C. MUNIAPPAN & Ors. v. STATE OF TAMIL NADU

Judgment

10 S.C.R. 262 A B C. MUNIAPPAN & ORS. v. STATE OF TAMIL NADU (Criminal Appeal Nos. 127-130 of 2008) AUGUST 30, 2010 [G. S. SINGHVI AND DR. B.S .. CHAUHAN, JJ.] Penal Code, 1860: c ss. 302, 3021114, 307 and 3071114 - Three of the members of a group of agitators setting ablaze a University bus full of girl-students - Three girls burnt alive to death and several others received burn injuries - HELD: Cowts below rightly convicted and sentenced the three accused to death 0 - Their activities were not only barbaric but inhuman to the highest degree - The manner of the commission of the offence is extremely brutal, diabolical, grotesque and cruel - It is sho_cking to the collective conscience of society - Sentence/Sentencing - Sentence of death - Aggravating and : E mitigating circumstances - Explained. SS. 1471148, 341 /PC and SS. 3 and 4 of TN (POL) Act, /PC Offences committed by a group of 1982 rlw s. 149 - agitators - Conviction and sentence by trial court - Sentence directed to run consecutively - High Court directing F sentences to run concurrently - HELD: The maximum sentence to be served by the accused as per High Court judgment being 2 years and accused having served 14 months of sentence, in the circumstances of the case, sentence reduced to the period already undergone - Tamil G Nadu (Prevention of Dangerous Activities of Boot Laggers, Traffic Offenders, Forest Offenders Activities, Immoral Traffic Offenders and Slum Grabbers and Videopirate) Act, 1982. · Evidence: H 262 C. MUNIAPPAN & ORS. v. STATE OF TAMIL NADU 263 Discrepancies in evidence - HELD: An undue A importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. Hostile witness - Evidence of - HELD: cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. B Extra-judicial confessional statement - Exhibiting of - C Explained. Investigation: Irregularities in investigation - HELD: In the instant case, irregularities-committed in the investigation by the earlier I. Os. have too little _relevance on the merits of the case an9 the material of earlier investigations has rightly been not relied upon by the ·subsequent Investigating Officer. Obligation on trial court in case of defective investigation - HELD: Investigation is not the solitary area for judicial scrutiny in a criminal trial - Where there has been negligence or omissions etc. on the part of the investigating agency, which resulted in defective investigation, there is a legal obligation on the court to examine the prosecution evidence de hors such /apses and examine whether the lapses had affected the prosecution case: D E F Test identification parade - HELD: Is a part of investigation and provides for an assurance that the investigation is proceeding in the right direction and it enables G 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 - Holding the test identification H 264 SUPREME COURT REPORTS (2010) 10 S.C.R. A parade is not substantive piece of evidence, yet it may be used for the purpose of corroboration 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 8 evidence on which the conviction of the accused can be It is a rule of prudence which is required to . be sustained - followed in cases where the accused is not known to the witness or the complainant - Evidence Act, 1872 - s. 9 - Test identification parade. C Code of Criminal Procedure, 1973 s.195 - Cognizance by court, of offence punishable uls 188 /PC - HELD: The provisions of s.195 are mandatory - Non-compliance of it would vitiate the prosecution and all o other consequential orders - Law does not permit taking cognizance of any offence punishable uls 188 /PC unless there is a complaint in writing by the competent public servant - In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction - However, non- E compliance of s. 195 would have no bearing on the prosecution case so far charges for other offences are concerned - Penal Code, 1860 - s. 188. Criminal Trial: F Clubbing of two Criminal cases into one trial - HELD: In the instant case, second incident was a fall out of the first occurrence - Merely because two separate complaints had been lodged, it would not mean that they could not be clubbed together and one charge-sheet could not be filed - Practice G and Procedure. Criminal Law: Crime and society - Crimes occurring in presence of public and police - Social sensitivity - Duty of police and H C. MUNIAPPAN & ORS. v. STATE OF TAMIL NADU 265 protectors of law - A University bus full of girl students set A ablaze by some of the agitators - Three young girls charred to death while several others sustained bum injuries - HELD:. Even if the common man fails to respond to the call of his conscience, the police should not have remained inactive - The administration did not bother to find out why the police B did not intervene and assist in the rescue, much less reprimand them for failing in their duty. During the "Rasta Roko Agitation" staged against conviction of a political leader, a mob of 100-150 of her C suppc:irters, while .the prohibition order u/s 60 of the Indian Police Act, 1861 was in force, damaged a town bus and set ablaze a University bus with 47 girl-students, with the result that 3 students burnt alive and 28 others received burn injuries and several others sustained serious injuries. Two FIRs were lodged as regards the occurrence D involving both the buses. In all, 30 accused were convicted u/ss .188, 341 IPC, ·and ss. 3 and 4 of the TNP (POL) Act read 'withs. 149 IPC. They were also convicted u/s 147 IPC except A-24, who was convicted u/s 148 IPC. Besides, A-2 to A-4 were also found guilty of setting the E University bus ablaze and burning three girl-students to death and causing burn injuries and other serious injuries to 28 others for which A-2 and A-3 were convicted u/s 302 IPC each for three counts and A-4 u/s 302 read withs. 114 IPC for three counts; A-2 and A-3 were further F convicted u/s 307 IPC each for 46 counts and A-4 u/s 307 read with s.114 IPC for 46 counts; A-2 to A-4 were sentenced to death. The sentences imposed on the other accused persons were directed to run consecutively which extended to 7 years odd. The High Court G confirmed the death sentences of A-2 to A-4, but modified the sentences of the other accused to run concurrently. In the appeals filed by the convicts, it was contended for them that in the absence of any complaint by the H 266 SUPREME COURT REPORTS [2010) 10 S.C.R. A competent officer whose prohibition order was stated to have been violated, the charge u/s 188 IPC could not have been framed; that the Criminal cases registered in respect of two separate FIRs could not have been into one single trial; that there were clubbed B contradictions in the statements of alleged eye witnesses; and, as such, the case did not warrant any trial. Disposing of the appeals, the Court C HELD: 1.1 From the record, involvement of A-2 to A- 4 in the incident of setting fire to the University bus has been substantiated. From the evidence of PW-99, PW-4, PW-5, PW-1 and PW-2, PW-8, PW-11, PW-12, PW-14, it has been established that A-2 to A-4 came on motorcycle, A- D 1 and A-3 sprinkled petrol inside the bus and set the bus ablaze. PW-99 has spoken about A-2 to A-4. He is an advocate and belongs to the locality. He has deposed that A-2 had set fire to the. Route No.7-B town bus. He has also corroborated the evidence of PW-97 that while the E bus was in flames, some persons tried to douse the fire but they were prevented by A-23. A-2 remained present in the earlier occurrence as well as the subsequent occurrence. It is significant to note that A-4 had kept the engine of the motor cycle running only to escape from the scene of occurrence along with A-2 and 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 and 5 and some other students who became G alert immediately after the bus was set on fire, the consequence could have been disastrous and more deaths could have occurred. [para 47, 51-56] F

