JUDGMENT
D. Murugesan, J.
1. The reference, R.T.No.1 of 2007 is by the learned First Additional Sessions Judge, Salem seeking confirmation of the death sentence imposed on A-2 to A-4 in Sessions Case No.293 of 2003.
2. Criminal Appeal Nos.226, 252, 253, 254, 266 & 267 of 2007 are filed by the Accused Nos.1 to 14, 16 to 21, 23 to 26 & 28 to 31 in Sessions Case No.293 of 2003 challenging their conviction and sentence.
3. Criminal Revision Case No.777 of 2007 is filed by R.Kesava Chandran @ Murthy, P.W.50, the father of one of the deceased-Hemalatha seeking to enhance the sentence imposed on the respondents 1 to 28. As the criminal appeals and the revision petition arise out of common judgment, they are taken up jointly and disposed of by this judgment.
4. Totally 31 accused were charged in this case. As one of the accused by name R.Chellakutty (A-22) died during trial, all the charges framed against him stood abated. The learned Sessions Judge, after elaborate trial, acquitted S.Palanisamy (A-15) and A.Madesh @ Madesh Masteri (A-27) of all the charges framed against them since the prosecution failed to prove its case beyond any reasonable doubt, but found A-1 to A-14, A-16 to A-21, A-23 to A-26 & A-28 to A-31 guilty of the charges framed against them, convicted and sentenced each one of them for the offences as detailed hereunder:
Accused
Nos.
Convicted
offence under Sections
Sentence(s)
or fine imposed
A-1
188(ii) IPC
To undergo S.I. for three
months and to pay a fine of Rs. 500/-, i/d to undergo S.I. for one month.
147 IPC
To undergo S.I. for one year
and to pay a fine of Rs. 500/-, i/d to undergo S.I. for one month.
341 IPC
To pay a fine of Rs. 500/-,
i/d to undergo SI for one week.
4 TNP (PDL) Act r/w 149 IPC
To undergo S.I. for two years
and to pay a find of Rs. 3,000/-, i/d to undergo S.I. for one year.
3(i) TOP (PDL) Act r/w 149 IPC
(3 counts)
To undergo S.I. for one year
and to pay a fine of Rs. 2,000/-, i/d to undergo S.I. for six months under
each count
3(i) TNP (PDL) Act r/w 149 IPC
To undergo S/I. for one year
and to pay a fine of Rs. 2,000/-i/d to undergo S.I. for six months.
341 r/w 149 IPC
To pay a fine of Rs. 500/-,
i/d to undergo S.I. for one week. The above sentences are to run
consecutively.
188(ii) IPC
To undergo S.I. for three
months and to pay a line of Rs. 500/-, i/d to undergo S.I. for one month.
147 IPC
To undergo S.I. for one year
and to pay a fine of Rs. 500/-, i/d to undergo S.I. for one month.
341 IPC
To pay a tine of Rs. 500/-,
i/d to undergo S.I. for one week.
4 TNP (PDL) Act (2 counts)
To undergo SI. for two years
and to pay a fine of Rs. 3,000/-, i/d to undergo S.I. for one year.
A-2
3(1) TNP (PDL) Act/w 149 IPC
(3 counts)
To undergo S.I. for one yeas
and to pay a fins of Rs. 2,000/, i/d to undergo S.I. for six months under
each count
3(i) TNP (PDL) Act r/w 149 IPC
To undergo S.I. for one year
and to pay a fine of Rs 2,000/-, i/d to undergo S.I. for six months.
341 r/w 149 IPC
To pay a fine of Rs. 500/-,
i/d to undergo S.I. for one week.
302 IPC (3 counts)
Sentenced to death
307 IPC (46 counts)
To undergo R.I. for seven
years and to pay a fine of Rs. 1,000/-, i/d to undergo R.I. for six months
under each count to run concurrently.
188(ii) IPC
To undergo S.I. for three
months and to pay a fine of Rs. 500/-, i/d to undergo S.I. for one month.
147 IPC
To undergo S.I. for one year
and to pay a fine of Rs. 500/-, i/d to undergo 8.I. for one month.
341 IPC
To pay a fine of Rs. 500/-,
i/d to undergo S.I. for one week.
4 TNP (PDL) Act r/w 149 IPC
To undergo S.I. for two years
and to pay a fine of Rs. 3,000/-, i/d to undergo S.I. for one year.
3(i) TNP (PDL) Act r/w 149 IPC
(3 counts)
To undergo S.I. for one year
and to pay a fine of Rs. 2,000/-, i/d to undergo S.I. for six months under
each count.
A-3
3(i) TNP (PDL) Act r/w 149 IPC
To undergo S.I. for one year
and to pay a fine of Rs. 2,000/-, i/d to undergo SI. for six months.
