a complaint to that extent curtailed. It is a
well- recognised canon of interpretation that provision curbing the general
jurisdiction of the court must normally receive strict interpretation unless
the statute or the context requires otherwise." (Emphasis supplied) 2
In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court
considered the nature of the provisions of Section 195 Cr.PC. In the said case,
cognizance had been taken on the police report by the Magistrate and the
appellant therein had been tried and convicted, though the concerned public
servant, the Tahsildar had not filed any complaint. This Court held as under :
"The cognizance of the case was therefore wrongly assumed by
the court without the complaint in writing of the public servant, namely, the
Tahsildar in this case. The trial was thus without jurisdiction ab initio and
the conviction cannot be maintained. The appeal is, therefore, allowed and the
conviction of the appellant and the sentence passed on him are set aside."
(Emphasis added) 25 Thus, in view of the above, the law can be summarized to
the effect that there must be a complaint by the pubic servant whose lawful
order has not been complied with. The complaint must be in writing. The
provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would
vitiate the prosecution and all other consequential orders. The Court cannot
assume the cognizance of the case without such 2 complaint. In the absence of
such a complaint, the trial and conviction will be void ab initio being without
Learned counsel for the appellants have submitted that no charge
could have been framed under Section 188 IPC in the absence of a written
complaint by the officer authorised for that purpose, the conviction under
Section 188 IPC is not sustainable. More so, it falsifies the very genesis of
the case of the prosecution as the prohibitory orders had not been violated, no
subsequent incident could occur. Thus, entire prosecution case falls.
Undoubtedly, the law does not permit taking cognizance of any
offence under Section 188 IPC, unless there is a complaint in writing by the
competent Public Servant. In the instant case, no such complaint had ever been
filed. In such an eventuality and taking into account the settled legal
principles in this regard, we are of the view that it was not permissible for
the trial Court to frame a charge under Section 188 IPC. However, we do not
agree with the further 2 submission that absence of a complaint under Section
195 Cr.PC falsifies the genesis of the prosecution's case and is fatal to the
entire prosecution case. There is ample evidence on record to show that there
was a prohibitory order; which had been issued by the competent officer one day
before; it had been given due publicity and had been brought to the notice of
the public at large; it has been violated as there is no denial even by the
accused persons that there was no `Rasta Roko Andolan'. Unfortunately, the
agitation which initially started peacefully turned ugly and violent when the
public transport vehicles were subjected to attack and damage. In such an
eventuality, we hold that in case the charges under Section 188 IPC are
quashed, it would by no means have any bearing on the case of the prosecution,
so far as the charges for other offences are concerned.
The submission on behalf of the appellants that two crimes bearing
Nos. 188 and 190 of 2000 could not be clubbed together, has also no merit for
the simple reason that if the cases are considered, keeping in view the
totality of the 2 circumstances and the sequence in which the two incidents
occurred, taking into consideration the evidence of drivers and
conductors/cleaners of the vehicles involved in the first incident and the
evidence of C. Ramasundaram V.A.O., (PW.87), we reach the inescapable
conclusion that the second occurrence was nothing but a fall out of the first
damage caused to the public transport vehicles and the consequential burning of
the University bus remained part of one and the same incident. Merely because
two separate complaints had been lodged, did not mean that they could not be
clubbed together and one charge sheet could not be filed (See : T.T. Antony v.
State of Kerala & Ors. (2001) 6 SCC 181).
Identification Parade :
In Lal Singh & Ors v. State of U.P., AIR 2004 SC 299, this
Court held that the court must be conscious of the fact that the witnesses
should have sufficient opportunity to see the accused at the time of occurrence
of the incident. In case the witness has ample opportunity to see the accused
before 2 the identification parade is held, it may adversely affect the trial
and in that case, the evidence as a whole is to be considered. The prosecution
should take precautions and should establish before the Court that right from
the day of his arrest, the accused was kept "baparda" so as to rule
out the possibility of his face being seen while in police custody.
In Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420, this
Court held that the object of conducting Test Identification Parade is to
enable witnesses to satisfy themselves that the accused whom they suspect is
really one who was seen by them in connection with commission of crime and to
satisfy investigating authorities that suspect is really the person whom
witnesses had seen in connection with said occurrence. It furnishes an
assurance that the investigation is proceeding on right lines, in addition to
furnishing corroboration of the evidence to be given by the witness later in
court at the trial. Therefore, the Test Identification Parade is primarily
meant for investigation purposes. (vide Malkhan Singh v. State of M.P., AIR
2003 SC 2669; Ankush Maruti 2 Shinde & Ors. v. State of Maharashtra, (2009)
6 SCC 667;
Jarnail Singh & Ors. v. State of Punjab, (2009) 9 SCC 719).
position would be entirely different when the accused or culprit who stands
trial has been seen a number of times by the witness, as it may do away with
the necessity of identification parade. Where the accused has been arrested in
presence of the witness or accused has been shown to the witness or even his
photograph has been shown by the Investigating Officer prior to Test
Identification Parade, holding an identification parade in such facts and
circumstances remains inconsequential. (vide Shaikh Umar Ahmed Shaikh &
Anr. v. State of Maharashtra, AIR 1998 SC 1922; Lalli @ Jagdeep Singh v. State
of Rajasthan, (2003) 12 SCC 666;
Sab & Anr. v. State of Karnataka, (2004) 3 SCC 106; Maya Kaur Baldevsingh
Sardar & Anr. v. State of Maharashtra, (2007) 12 SCC 654; and Aslam @
Deewan v. State of Rajasthan, (2008) 9 SCC 227).
In Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) 12 SCC
512, this Court placed reliance upon its earlier judgment in D. Gopalakrishnan
v. Sadanand Naik & Ors., AIR 2004 SC 4965, and held that if the photograph
of the accused has been shown to the witness before the Test Identification
Parade, the identification itself looses its purpose. If the suspect is
available for identification or for video identification, the photograph should
never be shown to the witness.
Holding the Test Identification Parade is not a substantive piece
of evidence, yet it may be used for the purpose of corroboration; for believing
that a person brought before the Court is the real person involved in the
commission of the crime. However, the Test Identification Parade, even if held,
cannot be considered in all the cases as trustworthy evidence on which the
conviction of the accused can be sustained. It is a rule of prudence which is
required to be followed in cases where the accused is not known to the 3
witness or the complainant. (Vide State of H.P. v. Lekh Raj AIR 1999 SC 3916).
In Mulla & Anr. v. State of Uttar Pradesh, (2010) 3 SCC 508,
this Court placed reliance on Matru @ Girish Chandra v. The State of Uttar
Pradesh, AIR 1971 SC 1050;
Santokh Singh v. Izhar Hussain & Anr., AIR 1973 SC 2190 and observed as
under :- "The evidence of test identification is admissible under Section
9 of the Indian Evidence Act. The Identification parade belongs to the stage of
investigation by the police. The question whether a witness has or has not
identified the accused during the investigation is not one which is in itself
relevant at the trial. The actual evidence regarding identification is that
which is given by witnesses in Court.
no provision in the Cr.P.C.
the accused to demand that an identification parade should be held at or before
the inquiry of the trial. The fact that a particular witness has been able to
identify the accused at an identification parade is only a circumstance
corroborative of the identification in Court."
In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, a
Constitution Bench of this Court has suo moto examined the validity of Section
22 of Terrorist and Disruptive Activities (Prevention) Act, 1987 and held that:
the evidence regarding the identification on the basis of a photograph is to be
held to have the same value as the evidence of a test identification parade, we
feel that gross injustice to the detriment of the persons suspected may
Court, thus, struck down the provision of Section 22 of the said Act.
The said judgment was considered by this Court in Umar Abdul
Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC
2562, and the Court observed that in the said case, the evidence of a witness
regarding identification of a proclaimed offender involved in a terrorist case
was in issue. The courts below had taken a view that evidence by showing
photographs must have the same value as evidence of a Test Identification
Parade. The Court 3 distinguished the aforesaid case on facts. The Court
further held that the court must bear in mind that in a case where the accused
is not a proclaimed offender and the person who had taken the photographs was
making deposition before the court was being examined by the prosecution as a
witness, and he identified the accused in the court, that may be treated as a
substantive evidence. However, courts should be conscious of the fact that
during investigation, the photograph of the accused was shown to the witness
and he identified that person as a one whom he saw at the relevant time.
Thus, it is evident from the above, that the Test Identification
Parade is a part of the investigation and is very useful in a case where the
accused are not known before-hand to the witnesses. It is used only to
corroborate the evidence recorded in the court. Therefore, it is not
actual evidence is what is given by the witnesses in the court. The Test
Identification Parade provides for an assurance that the investigation is
proceeding in the right direction and it enables the witnesses to satisfy
themselves 3 that the accused whom they suspect is really one who was seen by
them at the time of commission of offence. The accused should not be shown to
any of the witnesses after arrest, and before holding the Test Identification
Parade, he is required to be kept "baparda".
In the Test Identification Parades held in the Jail, Nedu (A.2)
was identified by P. Kandasamy (PW.4); N. Jagannathan (PW.5); G. Gayathiri
(PW.11); N. Thilagavathi (PW.13); and S. Anitha (PW.14). Madhu (A.3) was
identified by Dr. Latha (PW.1); and Akila (PW.2). C. Muniappan (A.4) was
identified by N. Jagannathan (PW.5); S. Anitha (PW.14); and B. Kamal (PW.86).
In the court, Nedu (A.2) was identified by P. Kandasamy (PW.4);
Jaganathan (PW.5); G. Gayathiri (PW.11); Thilagavathi (PW.13); and Anitha
(PW-14). Madhu (A.3) was identified by Dr. Latha (PW.1); Akila (PW.2);
Jaganathan (PW.5); G. Gayathiri (PW.11); and Suganthi (PW.12). C. Muniappan
(A.4) 3 was identified by Kandasamy (PW.4); Jaganathan (PW.5); and Anitha
Thus, it is evident that all the accused for whom Test
Identification Parades were conducted were identified by some of the witnesses
in the jail. They were also identified by some of the eye witnesses/injured
witnesses in the court.
Sushil Kumar, learned senior counsel appearing for the appellants raised an
objection that the entire proceedings of identification on 22.2.2000 had been
concluded within a short span of 2 hours and 25 minutes. Eighteen witnesses
were there, having three rounds each. Therefore, one round was completed in
three minutes, i.e., the Test Identification Parade was conducted in full haste
and thus, could not be treated to be a proper identification.
