Full Judgement
C. Muniappan & Ors. Vs. State of Tamil Nadu [2010] INSC 675 (30 August 2010)
Judgment
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 127-130 OF 2008 C. Muniappan & Ors. ... Appellants 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 State of Tamil Nadu ....Respondent
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 2 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 3 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.
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 5 prohibitory order at Illakkiampatti, near the MGR statue on the Salem-Bangalore National Highway, prevented the free flow of traffic and caused nuisance to general public at large.
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 6 (A.4) and escaped from the scene. The fire lit at the front-side of the bus spread backwards. Dr. Latha (PW.1) and Akila (PW.2) (both teachers) managed to get down from the bus from the front door along with some students. Some girl students stretched their heads and hands through the shutters and the boy students pulled them out. However, three students, namely, Kokilavani, Hemalatha and Gayathri could not escape from the burning bus. They were burnt alive inside the bus.
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 7 Penal Code , 1860 (in short the `IPC') and under Sections 3 and 4 of the Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992 (in short as "TNP (PDL) Act") was registered. In the said FIR, the name of C. Muniappan (A.4) was 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 8 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 9 (PW.119) took over the investigation from Shanmugaiah (PW.116). On 6.2.2000, investigation was transferred to the CBCID and R. Samuthirapandi, Additional Superintendent of Police (PW.123), became the Investigating Officer.
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 1 the trial from Krishnagiri to Coimbatore on various grounds, inter-alia, that all the accused were from the AIADMK party and were holding the party posts; most of the witnesses who had been examined had turned hostile, including the complainant C. Ramasundaram; all the accused and most of the witnesses were from the Coimbatore District and thus, they would be won over by the accused. Therefore, conduct of an impartial trial was not possible at Krishnagiri. The High Court allowed the said Transfer Petition vide order dated 22.8.2003 issuing some directions, including the appointment of the Special Public Prosecutor and to have a de-novo trial.
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 3rd February, 2009, in respect of some other case and, therefore, his arrest shown on 7th February, 2009, was only an act of jugglery. The Forensic Report did not support the case of the prosecution that kerosene oil or petrol had been put to set the bus ablaze.
Some of the most material witnesses of the prosecution, like B. Kamal (PW.86), turned hostile, thus could not be relied upon.
16. Four different versions have been given by the different witnesses disclosing the genesis of the main incident.
First, as revealed by the complaint lodged by C. Ramasundaram (PW.87), the incident occurred at 3.30 p.m. on 2.2.2000. According to the complaint, 20 persons named in the F.I.R. armed with wooden sticks and iron rods, shouted slogans and caused damage to the bus. They threatened the 1 girl students, who were travelling in the bus, with dire consequences. Nedu (A.2) and Madhu (A.3) brought the petrol and sprinkled the same inside the bus as well as on the platform. D.K. Rajendran (A.1) ordered that no one should be allowed to get down from the bus and threatened that the bus will be set on fire along with the inmates. Immediately, both Nedu (A.2) and Madhu (A.3) set the bus on fire with match sticks. Suddenly, the fire engulfed the entire bus and all the accused ran away from the scene. Some girls were trapped inside the bus and charred to death. C. Muniappan (A.4) was not named in the first version.
The second version is as per the evidence of P. Kandasamy (PW.4), driver of the vehicle and N. Jagannathan (PW.5), Cleaner. According to them, the incident occurred on 2.2.2000, wherein, two persons came on a motor bike and stopped in front of the bus. One of them sprinkled the petrol through left side window and set the bus on fire and went away on the motorbike.
The third version has been as revealed by the Report (Ex.D.14) submitted by P. Kandasamy (PW.4), Driver, dated 1 7.2.2000, according to which, two persons came on a motor bike and stopped in front of the bus. One of them sprinkled petrol through the left side window and set the bus on fire.
The fourth version is based on the Report (Ex.D.12), dated 6.3.2000, by Dr. Latha (PW.1), according to which, when the bus was parked, at about 2.25 p.m., after two minutes thereof, one person poured the petrol on the front seats and set the bus on fire.