341 r/w 149 IPC
To pay a fine of Rs. 500/-,
i/d to undergo SI. for one week.
302IPC (3counts)
Sentenced to death
4TNP(PDL) Act
To undergo S.I. for two years
and to pay a fine of Rs. 3,000/-, i/d to undergo S.I. for one year.
307 IPC (46 counts)
To undergo R.I. for seven
years and to pay a fine of Rs. 1,000/-, i/d to undergo R.I. for six months
under each count to run concurrently.
1880 (ii) IPC
To undergo S.I. for three
months and to pay a fine of Rs. 500/-, i/d to undergo S.I. for one month.
147 IPC
To undergo S.I. for one year
and to pay a fine of Rs. 500/-, i/d to undergo S.I. for one month.
341 IPC
To pay a fine of Rs. 500/-,
i/d to undergo S.I. for one week.
4 TNP (PDL) Act r/w 149 IPC
To undergo S.I. for two years
and to pay a fine of Rs. 3,000/-, i/d to undergo S.I. for one year.
3(i) TOP (PDL) Act r/w 149 IPC
(3 counts)
To undergo S.I. for one year
and to pay a fine of Rs. 2,000/-, i/d to undergo S.I. for six months under
each count.
A-4
3(1) TOP (PDL) Act r/w 149 IPC
To undergo S.I. for one year
and to pay a fine of Rs. 2,000/, i/d to undergo S.I. for six months.
341 r/w 149 IPC
To pay a fine of Rs. 500/, i/d
to undergo S.I. for one week.
302 r/w 114 IPC (3 counts)
Sentenced to death
4TNP (PDL) Acting 114 ipc
To undergo S.I. for two years
and to pay a fine of Rs. 3,000/-, i/d to undergo S.I. for one year.
307 r/w 114 IPC (46 counts)
To undergo R.I. for seven
years and to pay a fine of Rs. 1,000/-, i/d to undergo R.I. for six months
under each court to run consequently.
A-5 to A-14, A-16 to A-21, A-25,
A-26 & A-28 to A-31
188(ii)IPC
Each to undergo S.I. for three
months and to pay a fine of Rs. 300/-, i/d to undergo S.I. for one month.
147 IPC
Each to undergo S.I. for one
year and to pay a fine of Rs. 500/- i/d to undergo S.I. for one month.
341 IPC
Each to pay a fine of Rs. 500/-
i/d to undergo S.I. for one week.
4 TNP (PDL) Act r/w 149 IPC
Each to undergo S.I. for two
years and to pay a fine of Rs. 3,000/-, i/d to undergo S.I. for one year.
30) TNP (PDL) Act r/w 149 IPC
(3 counts)
Each to undergo S.I. for one
year and to pay a fine of Rs. 2,000/ i/d to undergo S.I. for six months under
each count.
3(i) TNP (PDL) Act r/w 149 IPC
Each to undergo S.I. for one
year and to pay a fine of Rs. 2,000/-, i/d to undergo S.I. for six months.
341 r/w 149 IPC
Each to pay a fine of Rs. 500/-,
i/d to undergo S.I for one week. The above sentences to run consecutively.
A-23
188(i) IPC
To undergo S.I. for three
months and to pay a fine of Rs. 500/-, i/d to undergo S.I. for one month
147 IPC
To undergo S.I. for one year
and to pay a fine of Rs. 300/-, i/d to undergo S.I. for one month.
341 IPC (3 counts)
To pay a fine of Rs. 500/-,
i/d to undergo S.I. for one week under each count.
4TNP (PDL) Act r/w 149 IPC
To undergo S.I. for two years
and to pay a fine of Rs. 3,000/-, i/d to undergo S.I. for one year.
3(i) TNP (PDL) Act r/w 149 IPC
(3 counts)
To undergo S.I. for one year
and to pay a fine of Rs. 2,000/-, i/d to undergo S.L for six months under
each count.
3 (i) TNP (PDL) Act r/w 149
IPC
To undergo S.I for one year
and to pay a fine of Rs. 2,000/-, i/d to undergo S.I. for six months. The
above sentences are to run consecutively.
A-24
188(ii) IPC
To undergo S.I. for three
months and to pay a fine of Rs. 500/-, i/d to undergo S.I. for one month.
148 IPC
To undergo S.I. for eighteen
months and to pay a fine of Rs. 500/-, i/d to undergo S.I. for one month.
341 IPC
To pay a fine of Rs. 500/-,
i/d to undergo S.I. for one week.
4TNP (PDL) Act r/w 149 IPC
To undergo S.I. for two yearn
and to pay a fine of Rs. 3,000/-, i/d to undergo Six for one year.