It is evident from the evidence of Shri Kalaimathi, Judicial
Magistrate (PW.89), who conducted the Test Identification Parade, that all the
witnesses had reached the Central Prison, Salem, before 10.30 a.m. All 3
preparations/arrangements had been made in advance by the Jail authorities as
per direction of the said officer.
of standing of the accused along with other inmates in jail of the same height
and complexion had already been made. There had been no haste or hurry on the
part of Shri Kalaimathi, Judicial Magistrate (PW.89) to conclude the
proceedings. More so, for reasons best known to the defence, no question had
been asked to the said Judicial Magistrate (PW.89) in his cross-examination as
to how he could conclude the said proceedings within such a short span of time.
Thus, the submission is not worth consideration.
In court, B. Kamal (PW.86) did not support the case of the
prosecution as he deposed that during the identification he was forced by the
police to identify C. Muniappan (A.4) by showing his photograph only. He was
The trial Court and the High Court have considered the issue
elaborately and discussed the statements made by the prosecution witnesses in
the court, along with the fact of 3 identification by the witnesses in the Test
Identification Parades. Both the Courts came to the conclusion that
identification of A.2 to A.4 by the witnesses, if examined, in conjunction with
the evidence of the Judicial Magistrate, R. Kalaimathi, (PW.89) and his
reports, particularly, the Exh. P.137 and P.142, leave no room for doubt
regarding the involvement of A.2 to A.4 in the crime. We do not find any cogent
reason to take a view contrary to the same. Not supporting the prosecution's
case by B. Kamal (PW.86) would not tilt the balance of the case in favour of
Serious issues have been raised by learned senior counsel
appearing for the appellants, submitting that inquest report was defective as
there has been much irregularity in the inquest itself. Undoubtedly, three Investigating
Officers, namely, T. Shanmugaiah, Police Inspector (PW.116); S. Palanimuthu
(PW.121); and John Basha (PW.122) had conducted the investigation at the
initial stage. The occurrence was so ugly and awful that the I.Os. had
conducted the investigation under great anxiety and tension.
seizure memos were also prepared in the same state of affairs. Therefore, when
the investigation had been conducted in such a charged atmosphere, some
irregularities were bound to occur. There is ample evidence on record to show
that after burning of the University bus, when the students came to know that
three girls had been charred and large number of girl students had suffered
burn injuries, they became so violent that they damaged the ambulance which had
been brought to take bodies of the deceased girls for conducting autopsy. The
State Authorities, after keeping all these factors in mind and realizing that
the investigation had not been conducted in proper manner, had taken a decision
to transfer the investigation to the CBCID. Therefore, the irregularities
committed in the investigation by the earlier I.Os.
little relevance on the merits of the case. The evidence collected by the said
three I.Os. was not worth placing reliance on and has rightly been not relied
upon by the subsequent Investigating Officer.
There may be highly defective investigation in a case.
it is to be examined as to whether there is any lapse by the I.O. and whether
due to such lapse any benefit should be given to the accused. The law on this
issue is well settled that the defect in the investigation by itself cannot be
a ground for acquittal. If primacy is given to such designed or negligent
investigations or to the omissions or lapses by perfunctory investigation, the
faith and confidence of the people in the criminal justice administration would
be eroded. Where there has been negligence on the part of the investigating
agency or omissions, etc. which resulted in defective investigation, there is a
legal obligation on the part of the court to examine the prosecution evidence
de hors such lapses, carefully, to find out whether the said evidence is
reliable or not and to what extent it is reliable and as to whether such lapses
affected the object of finding out the truth. Therefore, the investigation is
not the solitary area for judicial scrutiny in a criminal trial.
conclusion of the trial in the case cannot be allowed to depend solely on the
probity of investigation. (Vide Chandra Kanth Lakshmi v. State of Maharashtra,
AIR 1974 SC 220;
Singh v. State of Madhya Pradesh, (1995) 5 SCC 518;
Bihari Yadav v. State of Bihar, AIR 1998 SC 1850;
Yadav v. State of Bihar, AIR 1999 SC 644; State of Karnataka v. K. Yarappa
Reddy, AIR 2000 SC 185; Amar Singh v. Balwinder Singh, AIR 2003 SC 1164;
Allarakha K. Mansuri v. State of Gujarat, AIR 2002 SC 1051; and Ram Bali v.
State of U.P., AIR 2004 SC 2329).
Shri Sushil Kumar, learned senior counsel has raised the issue
vehemently that arrest of C. Muniappan (A.4) is totally false. However, the
evidence on record reveals that he was arrested at 1.30 a.m. on 3.2.2000, as is
evident from the evidence of D. Poongavanam (PW.108), according to which when
he was attending patrol duty along with other police officials on the highway
from Dharmapuri to Tirupathur, near P. Mottupatti lake bridge, he got
information that some one was present beneath the bridge. Thus, the said
witness went to the place along with the other officers and he was taken into
police custody in Crime No.115/2000 of Mathikonepalayam 4 Police Station under
Section 151 Cr.P.C. read with Section 7(1)(A) of C.L. Act, and thus he was sent
to jail. He had been released on bail on 9.2.2000 and the I.O. had been
searching for him and he was arrested at New Bus Stand, Salem, where the
Dharmapuri bus was to be parked, by P. Krishnaraj (PW.109). He tendered a
confessional statement which was recorded in presence of Revenue Inspector,
Manickam and Village Administrative Officer, C. Ramasundaram (PW.87).
been no cross-examination independently on behalf of A.4 on this issue. Even in
cross-examination on behalf of other accused nothing has been elicited qua
irregularity or improbability of the arrest of A.4. Therefore, we do not see
any reason to disbelieve the arrest of C. Muniappan (A.4) as shown by the I.O.