All the aforesaid versions are contradictory to each other.
Thus, the case of prosecution is not trustworthy.
Thus, in view of the above, appeals deserve to be allowed.
17. Per contra, Shri Altaf Ahmad, learned senior counsel appearing for the State, has tried to defend the prosecution's case submitting that the contradictions were trivial in nature.
He has submitted that framing of charges under Section 188 IPC in absence of written complaint of the public servant concerned, could not be fatal to the prosecution's case. The entire prosecution case cannot be discarded merely on the grounds of improperly framing the charges under Section 188 1 I.P.C. Clubbing the two crimes, i.e., 188/2000 and 190/2000 did not cause any prejudice to any of the accused. Both the crimes were found to be parts of the same incident. The court has to examine the facts in a proper perspective where the said ghastly crime had been committed, where three university girl students stood roasted and 18 girl students suffered burn injuries. At the initial stage, the investigation was conducted by Shri Shanmugaiah (PW.116), as the Inspector, Shri Vilvaranimurugan (PW.119) was on court duty on 2.2.2000.
Thus, PW.119 took over the investigation after being free from the court duty. Considering the gravity of the offences, the investigation was handed over to the CBCID, thus, the change of Investigating Officer was inevitable. The Test Identification Parade was conducted by the experienced Judicial Officer in accordance with law and there was no haste in conducting the same. There is no rule of law that deposition of a hostile witness is to be discarded in toto. The appeals lack merit and are liable to be dismissed.
18. We have considered the rival submissions made by learned counsel for the parties and perused the records.
Charges under Section 188 IPC :
19. Section 195 Cr.PC reads as under :
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - (1) No Court shall take cognizance - (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or ........
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"
20. Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks 2 competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708;
Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391;
2 K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119).
21. The test of whether there is evasion or non-compliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it.
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 :
25. "The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside." (Emphasis added) 25 Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such 2 complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.
26. Learned counsel for the appellants have submitted that no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, it falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, entire prosecution case falls.
27. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC , unless there is a complaint in writing by the competent Public Servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC . However, we do not agree with the further 2 submission that absence of a complaint under Section 195 Cr.PC falsifies the genesis of the prosecution's case and is fatal to the entire prosecution case. There is ample evidence on record to show that there was a prohibitory order; which had been issued by the competent officer one day before; it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no `Rasta Roko Andolan'. Unfortunately, the agitation which initially started peacefully turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, we hold that in case the charges under Section 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned.
28. The submission on behalf of the appellants that two crimes bearing Nos. 188 and 190 of 2000 could not be clubbed together, has also no merit for the simple reason that if the cases are considered, keeping in view the totality of the 2 circumstances and the sequence in which the two incidents occurred, taking into consideration the evidence of drivers and conductors/cleaners of the vehicles involved in the first incident and the evidence of C. Ramasundaram V.A.O., (PW.87), we reach the inescapable conclusion that the second occurrence was nothing but a fall out of the first occurrence.
The damage caused to the public transport vehicles and the consequential burning of the University bus remained part of one and the same incident. Merely because two separate complaints had been lodged, did not mean that they could not be clubbed together and one charge sheet could not be filed (See : T.T. Antony v. State of Kerala & Ors. (2001) 6 SCC 181).
Test Identification Parade :
29. In Lal Singh & Ors v. State of U.P., AIR 2004 SC 299, this Court held that the court must be conscious of the fact that the witnesses should have sufficient opportunity to see the accused at the time of occurrence of the incident. In case the witness has ample opportunity to see the accused before 2 the identification parade is held, it may adversely affect the trial and in that case, the evidence as a whole is to be considered. The prosecution should take precautions and should establish before the Court that right from the day of his arrest, the accused was kept "baparda" so as to rule out the possibility of his face being seen while in police custody.