3(i) TNP (PDL) Act r/w 149 IPC
(3 counts)
To undergo S.I. for one year
and to pay a fine of Rs. 2,000/-i/d to undergo Six for six months under each
count
3(i) TNP (PDL) Act r/w 149 IPC
To undergo Six for one year
and to pay a fine of Rs. 2.000/-, i/d to undergo S.I. for six months.
341 r/w 149 IPC
To pay a fine of Rs. 300/-,
i/d to undergo S.I. for one week. The above sentences are to run
consecutively.
5. The accused were put on trial on the following prosecution case:-
The unfortunate incidents in this case took place in the year 2000 at Dharmapuri, where three girl students namely, Kokilavani, Gayathri and Hemalatha studying II year B.Sc.(Agri) course in Coimbatore Agricultural University College were burnt alive. The boy and the girl students of the University numbering 101 left on 22.1.2000 for an educational tour in two buses belonging to the University. The girl students numbering 47 travelled in a bus bearing Regn.No.Tn-38-C-5550 along with two Professors namely, Latha, P.W.1 and Akila, P.W.2 and the boy students travelled in another bus bearing Regn.No.TNU-1799 along with Professors Velayutham and Christopher Lourduraj. After completing the educational tour, all the students came to Paiyur near Dharmapuri on 1.2.2000 at about 12.00 midnight and stayed in Regional Agricultural Research Centre. On 2.2.2000 at about 11.00 a.m., the students left to Hogenakkal and, after seeing a nursery garden on the way, they reached Dharmapuri at 12.30 p.m. The buses were parked in front of Saravanabhavan hotel and most of the students and Professors went inside the hotel for taking lunch or purchasing parcels and some students remained in the buses.
6. A prohibitory order under Sections 30-A and 61 of the Police Act was in force already around Dharmapuri in view of the naxalite movements and the same was extended for further period of 15 days from 1.2.2000 by the Deputy Superintendent of Police, P.W.117. When the students boarded the buses after taking lunch, they came to know about the conviction and sentence imposed on the former Chief Minister Selvi.J.Jayalalithaa in Pleasant Stay Hotel Kodaikanal case along with four other accused in Special Calendar Case No.2 of 1997 by the Special Judge No.II, Chennai. Soon after the above news, angered AIADMK party people resorted to dharnas and took out procession compelling the shopkeepers to close their shops by pelting stones. Sensing trouble, P.W.1 and two male Professors went to contact the Vice Chancellor of the University for getting his advice as to what should they do further. Within five minutes, a group of 150 members belonging to AIADMK political party, going on a procession armed with flags, sticks and stones, passed through the buses on the road raising slogans. The girl students were frightened and they remained in the bus closing the shutters. P.W.4-Kandasamy, the driver, moved the bus to some distance from the hotel and parked it near an old petrol bunk. The other bus carrying the students was also moved to that place. In the meantime, P.W.1 and others came to the buses and told the students that the Vice Chancellor had instructed them to take all the students to a safety place and return to Coimbatore after the situation becomes normal. Accordingly, after deciding to stay in the District Collector’s office, the buses left that place at about 2.10 p.m., after closing all the shutters except two shutters on the left side of the bus in which the girl students travelled. When they were near Bharatipuram, they saw the traffic being obstructed about a furlong away by a group of people namely, the accused by staging dharna on the road. The buses were parked near a tamarind tree on the left side behind the two cars.
7. All the accused formed themselves into an unlawful assembly headed by A-1 violating the prohibitory order at Illakkiampatti near the MGR statue in Salem-Bangalore National Highway and they obstructed free flow of traffic. They also caused damage to the Government buses bearing Regn.Nos.TN-29-N-1094, TN-29-N-0543 and TN-29-N-1011 by breaking the windshields and also set fire to three seats of one of the buses bearing Regn.No.TN-29-N-0543, Route No.7B town bus. The damages caused to the buses were witnessed by P.Ws.53, 54, 55, 57, 58 and 59 namely, the drivers and conductor of the buses. On hearing the news that persons belonging to AIADMK political party were staging dharna at Illakiampatti, the reporters and photographers namely, P.Ws.41, 43, 45, 46, 49, 52, 42, 44 & 51 of various Tamil dailies and private television channels like Sun TV & Jaya TV came to the place, videographed and photographed the dharna and demonstration. The said occurrence was also witnessed by the Sub Inspector of Police (Traffic), P.W.61, the Head Constable of Dharmapuri Town Police Station, P.W.62, the Head Constable of Special Branch, P.W.63 and the Village Administrative Officer, P.W.87 apart from the residents of Illakkiampatti namely, P.Ws.99 and 97.