So far as the issue of damage to the buses and the main incident
of setting the bus on fire are concerned, both the courts have proceeded on the
finding, after appreciating the entire evidence on record, that there was no
common object between Nedu @ Nedunchezhian (A.2), Madhu @Ravindran 4 (A.3) and
C. Muniappan (A.4) and the other accused regarding murder of the students and
burning of the bus. Therefore, all of them had been convicted under different
sections. However, the High Court directed the sentence to run concurrently so
far as A.1, A.5 to A.14, A.16 to A.21, A.23 to A.26 and A.28 to A.31 are
concerned. There has been sufficient material to show participation in the
"Rasto Roko Andolan" and indulging in the incident of damaging the
local route bus. Both courts have recorded the concurrent findings of fact in
also gone through the evidence. Their presence is established on the spot and
we do not see any reason to interfere with the concurrent findings of fact
recorded in that respect. We do not find any material on record, which may
warrant interference with the said findings.
So far as A.2 to A.4 (Nedu, Madhu and C. Muniappan respectively)
are concerned, the Trial Court recorded the following findings of fact:-
"Accused 2 and 3 had poured petrol into the bus through the front door
steps and set fire to it resulting in the death of the 4 abovesaid three
students and causing injuries to some of the students. Knowing that students
are inside the bus, they had set fire to the bus as stated above, knowing fully
well that some of the students or all the inmates of the bus would meet their
death inside the bus. Nobody could deny this fact. There was clear intention on
the part of A2 and A3 to kill the inmates of the bus and thus A2 and A3 have
murdered three girl students with the intention of killing them. Hence A2 and
A3 are liable to be punished u/s 302 IPC (3 counts)............
of the 4th accused in the occurrence place has been amply proved.
the fact that he gave matchbox to A2 to set fire to the bus had not been
established, yet the fact that he aided A2 and A3 to come to the occurrence
place in his motor cycle after the occurrence is over, is clearly proved,
because he was the person who drove the motor cycle and thus aided A2 and A3 in
the commission of the offence u/s 4 of the TNP (PDL) Act and 302 IPC and 114
IPC could be invoked in this case since as per Section 107 IPC vide third
definition whoever intentionally aids by any act or illegal omission the doing
of the thing is an offender as defined in 107 IPC.
Muniappan has committed the offences punishable u/s 4 of TNP (PDL) Act r/w 114
IPC and 302 IPC r/w 114 IPC (3 counts).
the High Court after appreciating the evidence on record found that :- 4
"The identification of the A2 to A4 by the witnesses coupled with the
evidence of the learned Magistrate PW-89 and the reports of PW89 produced in
Exs. P-137 and P-142 would go a long way to show that A-2 to A- 4 were involved
in the crime as spoken to by the prosecution witnesses."
record, it is evident that so far as A2 to A4 are concerned, their involvement
in the incident has been substantiated by the evidence of
PWs.61,62,63,97&99 (Santhamurthy, Madhaiyan, G. Manickam, Udayasuriyan and
R. Karunanidhi respectively) as some of those said witnesses had identified
D.K. Rajendran, Nedu, Madhu, C. Muniappan, D.K. Murugesan, D.A. Dowlath Basha,
(A.1 to A.6 respectively), K. Ravi (A.9), Sampath (A.13), K. Chandran (A.21),
R. Chellakutty (A.22), K. Mani (A.24), K. Veeramani (A.30) & Udayakumar
(A.31). All the witnesses have also deposed that some of the members had been
in the demonstration while K. Mani (A.24) damaged the Hosur bus stand. M.
Kaveri (A.23) prevented the people from dousing the fire.
In view of the fact that Udayasuriyan (PW.97) and R.
(PW.99) had not been dis-believed by the court below and their evidence was
found natural and trustworthy as they did not falsely implicate all the accused
for causing damages to the bus and they were local and independent witnesses
and knowing some of the accused persons; the High Court held as under:
both the witnesses have spoken about the demonstration and implicated most of
the accused, they have spoken only about Nedu (A.2) for having set fire to the
Route No.7-B town bus and there is absolutely no material to show as to why
both PWs 97 & 99 should falsely implicate Nedu (A.2). Equally, for the same
reason, the implication of M. Kaveri (A.23) for having prevented the persons in
and around the bus from dousing the fire also cannot be dis-believed. There is
ample evidence to show that Nedu (A.2) and M. Kaveri (A.23) were part of the
demonstrators as has been stated by some of the witnesses. In fact, PW.62
stated that even when he saw the demonstrators sitting on the road, he also saw
the damaged buses parked nearby. None of the witnesses have implicated any of the
accused except Nedu (A.2) and M. Kaveri (A.23) for causing damage to the buses.
Though, PW.97 implicated K. Mani (A.24) as well for causing damage to the bus,
A.24 was not spoken to by PW.99. In the absence of any corroboration, it cannot
be held that K. Mani (A.24) also damaged the bus.
Therefore, the presence of the accused had also been established
by press and media persons who were present at the scene of the occurrence, as
well as by the complainant, and those persons had not named all the accused for
setting the bus on fire and only few of them had been involved. But as the said
persons were not having any arm/weapon, the offence of Section 148 IPC was not
found sustainable and thus, their conviction under Section 148 IPC has been
rightly set aside. Some of the accused had been convicted under Section 147
It has been submitted that the witnesses PWs. 1, 2 and 4 have not
disclosed the identities of the accused at the initial stage of investigation.