30. In Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420, this Court held that the object of conducting Test Identification Parade is to enable witnesses to satisfy themselves that the accused whom they suspect is really one who was seen by them in connection with commission of crime and to satisfy investigating authorities that suspect is really the person whom witnesses had seen in connection with said occurrence. It furnishes an assurance that the investigation is proceeding on right lines, in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. Therefore, the Test Identification Parade is primarily meant for investigation purposes. (vide Malkhan Singh v. State of M.P., AIR 2003 SC 2669; Ankush Maruti 2 Shinde & Ors. v. State of Maharashtra, (2009) 6 SCC 667;
and Jarnail Singh & Ors. v. State of Punjab, (2009) 9 SCC 719).
But the position would be entirely different when the accused or culprit who stands trial has been seen a number of times by the witness, as it may do away with the necessity of identification parade. Where the accused has been arrested in presence of the witness or accused has been shown to the witness or even his photograph has been shown by the Investigating Officer prior to Test Identification Parade, holding an identification parade in such facts and circumstances remains inconsequential. (vide Shaikh Umar Ahmed Shaikh & Anr. v. State of Maharashtra, AIR 1998 SC 1922; Lalli @ Jagdeep Singh v. State of Rajasthan, (2003) 12 SCC 666;
Dastagir Sab & Anr. v. State of Karnataka, (2004) 3 SCC 106; Maya Kaur Baldevsingh Sardar & Anr. v. State of Maharashtra, (2007) 12 SCC 654; and Aslam @ Deewan v. State of Rajasthan, (2008) 9 SCC 227).
31. In Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) 12 SCC 512, this Court placed reliance upon its earlier judgment in D. Gopalakrishnan v. Sadanand Naik & Ors., AIR 2004 SC 4965, and held that if the photograph of the accused has been shown to the witness before the Test Identification Parade, the identification itself looses its purpose. If the suspect is available for identification or for video identification, the photograph should never be shown to the witness.
32. Holding the Test Identification Parade is not a substantive piece of evidence, yet it may be used for the purpose of corroboration; for believing that a person brought before the Court is the real person involved in the commission of the crime. However, the Test Identification Parade, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of the accused can be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the 3 witness or the complainant. (Vide State of H.P. v. Lekh Raj AIR 1999 SC 3916).
33. In Mulla & Anr. v. State of Uttar Pradesh, (2010) 3 SCC 508, this Court placed reliance on Matru @ Girish Chandra v. The State of Uttar Pradesh, AIR 1971 SC 1050;
and Santokh Singh v. Izhar Hussain & Anr., AIR 1973 SC 2190 and observed as under :- "The evidence of test identification is admissible under Section 9 of the Indian Evidence Act. The Identification parade belongs to the stage of investigation by the police. The question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual evidence regarding identification is that which is given by witnesses in Court.
There is no provision in the Cr.P.C.
entitling the accused to demand that an identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court."
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.
44. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial.
The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi v. State of Maharashtra, AIR 1974 SC 220;
3 Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518;
Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850;
Paras Yadav v. State of Bihar, AIR 1999 SC 644; State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185; Amar Singh v. Balwinder Singh, AIR 2003 SC 1164; Allarakha K. Mansuri v. State of Gujarat, AIR 2002 SC 1051; and Ram Bali v. State of U.P., AIR 2004 SC 2329).
Arrest of A-4
45. Shri Sushil Kumar, learned senior counsel has raised the issue vehemently that arrest of C. Muniappan (A.4) is totally false. However, the evidence on record reveals that he was arrested at 1.30 a.m. on 3.2.2000, as is evident from the evidence of D. Poongavanam (PW.108), according to which when he was attending patrol duty along with other police officials on the highway from Dharmapuri to Tirupathur, near P. Mottupatti lake bridge, he got information that some one was present beneath the bridge. Thus, the said witness went to the place along with the other officers and he was taken into police custody in Crime No.115/2000 of Mathikonepalayam 4 Police Station under Section 151 Cr.P.C. read with Section 7(1)(A) of C.L. Act, and thus he was sent to jail. He had been released on bail on 9.2.2000 and the I.O. had been searching for him and he was arrested at New Bus Stand, Salem, where the Dharmapuri bus was to be parked, by P. Krishnaraj (PW.109). He tendered a confessional statement which was recorded in presence of Revenue Inspector, Manickam and Village Administrative Officer, C. Ramasundaram (PW.87).