8. In the meantime, A-2 to A-4 left that place to Majestic Auto Garage belonging to Kamal, P.W.86 and, after procuring petrol in two plastic cans, they reached Bharatipuram and came near the parked bus, in which the girl students and P.Ws.1 & 2 were seated, in a motorcycle, M.O.5 driven by A-4, the owner. A-2 and A-3 sprinkled petrol inside the bus through the two shutters that were left open on the left side and A-2 threw a lighted matchstick inside the bus and after setting it on fire, A-2 to A-4 moved out of the place in the same motorcycle, M.O.5. Before the fire engulfed the bus, M.O.2, some of the girl students and P.Ws.1 & 2 either managed to alight or were pulled out through the shutters by the other boy students from the bus, except the three girl students namely, Kokilavani, Gayathri and Hemalatha who were burnt alive inside the bus. While the bus was burning, some of the photographers and two videographers namely, P.Ws.52 & 51 took photos and video of the burnt bus. Some of the students sustained burn injuries and some sustained injuries while they were pulled outside through the shutters. The injured students were taken to the Government Hospital, Dharmapuri for treatment. As three students were found missing, it was later noticed that all the thee students by names, Kokilavani, Gayathri and Hemalatha were burnt alive and the bodies were lying inside the bus.
9. P.W.87, the Village Administrative Officer went to Dharmapuri Police Station on the same day at about 3.00 p.m., and gave a written complaint, Ex.P-120 to P.W.120, the Sub Inspector of Police, which was registered in Crime No.188 of 2000 for the offence under Sections 147, 148, 149, 436, 302 IPC and under Sections 3 and 4 of the Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992. The printed First Information Report is Ex.P-121 and the copies of the reports were sent to the higher police officials and to the Court.
10. Since P.W.119, the Inspector of Police of Dharmapuri Police Station was away on other duty, P.W.116, the Inspector of Police attached to Adhiyaman Kottai Police Station, after taking up investigation, went to the scene of occurrence at about 4.15 p.m., and prepared the Observation Mahazar, Ex.P-122 and drew a rough sketch, Ex.P-194. He seized the sample ash, four glass pieces, M.O.10 series and the burnt bus, M.O.2 under the mahazar, Ex.P-123 and sent those material objects to the Court in Form-95 under Ex.P-195. P.W.116 along with P.Ws.121 & 122, the Sub Inspectors of Police conducted inquest on the bodies of the deceased simultaneously and they prepared the inquest reports under Exs.P-196, P-221 and P-222 in the presence of P.Ws.1,2 & 4. Thereafter, P.W.116 sent the three bodies of the deceased through the Constables namely, P.Ws.75, 76 & 77 with requisition letters under Exs.P-21, P-27 & P-32 for conducting post-mortem.
11. P.Ws.31, 35 and 38, the doctors attached to Government Hospital, Dharmapuri conducted post-mortem on the bodies of the deceased on 3.2.2000 and they issued the post-mortem certificates under Exs.P-23, P-33 and P-28 respectively with their opinion that the death was due to shock due to 100% burn injuries.
12. P.W.116, continuing with his investigation, on information, arrested A-5, A-7, A-10, A-11 and A-17 on the same day at about 11.00 p.m., and on the basis of the admissible portion of their confessional statements under Exs.P-124, P-125, P-126, he seized the three casuarina sticks, M.O.11 series under the mahazars, Exs.P-127, P-128 & P-129 and sent the same to the Court under Ex.P-197. He remanded them to judicial custody. He also caused inspection of the burnt bus, M.O.2 through the Motor Vehicles Inspector, P.W.84 and obtained the inspection report, Ex.P-115.
13. P.W.119 reported for duty and took up investigation in this case. He arrested A-15 on 6.2.2000 and remanded him to judicial custody.
14. In the meantime, P.W.60, Senior Assistant Engineer of Tamil Nadu Transport Corporation Limited, Dharmapuri, went to Dharmapuri Police Station at 8.00 p.m., on 2.2.2000 and gave a written complaint, Ex.P-82 as to the damages caused to the buses at Illakiampatti to the Sub Inspector of Police, P.W.120, which was registered in Cr.No.190 of 2000 for the offence under Sections 147, 148, 341, 436 and 506(ii) IPC and Sections 3 and 4 of the Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992. The printed First Information Report is Ex.P-218 and the copies of the reports were sent to the higher police officials and to the Court.