Therefore, they cannot be relied upon for conviction of A.2 to A.4. However, it
has been proved that there was no initial investigation and therefore the
question of disclosing identity of the accused to Shri Shanmugaiah (PW.116),
who had done the initial investigation, could not arise. More so, as has been
mentioned hereinabove, the initial 4 investigation was conducted in a panicked
situation, therefore, the government thought it proper to scrap it out and hand
over to a higher officer through the CBCID. The presence of A.2 to A.4 with the
other accused at the place of agitation stands established.
R. Karunanidhi (PW.99) had spoken about A.2 to A.4. He is an
advocate and belongs to Dharamapuri. He has deposed that Nedu (A.2) had set the
fire to the Route No.7-B town bus.
also corroborated the evidence of Udayasuriyan (PW.97) that while the bus was
in flames, some persons tried to douse the fire but they were prevented by M.
(A.2) remained present in the earlier occurrence as well as the subsequent
We cannot ignore one more fact, namely, that C. Muniappan (A.4)
had kept the engine of the motor cycle (M.O.5) running only to escape from the
scene of occurrence along with Nedu (A.2) and Madhu (A.3) after the occurrence.
fact would also indicate the mind of the accused to 4 commit the offence and to
flee from the scene of occurrence to avoid the clutches of law. But for PWs 1,
2, 4 & 5 and some other students who became alert immediately after the bus
was set on fire, the consequence could have been disastrous and more deaths
could have occurred.
P. Kandasamy, the bus driver (PW.4) has deposed that at the time
of incident, a bike coming from the right side of the bus stopped near the left
side headlight at a distance of about 12 ft. Three persons were riding on the
said motor cycle. Two persons who were sitting on the rear seat of the motor
cycle came towards the bus and each of them was carrying a yellow coloured can.
One of them came to the left side of the bus and sprinkled liquid contained in
the can inside the bus through the first window shutter. The other poured the
liquid from the can through the second window. From the smell, he could
understand that they had sprinkled petrol. Dr. Latha (PW.1) and Akila (PW.2)
begged those persons and pleaded not to do any harm. At that time there was a
shout "set fire on them, then only they will realise". Students
started coming out of the 4 bus from the front entrance. The bus was put to
fire immediately. The persons who poured the petrol proceeded towards the motor
cycle and escaped.
P. Kandasamy (PW.4) has identified Nedu (A.2) and C. Muniappan
(A.4) in the court and pointed out that C. Muniappan (A.4) was the person who
was sitting on the motor cycle, keeping engine running at the time of
occurrence. He also disclosed that the number of the maroon coloured motor
cycle was TN-29-C-2487 and identified the vehicle parked outside the court. In
cross-examination again and again he was asked large number of questions, but
his deposition remained trustworthy throughout.
The deposition of N. Jagannathan, cleaner (PW.5) corroborated the
evidence of P. Kandasamy (PW.4). He identified A.2 to A.4. He also identified
the motor cycle but could not identify the colour and registration number. He
has identified the accused in the Test Identification Parade. He has denied the
suggestion that he had ever been shown any 4 photograph of either of A.2 to
A.4. He deposed that A.2 to A.4 were the persons who sprinkled the petrol
inside the bus and he had given a version of events explaining how the girl
students got burn injuries and some of them died because they could not come
out of the vehicle. He denied the suggestion that he could identify A.2 to A.4
as he had been shown their photographs.
Dr. Latha (PW.1) had deposed that she had seen the man who was
pouring the petrol. She had identified A.3 in the court as the man who
sprinkled petrol in the bus. She deposed that it was A.3 who had shouted
"set fire to all, then only they will realize" and at that time there
was a fire from the front left side.
Akila (PW.2) had given same version and corroborated the evidence
of Dr. Latha (PW.1), P. Kandasamy (PW.4) and N. Jagannathan (PW.5) and deposed
that petrol was sprinkled near the seat which was occupied by PW.5. She
identified Madhu (A.3) as the person who sprinkled the petrol and stated 5 that
another person lit the match stick and threw it in the bus and the bus was
burnt into flames. Three girl students were charred to death.
Preetha (PW.8), a B.Sc. 2nd year student, aged 19 years had
deposed that she was sitting on the double seat just before the front entrance
on the window side. A man sprinkled petrol from a yellow can which he was
holding on the seat in front of her seat through the window shutter. At the
same time another person came and poured petrol inside the bus through the
window shutter which was near the first seat.
and 2 begged them not to harm students. However, in the meantime, the front
side of the bus caught fire. She had suffered some burn injuries over her left
foot. She had identified Madhu (A.3) in the court as a person who had sprinkled
petrol. She denied the suggestion that she was deposing falsely or identified
the accused D.K. Rajendran (A.1) and Nedu (A.2) as she had been tutored by the
Gayathri G. (PW.11), another injured witness identified Nedu (A.2)
and Madhu (A.3) in the Court. She explained how the petrol was sprinkled by A.2
and A.3 and how PWs. 1 and 2 begged them not to harm the girls. However, at the
same time, there was fire at the place where the petrol had been poured.
denied any suggestion made by the defence that she was deposing falsely or she
had identified any of the accused by showing their photographs.
R. Suganthi (PW.12) another injured witness had given the same
version. She had identified Madhu (A.3) in the court as a person who had
sprinkled the petrol inside the bus and N. Thilagavathi (PW.12) another injured
witness corroborated the genesis of the case as given by the other witnesses.
