TMI Blog2010 (8) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 the part of Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran (A.3) and C. Muniappan (A.4). 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 @ Ravindr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Minister of Tamil Nadu was being broadcast on T.V. and radio, thus, the students and teachers also came to know about it. 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 form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Palanis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adictions in the statements of witnesses in respect of the involvement of the accused and the nature of offences committed by them. The 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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; 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Shinde Ors. v. State of Maharashtra, (2009) 6 SCC 667; and Jarnail Singh Ors. v. State of Punjab, (2009) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Suganthi (PW.12). C. Muniappan (A.4) 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 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 inm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to another twenty is an act that shows the highest degree of depravity and brutality on 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 (A.3) and C. Muniappan (A.4) by the courts below. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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