15. Since P.W.119, the Inspector of Police of Dharmapuri Police Station was away on other duty, P.W.81, the Inspector of Police attached to Thoppur Police Station took up investigation in this case and he proceeded to the scene of occurrence at about 10.00 p.m., on the same day and prepared the Observation Mahazar, Ex.P-107 and drew a rough sketch, Ex.P-108 in the presence of P.Ws.67 and 68. At about 10.45 p.m., he seized the sample glass pieces, M.O.8 series and six sample brick pieces, M.O.9 series under the mahazar, Ex.P-109 in the presence of the witnesses and recorded their statements. On 3.2.2000, he sent the damaged buses for causing inspection to the Motor Vehicles Inspector and obtained the inspection reports under Exs.P-116 & P-119. He seized the three burnt seats of the town bus (Route No.7B) bearing Regn.No.TN-29-N-0441 from P.W.54-driver and sent the same to the Court in Form-95 under Ex.P-110. On 5.2.2000 he transferred the investigation to P.W.119, who returned to duty.
16. In the meanwhile, as per the directions of the Director General of Police, Chennai, the investigation in both the cases was transferred to the Special Investigation Team, Crime Branch CID and the Additional Superintendent of Police, P.W.123 was appointed as the Chief Investigating Officer. P.W.123 took up investigation in both the cases on 6.2.2000 and proceeded to Bharatipuram namely, the scene of occurrence. He also went to Coimbatore and examined the witnesses. He formed special teams to arrest the remaining accused. He also obtained the reports of the Fire Officer, P.W.64 under Exs.P-85 to P-87.
17. A-4, who was in jail, was released on bail on 9.2.2000 and while he was standing in Central Bus Stand, Salem, P.W.109, the Inspector of Police of Special Team arrested him and on the basis of the admissible portion of his confession under Ex.P-130, P.W.123 went to the Auto Garage from where A-2 to A-4 purchased petrol and prepared an Observation Mahazar, Ex.P-131. On information, he went to the tea shop of Panneerselvam Naickenkottai to seize the motorcycle, M.O.5 belonging to A-4, but the motorcycle was not found. On 10.2.2000 he went to the house of A-4 and enquired his wife Kamala in the presence of P.W.93, the Village Administrative Officer and other witness and seized the records relating to the motorcycle under Exs.P-92 to P-96, P-111 and P-112 as well a plastic cover, M.O.7 under the mahazar, Ex.P-127. On 11.2.2000 A-2 and A-3 surrendered before P.W.91, Deputy Superintendent of Police & Special Team Officer and they were produced before P.W.123. P.W.123 enquired A-3 and A-2 and on the basis of the admissible portion of their confession under Exs.P-150 & P-149, he seized the letterheads, Ex.P-151 and membership card, Ex.P-152 under the mahazar, Ex.P-153 from the house of A-2. Likewise, he seized certain receipts namely, building donation receipts and meeting notices under the mahazars Exs.P-154 to P-156. On gathering information, he went to Punjai Puliyampatti and enquired one Shanmugam, the brother of A-4 and seized the motorcycle, M.O.5 from a bush under Ex.P-159 in the presence of P.W.93, the Village Administrative Officer and another witness. He also prepared an Observation Mahazar, Ex.P-158 at that place. He proceeded to Coimbatore on 14.2.2000 and recorded the statements of some girl students. On the basis of the confession of A-3, he deputed the Sub Inspectors of Police namely, P.Ws.102 & 103 to Kesthur Village, Karnataka State and from the house of P.W.101, they recovered grey colour shirt, M.O.4, white colour shirt, M.O.12, while colour dhoti, M.O.15 worn by A-3 under the mahazar, Ex.P-167. They produced those material objects to P.W.123. He remanded A-2 to A-4 to judicial custody.
18. Thereafter, he gave a requisition in Ex.P-138 on 15.2.2000 to the Chief Judicial Magistrate, Dharmapuri for conducting test identification parade in respect of A-2, A-3 & A-4 and accordingly, the Judicial Magistrate No.2, Hosur conducted conducted test identification parade in Salem Central Prison and prepared the identification parade notes under Ex.P-137. Again she conducted test identification parade in respect of the remaining accused and prepared the identification parade notes, Ex.P-142.
19. P.W.123 examined A-25, who was earlier arrested, on 20.3.2000 and on the basis of the admissible portion of his confession under Ex.P-174, he seized the cycle pump, M.O.14 alleged to have been used for damaging the buses under the mahazar, Ex.P-175. Most of the accused were arrested then and there by the Special Team police officials and, after producing them before P.W.123, they were remanded to judicial custody. Since the occurrence relating to both the cases happened on the same day, after completing investigation, P.W.123 laid a single charge sheet against all the accused for the offence under Sections 147, 148, 149, 341, 342, 302, 307 and 114 IPC and under Sections 3 & 4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 on 28.4.2000 before the Court.
20. In order to bring home the charges against the accused, the prosecution examined 123 witnesses besides marking 242 documents and producing 14 material objects.