She identified Nedu (A.2) in the court as a person who had sprinkled the petrol
and denied all suggestions made by the defence.
S. Anitha (PW.14) supported the prosecution version thoroughly and
stated that two persons came to the front of 5 the bus and sprinkled the petrol.
She had identified A.2 to A.4 in Test Identification Parade denying all
suggestions made by the defence.
A large number of injured witnesses (students) were examined. They
supported the prosecution case but did not identify any person either in the
Test Identification Parade or in the Court. M. Kalaivani, M. Krithika, G.
Gayathiri and R. Suganthi (PWs.9 to 12), R. Banuchitra, Chitra, C. Susma, S. Thilagam,
P.T. Sutha, M. Vasantha Gokilam, R. Abirami, P.
and S. Gayathiri (PWs.15 to 23), K. Sumathi, M. Deivani and N. Anbuselvi (PWs.
26 to 28) got injuries, and were treated in the hospital. They were examined in
seating position in the bus had been such that they could not see as who had
sprinkled the petrol in the bus.
could see the motorcycle or C. Muniappan (A.4) on the scene. They did not
depose anything in this regard.
R. Maruthu (PW.51), photographer, deposed that he was contacted by
Dowlat Basha (A.6) to cover the "Road Roko Agitation" at
Illakkiampatti in stills and video. He reached 5 there on a motorcycle. There
he found D.K. Rajendran (A.1) engaged in an agitation with four or five
persons. They were raising slogans. He photographed and videographed the spot
of the agitation. He deposed that along with (A.1), Muthu (A.8), Ravi (A.9),
A.P. Murugan (A.11) and Vadivelu (A.12) were also present there. Their
photographs and negatives were exhibited in the court. He also photographed the
reached the spot when the bus was burning. Students were shouting. The bus was
full of black smoke. Some persons were trying to break open the rear side glass
panes and some were dragging the girls from the rear side shutters.
spread from the front portion and engulfed the whole bus to the rear and he had
been taking photographs continuously. These photographs were exhibited as
Ex.P.78 and Ex.P.80. He watched the video prepared by him in the court and
identified the same. In the cross-examination, he denied knowing the accused
persons, particularly, Madhu (A.3), Velayutham (A.7), Sampath (A.13), Selvam
(A.26), Selvaraj (A.28) and Veeramani (A.30). However, they were shown in the
photographs taken by him. He was declared 5 hostile.
The shirt (M.O.4), which was worn by Nedu (A.2) at the time of incident,
had been identified by most of the eye- witnesses in the court. It is stated
that this shirt belonged to A.2.
In Aloke Nath Dutta & Ors. v. State of West Bengal, (2007) 12
SCC 230, this Court disapproved the exhibiting and reading of confessional
statement of the accused before the police as a whole before the court, as it
had not been brought on record in a manner contemplated by law. The Court held
as under :
does not envisage taking on record the entire confession by making it an exhibit
incorporating both the admissible or inadmissible part thereof together. We
have to point out that only that part of confession is admissible, which could
be leading to the recovery of dead body and/or recovery of
confession proceeded to state even the mode and manner in which they allegedly
killed. It should not have been done. It may influence the mind of the
While deciding the said case, this Court placed reliance on the
judgments in Pulukuri Kotayya v. King-Emperor, AIR 1947 PC 67; the State of
Maharashtra v. Damu Gopinath Shinde & Ors., AIR 2000 SC 1691; and Anter
Singh v. State of Rajasthan, AIR 2004 SC 2865.
Thus, it is evident from the above that only the admissible part
of extra-judicial confessional statement can be exhibited. The statement as a
whole, if exhibited and relied upon by the prosecution, leads to the
possibility of the court getting prejudiced against the accused. Thus, it has
to be avoided.
In the instant case, as has rightly been pointed out by Shri
Sushil Kumar, learned senior counsel that confessional statement of C.
Muniappan (A.4) had been exhibited in the court in its full text. It was
neither required or warranted nor was permissible. However, in view of the fact
that there had been other sufficient material on record to show his involvement
in the crime, we are of the opinion that full 5 exhibition of the statement had
not prejudiced the case against him.
It is settled legal proposition that the evidence of a prosecution
witness cannot be rejected in toto merely because the prosecution chose to
treat him as hostile and cross examine him. The evidence of such witnesses
cannot be treated as effaced or washed off the record altogether but the same
can be accepted to the extent that their version is found to be dependable on a
careful scrutiny thereof. (vide Bhagwan Singh v. The State of Haryana, AIR 1976
SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v.
State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of
Madhya Pradesh, AIR 1991 SC 1853).
In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC
2766, this Court held that evidence of a hostile witness would not be totally
rejected if spoken in favour of the prosecution or the accused but required to
be subjected to 5 close scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defence can be relied upon. A
similar view has been reiterated by this Court in Balu Sonba Shinde v. State of
Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab,
(2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P.,
AIR 2006 SC 951; Sarvesh Naraian Shukla v. Daroga Singh & Ors., AIR 2008 SC
320; and Subbu Singh v. State, (2009) 6 SCC 462.
law can be summarised to the effect that the evidence of a hostile witness
cannot be discarded as a whole, and relevant parts thereof which are admissible
in law, can be used by the prosecution or the defence.
instant case, some of the material witnesses i.e. B. Kamal (PW.86); and R.