1.2 So far as the issue of damage to the buses and H C. MUNIAPPAN & ORS. v. STATE OF TAMIL NADU 267 '" ' \ the main incident of setting the University bus on fire is A concerned, both the courts have proceeded on the finding, after appreciating the entire evidence on record, that there was no common object between A-2, A-3 and A-4 on the one hand, and the other accused, on the other, 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 their participation in C the "Rasto Roko Andolan" and indulging in the incident of damaging the local route bus. Both the courts below have recorded the concurrent findings of fact in this regard and there is no reason to interfere with the same. [para 46] [302-C-E] 8 D

1.3 As regards the doubts raised about the arrest of A-4, and his confessional statement, there 'has been no cross-examination independently on his behalf on this issue. Even in cross-examination on behalf of other accused nothing has been elicited qua irregularity or E improbability of the arrest of A-4. Therefore, there is no reason to disbelieve the arrest of A- 4 as shown by the 1.0. [para 45] [301-E-H; 302-A-B] F

1.4 A large number of injured students were examined in the court. They supported the prosecution case but did not identify any person either in the test identification parade or in the court. Their seating position in the bus had been such that they could not see as who had sprinkled the petrol in the bus. Besides, the photographer (PW-51) photographed and videographed the spot of the G agitation. He also photographed the burning bus. He watched the video prepared by him in the court and identified the same. [para 62) [308-F-G] H - 268 SUPREME COURT REPORTS [2010] 10 S.C.R. A '

2.1 If there are some omissions, contradictions and the entire evidence cannot be discrepancies, disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a 8 conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the C prosecution witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. The omissions and improvements in the evidence of the PWs pointed out in the instant casse are found to be very trivial in nature. [para 70-71] [311-F-G; 312-A-B] D · Sohrab & Anr. v. The State of M.P., .1973 ( 1 ) SCR 472 =AIR 1972 SC 2020; State of U.P. v. M.K. Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai Hirji Bhai v. State of E Gujarat, 1983 ( 3 ) SCR 280 = AIR 1983 SC 753; State of Rajasthan v. Om Prakash 2007 (7) SCR 1000 = AIR 2007 SC 2257; Prithu @ Prithi Chand & Anr. v. State of Himachal Pradesh, 2009 (2 ) SCR 765 = (2009) 11 SCC 588; State of UP. v. Santosh Kumar & Ors., 2009 (14 ) SCR 106 = (2009) 9 SCC 626; and State v. Saravanan & Anr., AIR 2009 SC 151 - relied on. F

2.2 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 G the defence. In the instant case, some of the material witnesses i.e. PW-86; and PW-51 turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. [para 70] [311-D E] H C. MUNIAPPAt•ra-ORS. v. STATE OF TAMIL NADU 269 Bhagwan Singh v. The State of Haryana, 1976 ( 2 ) SCR A 921 = AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, 1977 ( 1 ) SCR 439 =AIR 1977 SC 170; Syad Akbar v. State of Karnataka, 1980 ( 1 ) SCR 95 = AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, 1991 ( 3 ) SCR 1 =AIR 1991 SC 1853; State of B U.P. v. Ramesh Prasad Misra & Anr., 1996 ( 4) Suppl. SCR 631 =AIR 1996 SC 2766; Batu Sonba Shinde v. State of Maharashtra, 2002 ( 2 ) Suppl. SCR 135 = (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of c UP., 2006 (1 ) SCR 519 =AIR 2006 SC 951; Sarvesh Naraia Shukla v. Daroga Singh & Ors., 2007 (11 ) SCR 300 =AIR 2008 SC 320; and Subbu Singh v. State, 2009 (7 ) SCR 383 = (2009) 6 sec 462 - relied on

2.3 As regards exhibiting and reading of an extra- D judicial confessional statement, only the admissible part of it c·an be exhibited. The statement as a whole, if exhibited and relied upon by the prosecution, leads to the possibility of the court getting prejudiced against the accused. In the instant case, the confessional statement E of A-4 had been exhibited in the court in its full text. It was neither required nor warranted nor was permissible. However, in view of the fact that there had been other sufficient material on record to show his involvement in the crime, the full exhibition of the statement had not F prejudiced the case against him. [para 67-68] [310-C-E]