21. When the accused were questioned under Section 313 of the Criminal Procedure Code in respect of the incriminating materials appearing against them. A-1 filed a separate statement stating that all of the accused sat peacefully during the bandh and the cases have been falsely foisted on them. Some of the accused also filed statements denying their complicity in the offence. No witness was examined on the side of the accused, but Exs.D-1 to D-14 were marked. Two court witnesses namely, C.W.1, the Vice Chancellor of Tamil Nadu Agricultural University, Coimbatore and C.W.2, the District Collector, Dharmapuri were examined and six documents namely, Exs.C-1 to C-6 were marked. After elaborate trial, the learned trial Judge convicted and sentenced the accused for the offences as stated earlier.
22. We have heard the respective learned counsel for all the appellants/accused. Mr.V.Gopinath, learned senior counsel appearing for A-1, A-2, A-5 to A-11, by leading the arguments, would firstly contend that so far as the occurrence at Illakiampatti is concerned, the demonstration was peaceful and it is not correct to say that there was a prohibitory order, Ex.P-214 in force, as it was not made known to the public. In any event, the prosecution has miserably failed to prove that the three buses namely, bus bound for Hosur, Route Nos.12 & 7B town buses were damaged by the members of the demonstration. In any case, the presence of P.Ws.97 & 99 is highly doubtful to speak about the first occurrence. He would submit that though the first occurrence had taken place at about 12.30 p.m., the complaint, Ex.P-82 was given by P.W.60, Senior Assistant Engineer of Tamil Nadu Transport Corporation Ltd., Dharmapuri to P.W.120, the Sub Inspector of Police, Dharmapuri Police Station only at 8.00 p.m. The prosecution had examined P.Ws.41,43,45,47,49,51 & 52 and as well P.Ws.53,54 & 55 apart from some of the police officials and there are lots of contradictions in their statements. None of the witnesses have indicated as to the specific overt acts of causing damage to the buses. Hence the prosecution has failed to prove the charges.
23. So far as the second occurrence at Bharathipuram is concerned, the learned senior counsel would submit that the complaint given by the Village Administrative Officer, P.W.87 contains only the names of 25 accused persons and he has not referred to any other names. The name of A-4 did not find a place in the complaint. On the other hand, he has deposed before the Court implicating almost all the accused in addition to naming of 25 persons. It is highly doubtful that he had given a correct version as to the occurrence to set the law in motion. Contrary to the version in the First Information Report, he has stated before the Court that he witnessed the bus in flames and the students were crying for help to get them out of the bus. Hence the complaint itself is doubtful. Moreover, P.W.87 himself had admitted in his cross examination that he gave the complaint as per the instructions given by the Sub Inspector of Police. Therefore, he would submit that the First Information Report which is a vital document to set the criminal law in motion cannot be relied upon and therefore, the entire investigation on that basis would also be a nullity.
24. The learned senior counsel would further submit that the inquests are said to have been conducted by P.W.116 on the body of the deceased-Kokilavani under the report, Ex.P-196, by P.W.121 on the body of the deceased-Hemalatha under the report, Ex.P-221 and by P.W.122 on the body of the deceased-Gayathri under the report, Ex.P-222. In none of the reports, the presence of A-4 was spoken as well as the overt acts said to have been committed by A-2 & A-3. There are lots of contradictions in the First Information Report and inquest. The presence of P.Ws.1,2,4 & 5 were shown at the time of inquests apart from the parents of the deceased-Kokilavani and Gayathri. Strangely, the Investigating Officers’ who conducted the inquests had not cared to obtain the signature of the parents. Therefore, the investigation is defective in all material particulars and the prosecution has strangely for the first time in the Court came forward to disown the conduct of the inquests themselves. In view of the serious defects, the entire case of the prosecution must fail.
25. He would also submit that there are lots of contradictions as to the implication of A-2, A-3 & A-4 and the manner in which they have poured petrol and set fire and in the absence of cogent and convincing evidence, the accused are entitled to the benefit of doubt. He has also submitted that there are two First Information Reports registered in respect of two occurrences and the prosecution erred in clubbing both the occurrences and filed a common charge sheet. The accused are therefore highly prejudiced. He would also submit that in any case, the extreme penalty of death is not warranted, as it is not one of rarest of rare cases.
26. Mr.S.Ashok Kumar, learned senior counsel appearing for A-3 & A-17 to A-20 would submit that in respect of the earlier occurrence, even when P.Ws.62, 63, 65, 97 & 99 have witnessed the demonstration, they also saw the three buses being damaged, the damages particularly, the burning of Route No.7B town bus was not at the instance of any one of the members of the demonstration. Insofar as the second occurrence, he would also submit that there are lots of discrepancies in the test identification parade and most of the witnesses, though have identified the accused, utilised the opportunity of seeing the newspapers and television some of the photographs of the accused and therefore the test identification parade itself has no relevance to implicate the accused. In support of the above submission, the learned senior counsel extensively took us through the evidence.
