REPORTABL E

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

J U D G M E N T

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

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

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.

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.

1

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 3

rd

February, 2009, in

respect of some other case and, therefore, his arrest shown on

7

th

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

1

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)

25Thus, 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

2

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

3

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 4

th

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

4

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. 2

nd

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.”

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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

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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.

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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.

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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

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(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.

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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-à-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

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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

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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

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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

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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

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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

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