Maruthu (PW.51) turned hostile. Their evidence has been taken into
consideration by the courts below strictly in accordance with law.
omissions, improvements in the evidence of the PWs have been pointed out by the
learned counsel for the appellants, but we find them to be very trivial in
It is settled proposition of law that even if there are some
omissions, contradictions and discrepancies, the entire evidence cannot be
disregarded. After exercising care and caution and sifting through the evidence
to separate truth from untruth, exaggeration and improvements, the court comes
to a conclusion as to whether the residuary evidence is sufficient to convict
the accused. Thus, an undue importance should not be attached to omissions,
contradictions and discrepancies which do not go to the heart of the matter and
shake the basic version of the prosecution's witness. As the mental abilities
of a human being cannot be expected to be attuned to absorb all the details of
the incident, minor discrepancies are bound to occur in the statements of
witnesses. (vide Sohrab & Anr. v. The State of M.P., AIR 1972 SC 2020;
State of U.P. v. M.K. Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai Hirji Bhai
v. State of Gujarat, AIR 1983 SC 753; State of Rajasthan v. Om Prakash AIR 2007
SC 2257; Prithu @ Prithi Chand & Anr. v. State of Himachal Pradesh, (2009)
11 SCC 588; State of U.P. v. 5 Santosh Kumar & Ors., (2009) 9 SCC 626; and
State v. Saravanan & Anr., AIR 2009 SC 151).
The guidelines laid down by this Court for awarding death sentence
in Bachan Singh v. State of Punjab, AIR 1980 SC 898, may be culled out as
extreme penalty of death may be inflicted in gravest cases of extreme
imposing death sentence the circumstances of the offender also require to be
taken into consideration along with the circumstances of the crime;
sentence be imposed only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant circumstances of the crime;
and (d) Extreme penalty can be imposed after striking the balance between
aggravating and mitigating circumstances found in the case.
the murder has been committed after previous planning and involves extreme
brutality; or 6 (b) If the murder involves exceptional depravity.
the offence was committed under the influence of extreme mental or emotional
age of the accused. If the accused is young or old, he shall not be sentenced
probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society;
probability that the accused can be reformed and rehabilitated. The State shall
by evidence prove that the accused does not satisfy the conditions (c) and (d)
(e) That in
the facts and circumstances of the case the accused believed that he was
morally justified in committing the offence;
the accused acted under the duress or domination of another person; and (g)
That the condition of the accused showed that he was mentally defective and
that the said defect impaired his capacity to appreciate the criminality of his
In Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957,
this Court expanded the "rarest of rare" formulation 6 beyond the
aggravating factors listed in Bachan Singh (supra) to cases where the
"collective conscience" of a community is so shocked that it will
expect the holders of the judicial powers to inflict the death penalty
irrespective of their personal opinion as regards desirability or otherwise of
retaining the death penalty, and stated that in these cases such a penalty
should be inflicted. But the Bench in this case underlined that full weightage
must be accorded to the mitigating circumstances in a case and a just balance had
to be struck between aggravating and mitigating circumstances. The Court
further held that the relevant factors to be taken into consideration may be
motive for, or the manner of commission of the crime, or the anti-social or
abhorrent nature of the crime, such as:- (i) Murder is in extremely brutal
manner so as to arouse intense and extreme indignation of the community.
Murder of a large number of persons of a particular caste, community, or
locality, is committed.
Murder of an innocent child; a helpless woman, is committed.
In Devender Pal Singh v. State of NCT of Delhi, AIR 2002 SC 1661,
this Court referred to both these cases and held that death sentence may be
warranted when the murder is committed in an extremely brutal manner; or for a
motive which evinces total depravity and meanness e.g. murder by hired assassin
for money or reward, or cold blooded murder for gains. Death sentence may also
When the crime is enormous in proportion.
instance, when multiple murders, say of all or almost all the members of a
family or a large number of persons or a particular caste, community, or
locality are committed.
the victim of murder is an innocent child or a helpless woman or old or infirm
person or a person vis-`-vis, whom the murderer is in a dominating position, or
a public figure generally loved and respected by the community."
Atbir v. Govt. of N.C.T. of Delhi, JT 2010 (8) SC 372).
In Mahesh v. State of M.P., AIR 1987 SC 1346, this court
deprecated the practice of taking a lenient view and not imposing the
appropriate punishment observing that it will be a mockery of justice to permit
the accused to escape the extreme penalty of law when faced with such evidence
and 6 such cruel acts. The court held that "To give a lesser punishment to
the appellants would be to render the justice system of this country suspect.
The common man will lose faith in the courts. In such cases, he understands and
appreciates the language of deterrence more than the reformative jargon".
(See also State of Punjab v. Rakesh Kumar, AIR 2009 SC 391; and Sahdev v.
Jaibar @ Jai Dev & Ors., (2009) 11 SCC 798).
v. State of U.P., (2008) 11 SCC 113, this Court placing reliance on Sevaka
Perumal v. State of T.N. AIR 1991 SC 1463, re-iterated the same view observing
as under :
undue sympathy to impose inadequate sentence would do more harm to the justice
system to undermine the public confidence in the efficacy of law and society
could not long endure under such serious threats. It is, therefore, the duty of
every court to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc."
is evident that Criminal Law requires strict adherence to the rule of
proportionality in providing punishment according to the culpability of each
kind of 6 criminal conduct keeping in mind the effect of not awarding just
punishment on the society.