27. Mr.P.N.Prakash, learned counsel appearing for A-21, A-23 to A-26 & A-28 to A-31 has submitted that the First Information Report under Ex.P-218 could not have come into existence as P.W.60 was not in the scene of occurrence and none of the witnesses have spoken about the same. Mr.S.Ashok Kumar, learned senior counsel and Mr.P.N.Prakash, learned counsel have adopted the arguments of Mr.V.Gopinath, learned senior counsel in all other aspects.
28. Mr.Sushil Kumar, learned counsel appearing for A-4 would submit that A-4 was in judicial custody from 2.2.2000 and was arrested in yet another case of suspicion and he was arrested in this case only after his release and how A-4 could have been involved in the offence as narrated by the prosecution witnesses. The arrest and the earlier case filed against A-4 would go a long way to show that A-4 was not involved in the said crime and therefore, he cannot be fastened with criminality of committing the offence. It is the case of the prosecution that A-4 had driven the Hero Honda Motor Cycle, M.O.5 by carrying A-2 and A-3 who were possessing petrol in plastic cans for the purpose of pouring on the bus and to lit fire and if A-4 was not in the picture, consequently A-2 and A-3 could not be present in the scene of occurrence and therefore, the charges against A-2 and A-3 that they poured petrol on the bus and lit fire to the bus cannot also be sustained.
29. The learned Public Prosecutor, on the other hand, would submit that the incident of bus firing at Bharathipuram is in continuation of the damages caused to the buses at Ilakkiampatti village which is just 300 ft. away from the scene of occurrence. Immediately on the filing of the complaint, registration of the case was done and in the meanwhile, at the scene of occurrence, students of Dharmapuri Arts College and the Coimbatore Agricultural College had gathered and were agitating against the killings of three girl students in the bus fire and they were hindering to the investigation of the case and during the said period of commotion, the inquest was conducted by the respective investigating officers namely, P.Ws.116, 121 & 122 and therefore, there is every possibility of anxiety and mistakes could be committed in such a very charged atmosphere and it could be seen from the evidence of P.W.87 that he was in a utter confusion at the time of giving the complaint and he had to dance to the dictates of the Sub Inspector of Police and wrote the complaint and submitted for taking action in the said case and therefore, the circumstances had made the Investigating Officers’ who were in charge of the investigation to commit mistakes and the subsequent investigation entrusted with CBCID had shown the correct picture and in a case like this, the mistakes of the investigating officer cannot be magnified for the purpose of giving benefit of doubt to the accused. He would further submit that the Assistant Commissioner of CBCID had examined the witnesses and had continued the investigation and the final report of the subsequent investigating agency could alone be considered and the earlier investigation cannot be taken for the purpose of contradicting the subsequent investigation. He would further submit that the First Information Report is not an encyclopedia and it is bound to have bereft of details and contradictory statements which could be investigated and the correct facts are to be found for the purpose of charge sheeting and therefore, the earlier investigation as rightly spoken to by the informant himself and the inquest reports prepared in a hurry burry manner by the then Investigating Officers, P.Ws.116, 121 and 122 may not be relevant for finding the truth in the case.
30. The learned Public Prosecutor would further submit that the test identification parade was conducted by P.W.89, the Judicial Magistrate of Krishnagiri and in the said identification parade that was conducted on three occasions, the prosecution witnesses had identified the accused and therefore, it can be said that the evidence of the prosecution witnesses cannot be relied with further corroboration. Further, he would submit that P.Ws.1, 2 and 4 to 28 are the Professors, Driver, Cleaner, boy and the girl students travelled in two buses were in no way introduced to A-2 to A-4. If some other persons had come and poured petrol and lit fire to the bus, they would not have implicated A-2 to A-4 in the serious crime of bus firing and killing of the students. There is no previous inimical attitude in between the prosecution witnesses and A-2 to A-4 and therefore, their evidence cannot be termed as interested against A-2 to A-4.
31. The learned Public Prosecutor would submit that it is possible for A-4 to commit the offence as spoken by the prosecution witnesses and thereafter planning for commission of another offence and in the meanwhile, he was arrested by some other police and was remanded to judicial custody and after investigation when A-4’s involvement was found, he could be arrested either during his judicial custody or on his release from judicial custody and in this case he was arrested immediately after he was released on bail and therefore, there is no point in the argument advanced by the learned counsel for A-4 that since A-4 was involved in some other crime, he could not have involved in this crime.