There has been no cross-examination independently on behalf of A.4 on this issue. Even in cross-examination on behalf of other accused nothing has been elicited qua irregularity or improbability of the arrest of A.4. Therefore, we do not see any reason to disbelieve the arrest of C. Muniappan (A.4) as shown by the I.O.
46. So far as the issue of damage to the buses and the main incident of setting the bus on fire are concerned, both the courts have proceeded on the finding, after appreciating the entire evidence on record, that there was no common object between Nedu @ Nedunchezhian (A.2), Madhu @Ravindran 4 (A.3) and C. Muniappan (A.4) and the other accused regarding murder of the students and burning of the bus. Therefore, all of them had been convicted under different sections. However, the High Court directed the sentence to run concurrently so far as A.1, A.5 to A.14, A.16 to A.21, A.23 to A.26 and A.28 to A.31 are concerned. There has been sufficient material to show participation in the "Rasto Roko Andolan" and indulging in the incident of damaging the local route bus. Both courts have recorded the concurrent findings of fact in this regard.
We have also gone through the evidence. Their presence is established on the spot and we do not see any reason to interfere with the concurrent findings of fact recorded in that respect. We do not find any material on record, which may warrant interference with the said findings.
47. So far as A.2 to A.4 (Nedu, Madhu and C. Muniappan respectively) are concerned, the Trial Court recorded the following findings of fact:- "Accused 2 and 3 had poured petrol into the bus through the front door steps and set fire to it resulting in the death of the 4 abovesaid three students and causing injuries to some of the students. Knowing that students are inside the bus, they had set fire to the bus as stated above, knowing fully well that some of the students or all the inmates of the bus would meet their death inside the bus. Nobody could deny this fact. There was clear intention on the part of A2 and A3 to kill the inmates of the bus and thus A2 and A3 have murdered three girl students with the intention of killing them. Hence A2 and A3 are liable to be punished u/s 302 IPC (3 counts)............
....Presence of the 4th accused in the occurrence place has been amply proved.
Though the fact that he gave matchbox to A2 to set fire to the bus had not been established, yet the fact that he aided A2 and A3 to come to the occurrence place in his motor cycle after the occurrence is over, is clearly proved, because he was the person who drove the motor cycle and thus aided A2 and A3 in the commission of the offence u/s 4 of the TNP (PDL) Act and 302 IPC and 114 IPC could be invoked in this case since as per Section 107 IPC vide third definition whoever intentionally aids by any act or illegal omission the doing of the thing is an offender as defined in 107 IPC .
Hence, A4 Muniappan has committed the offences punishable u/s 4 of TNP (PDL) Act r/w 114 IPC and 302 IPC r/w 114 IPC (3 counts).
Further, the High Court after appreciating the evidence on record found that :- 4 "The identification of the A2 to A4 by the witnesses coupled with the evidence of the learned Magistrate PW-89 and the reports of PW89 produced in Exs. P-137 and P-142 would go a long way to show that A-2 to A- 4 were involved in the crime as spoken to by the prosecution witnesses."
From the record, it is evident that so far as A2 to A4 are concerned, their involvement in the incident has been substantiated by the evidence of PWs.61,62,63,97&99 (Santhamurthy, Madhaiyan, G. Manickam, Udayasuriyan and R. Karunanidhi respectively) as some of those said witnesses had identified D.K. Rajendran, Nedu, Madhu, C. Muniappan, D.K. Murugesan, D.A. Dowlath Basha, (A.1 to A.6 respectively), K. Ravi (A.9), Sampath (A.13), K. Chandran (A.21), R. Chellakutty (A.22), K. Mani (A.24), K. Veeramani (A.30) & Udayakumar (A.31). All the witnesses have also deposed that some of the members had been in the demonstration while K. Mani (A.24) damaged the Hosur bus stand. M. Kaveri (A.23) prevented the people from dousing the fire.
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.
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.
