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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 127-130 OF 2008
C. Muniappan & Ors. … Appellants
Vs.
State of Tamil Nadu …Respondents
WITH
CRIMINAL APPEAL NOS.1632-1634 OF 2010
(Arising out of SLP(Crl.) Nos. 1482-1484 of 2008)
D.K. Rajendran & Ors. etc.etc. …Appellants
Vs.
State of Tamil Nadu ….Respondent
JUDGMENT
Dr. B.S. CHAUHAN, J.
1. Leave granted in Special Leave Petition (Criminal) Nos.
1482-1484 of 2008.
2. These appeals have been preferred against the Judgment
and Order dated 6.12.2007 of the High Court of Madras in
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Crl. Appeal Nos. 226, 266 and 267 of 2007, and Death
Sentence Reference in Trial No. 1 of 2007.
3. 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
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parcels of food. Some of the students remained in the bus
itself.
4. 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.
According 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 about it.
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5. 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.
The 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
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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.
They 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).
6. 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.
Nedu (A.2) and Madhu (A.3) went towards the motor bike
which was already kept ready for running by C. Muniappan
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(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.
Some of 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).
7. 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
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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 not mentioned.
A general 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.
8. 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
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prepared a rough sketch and recovered broken glass and brick
pieces from the place under the Seizure Mahazar (Ex. P.109).
The buses 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).
9. 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.
10. 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
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(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.
11. 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
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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.
The said 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 dated 17.11.2003.
12. 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
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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.
In total, 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.
Apart 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.
The 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.
13.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.
Crl. 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.
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On 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.
Conviction and sentence of death against accused Nos. 2
to 4 was confirmed by the High Court along with all other
sentences under different heads.
14. Hence, these seven appeals.
15. 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.
Confessional 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 court.
Two 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.
Identification of the accused was on the basis of the
photographs taken and published by the media. C.
Muniappan (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.
Some of the most material witnesses of the prosecution, like B.
Kamal (PW.86), turned hostile, thus could not be relied upon.
16. Four different versions have been given by the different
witnesses disclosing the genesis of the main incident.
First, as 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.
The 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.
The third 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.
The fourth 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.
Thus, the case of prosecution is not trustworthy.
Thus, in view of the above, appeals deserve to be allowed.
17. 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.
He has 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.
Thus, 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.
1
18. We have considered the rival submissions made by
learned counsel for the parties and perused the records.
Charges under Section 188 IPC:
19. Section 195 Cr.PC reads as under :
“195. 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
……..
except on the complaint in writing of the public
servant concerned or of some other public
servant to whom he is administratively
subordinate;”
20. 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;
Patel 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;
2
K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC
352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah
& Anr., AIR 2005 SC 2119).
21. 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.
2
22. In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000
SC 168, this Court considered the matter at length and held
as under :
“….Provisions 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.”
(Emphasis added)
23. In Sachida Nand Singh & Anr. v. State of Bihar & Anr.,
(1998) 2 SCC 493, this Court while dealing with this issue
observed as under :
“7. ..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
24. 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 jurisdiction.
26. 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.
27. 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.
28. 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 occurrence.
The 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).
Test Identification Parade :
29. 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.
30. 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;
and Jarnail Singh & Ors. v. State of Punjab, (2009) 9 SCC
719).
But the 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;
Dastagir 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).
2
31. 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.
32. 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).
33. 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;
and 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.
There is no provision in the Cr.P.C.
entitling 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.”
3
34. 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:
“If 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
result”.
This Court, thus, struck down the provision of Section 22 of
the said Act.
35. 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.
36. 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 substantive evidence.
The 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”.
37. 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).
38. 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 (PW.14).
39. 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.
Shri 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.
40. 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.
Arrangements 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.
41. 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 declared hostile.
42. 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 the appellants.
43. 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.
3
The 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.
has too 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.
3
44. There may be highly defective investigation in a case.
However, 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.
The 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;
3
Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518;
Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850;
Paras 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).
Arrest of A-4
45. 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).
There has 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.
46. 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 this regard.
We have 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.
47. 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)…………
….Presence of the 4th accused in the
occurrence place has been amply proved.
Though 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.
Hence, A4 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).
Further, 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.”
From the 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.
4
48. In view of the fact that Udayasuriyan (PW.97) and R.
Karunanidhi (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:
“Though, 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.
4
49. 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 IPC.
50. 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.
51. 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.
He has 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. Kaveri (A.23).
Nedu (A.2) remained present in the earlier occurrence as well
as the subsequent occurrence.
52. 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.
The said 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.
53. 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.
54. 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.
55. 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.
56. 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.
57. 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.
58. 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.
PWs. 1 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 police.
5
59. 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.
She denied any suggestion made by the defence that she was
deposing falsely or she had identified any of the accused by
showing their photographs.
60. 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.
61. 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.
62. 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.
Geetha 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 the court.
Their seating position in the bus had been such that they
could not see as who had sprinkled the petrol in the bus.
They could see the motorcycle or C. Muniappan (A.4) on the
scene. They did not depose anything in this regard.
63. 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 burning bus.
He 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.
The fire 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.
64. 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.
65. 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 :
“Law 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 articles…………………………..;
the 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 Court.”
5
66. 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.
67. 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.
68. 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.
Hostile Witness:
69. 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).
70. 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.
Thus, the 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.
In the 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.
Some 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 nature.
5
71. 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).
Death sentence
72. 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 under:
(a) The extreme penalty of death may be
inflicted in gravest cases of extreme
culpability;
(b)While imposing death sentence the
circumstances of the offender also require to
be taken into consideration along with the
circumstances of the crime;
(c) Death 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.
Aggravating circumstances include:
(a) If the murder has been committed after
previous planning and involves extreme
brutality; or
6
(b) If the murder involves exceptional
depravity.
Mitigating circumstances include:
(a) That the offence was committed under the
influence of extreme mental or emotional
disturbance;
(b) The age of the accused. If the accused is
young or old, he shall not be sentenced to
death;
(c) The probability that the accused would not
commit criminal acts of violence as
would constitute a continuing threat to
society;
(d) The 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) above;
(e) That in the facts and circumstances of the
case the accused believed that he was morally
justified in committing the offence;
(f) That 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 conduct.
73. 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.
(ii) Murder of a large number of persons of a
particular caste, community, or locality,
is committed.
(iii) Murder of an innocent child; a helpless
woman, is committed.
6
74. 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 be justified:
“(i) When the crime is enormous in proportion.
For 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.
(ii) When 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.”
(See also Atbir v. Govt. of N.C.T. of Delhi, JT 2010 (8) SC
372).
75. 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).
In Bantu 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 :
“Therefore, 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.”
Thus, it 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.
The “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.
76. 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.
Murder is always foul, however, the degree of brutality,
depravity and diabolic nature differ in each case.
Circumstances 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.
77. 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.
There can 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).
The 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.
Thus, their sentences deserve to be reduced.
78. 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 their rescue.
Even if 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.
79. 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
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sentences are reduced as undergone. All of them are on bail,
their bail bonds stand discharged. These criminal appeals
stand disposed of accordingly.
…………………………….J.
(G. S. SINGHVI)
…………………………….J.
New Delhi, (Dr. B.S. CHAUHAN)
August 30, 2010
advocatemmmohan 
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