"Rarest of the rare case" comes when a convict would be a menace and
threat to the harmonious and peaceful co- existence of the society. Where an
accused does not act on any spur-of-the-moment provocation and he indulged
himself in a deliberately planned crime and meticulously executed it, the death
sentence may be the most appropriate punishment for such a ghastly crime.
Life imprisonment is the rule and death penalty an exception.
Therefore, the Court must satisfy itself that death penalty would be the only
punishment which can be meted out to a convict. The Court has to consider
whether any other punishment would be completely inadequate and what would be
the mitigating and aggravating circumstances in the case.
always foul, however, the degree of brutality, depravity and diabolic nature
differ in each case.
under which murders take place also differ from case to case and there cannot
be a straitjacket formula 6 for deciding upon circumstances under which death
penalty must be awarded. In such matters, it is not only a nature of crime, but
the background of criminal, his psychology, his social conditions, his mindset
for committing offence and effect of imposing alternative punishment on the
society are also relevant factors.
In the instant case, the girl students of the University, while on
tour had been the victims of a heinous crime at the tail end of their
programme. The appellants may have had a grievance and a right of peaceful
demonstration, but they cannot claim a right to cause grave inconvenience and
humiliation to others, merely because a competent criminal court has handed
down a judicial pronouncement that is not to their liking. A demonstration by
the appellants which had started peacefully, took an ugly turn when the
appellants started damaging public transport vehicles. Damaging the public
transport vehicles did not satisfy them and the appellants became the law unto
themselves. There had been no provocation of any kind by any person whatsoever.
Some 6 of the appellants had evil designs to cause damage to a greater extent
so that people may learn a "lesson". In order to succeed in their
mission, Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran(A.3) and C. Muniappan
(A.4) went to the extent of sprinkling petrol in a bus full of girl students
and setting it on fire with the students still inside the bus. They were fully
aware that the girls might not be able to escape, when they set the bus on
fire. As it happened, some of the girls did not escape the burning bus. No
provocation had been offered by any of the girls. Nedu @ Nedunchezhian (A.2),
Madhu @ Ravindran(A.3) and C. Muniappan (A.4) did not pay any heed to the pleas
made by Dr. Latha (PW1) and Akila (PW2), the teacher, to spare the girls. As a
consequence of the actions of Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran
(A.3) and C. Muniappan (A.4), three girls stood to death and about 20 girls
received burn injuries on several parts of their bodies.
be absolutely no justification for the commission of such a brutal offence.
Causing the death of three innocent young girls and causing burn injuries to
another twenty is an act that shows the highest degree of depravity and
brutality on 6 the part of Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran (A.3)
and C. Muniappan (A.4).
aggravating circumstances in the case of Nedu @ Nedunchezhian (A.2), Madhu @
Ravindran (A.3) and C. Muniappan (A.4) are that this offence had been committed
after previous planning and with extreme brutality. These murders involved
exceptional depravity on the part of Nedu @ Nedunchezhian (A.2), Madhu @
Ravindran (A.3) and C. Muniappan (A.4). These were the murders of helpless,
innocent, unarmed, young girl students in a totally unprovoked situation. No
mitigating circumstances could be pointed to us, which would convince us to
impose a lesser sentence on them. Their activities were not only barbaric but
inhuman of the highest degree. Thus, the manner of the commission of the offence
in the present case is extremely brutal, diabolical, grotesque and cruel. It is
shocking to the collective conscience of society. We do not see any cogent
reason to interfere with the punishment of death sentence awarded to Nedu @
Nedunchezhian (A.2), Madhu @ Ravindran 6 (A.3) and C. Muniappan (A.4) by the
courts below. Their appeals are liable to be dismissed.
So far as
the other appellants are concerned, the maximum sentence to be served by them
as per the Judgment of the High Court is two years. Most of these appellants
have already served more than 14 months of their sentence and they are
presently on bail. The incident occurred on 2.2.2000, so more than ten and a
half years have already elapsed since the incident. These appellants have
already suffered a lot.
their sentences deserve to be reduced.
Before parting with this case, we would like to take note of the
fact that this crime occurred right in the middle of a busy city. Innocent
girls trapped in a burning bus were shouting for help and only the male
students from their University came to their rescue and succeeded in saving
some of them. There were large number of people including the shopkeepers,
media persons and on-duty police personnel, present at the place of the
"Rasta Roko Andolan", which was very close to the place of the
occurrence of the crime, and 6 none of them considered it proper to help in
the common man fails to respond to the call of his conscience, the police
should not have remained inactive. The so-called administration did not bother
to find out why the police did not intervene and assist in the rescue of the
girl students. It is clear that the so-called protectors of the society stood
there and witnessed such a heinous crime being committed and allowed the
burning of the bus and roasting of the innocent children without being
reprimanded for failing in their duty. If the common citizens and public
officials present at the scene of the crime had done their duty, the death of
three innocent young girls could have been prevented.
In view of the above, all the appeals are dismissed. So far as
Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran (A.3) and C. Muniappan (A.4) are
concerned, sentence of death imposed on them is confirmed and the same be
executed in accordance with law.
However, in Criminal Appeal Nos.1632-1634 of 2010 (arising out of SLP (Crl.)
Nos. 1482-1484 of 2008), the sentences are reduced as undergone. All of them
are on bail, their bail bonds stand discharged.
..................................J. (G. S. SINGHVI)