TaxTMI 
TaxTMI 
2010 (8) TMI 1091
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....arch 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 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 compell....
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.... 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 (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 und....
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....rt 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 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, ....
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....edu (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. 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 ca....
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....in the F.I.R. armed with wooden sticks and iron rods, shouted slogans and caused damage to the bus. They threatened the 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. Kanda....
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....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 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 court....
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....ledge. 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) 24. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under : "The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside." (Emphasis added) 25 Thus, in view of the above, the law can b....
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....ubbed together, has also no merit for the simple reason that if the cases are considered, keeping in view the totality of the 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 the identification par....
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....tification 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 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 polic....
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....idence 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 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); an....
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....m 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. 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 violen....
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....vidence 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 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. Ther....
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.... 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 :- "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 ....
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.... 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 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, t....
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.... 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 that another person lit the match stick and threw it in the bus and the bus was burnt into flames. Three girl students were charred to death. 58. Preetha (PW.8), a B.Sc. 2nd year student, aged 19 years had deposed that she was sitting ....
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....eir 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 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....
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..... 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 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, (200....
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.... 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 (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 und....
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....ourt 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 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 execute....
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....ople 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 the part of Nedu @ Nedunchezhian (A.2), Madhu @ Ravindran (A.3) and....