32. The learned Public Prosecutor would also submit that the proof of involvement of the accused in similar cases could be possible only through natural contradictions and the defects in the investigation and those defects and the natural contradictions which are minor in nature cannot in any way give right to the accused to seek the benefit of doubt. The criminal intention and attitude of A-2 to A-4 had been spoken to by all the witnesses and they had no mercy for the girl students and even before they get down from the bus, they prepared to light fire on the bus which would go a long way to show their bad criminal intention to wreck vengeance on the innocent persons who were in no way connected with the grievance of the accused. He would further submit that the accused were suggested in the cross examination of P.W.1 that the injured girl students had suffered injuries and the deceased girl students had gutted into the fire despite the warning given to them not to enter into the bus to get their luggages and this sort of circumstances would go a long way to show the involvement of the accused in the crime and therefore, the evidence of the prosecution could have been relied upon by the Court and this sort of crimes committed by A-2 to A-4 could not be let out for the laxity or the defects in the investigation which are bound to happen in such cases.
33. We have also heard Mr.S.Kumaradevan, learned counsel for the revision petitioner/P.W.50. He would submit on the same lines as the learned Public Prosecutor and further submitted that the sentences should be enhanced on the respondents 1 to 28.
34. We have carefully and anxiously considered the rival submissions and also perused the entire materials including the evidence and exhibits. The foremost contention of the learned counsel is that the theory of promulgation of prohibitory order was introduced only to falsely implicate the accused as if they had violated the prohibitory order and held road-roko/demonstration. It is further contended that the prohibitory order was not made known to the public by proper publicity and the failure to mention the expiry of the prohibitory order passed earlier would throw a serious doubt as to the issuance of the prohibitory order dated 1.2.2000 prohibiting demonstration for a period of 15 days therefrom. The learned senior counsel further argued that the prohibitory order could not have been issued and it was backdated only to falsely implicate the accused.
35. In order to prove whether a prohibitory order was issued in accordance with law by a competent officer and the same was in force on the date of occurrence i.e., on 2.2.2000, the prosecution has examined P.Ws.117, 120 and 121. A careful scrutiny of the evidence of P.W.117 shows that he took charge as Deputy Superintendent of Police, Dharmapuri on 20.1.2000 and on that date, he came across a file relating to the prohibitory order in No.C-71/STO/B/2000. He also found that a prohibitory order was issued by his predecessor Thiru.Pon Ilango under Section 30(A) of the Police Act for a period of 15 days, which was to expire on 31.1.2000. That prohibitory order was passed in view of the serious threat to public peace and tranquillity due to the activities of naxalites and anti-social elements and it was also anticipated that those anti-social elements may indulge in activities affecting law and order. As P.W.117 also satisfied himself that such activities of naxalites and anti-social elements will continue, by proceedings dated 1.2.2000 under Ex.P-214, he promulgated the prohibitory order to be in force from the early hours of 1.2.2000 till the night of 15.2.2000.
36. There is no dispute that P.W.117 is the officer competent to issue such prohibitory order. Section 30(A) of the Police Act empowers P.W.117 to issue such prohibitory order fixing the time for which such order would be in force. The section does not contemplate that in case of extension of an existing prohibitory order, earlier order that was in force on the date of the subsequent order, should also be referred to. Whether to extend an order which is in force or to pass a fresh order depends upon the threat to public peace and public tranquillity due to the activities of anti-social elements existed on that date. Merely because the subsequent order did not refer to the earlier order, that would not throw any doubt as to the promulgation of the prohibitory order and this Court should entertain any doubt about the said order as if it was backdated only to falsely implicate the accused. The evidence of P.W.117 is categorical that there was an earlier file opened for issue of prohibitory order in No.C-71/STO/B-2000 and that prohibitory order had expired on 31.1.2000 and the subsequent order in Ex.P-214 was also issued as per the same file. Hence the contention that there was no prohibitory order as claimed by P.W.117 cannot be accepted.
37. This leads us to the next question as to whether the public were made aware of the prohibitory order. Here again, the evidence of P.W.117 is categorical to the effect that there was serious threat to public peace and public tranquillity due to the activities of naxalites and anti-social elements and it was anticipated that those anti-social elements may indulge in activities affecting law and order, a prohibitory order was issued earlier, which was in force till 31.1.2000. By the said fact it can be reasonably presumed that the prohibitory order was in force on the date when the subsequent prohibitory order under Ex.P-214 was issued.
38. In this context, the evidence of P.Ws.120 & 121 can be referred to. P.W.120, the Sub Inspector of Police was present in the Dharmapuri Town Police Station on the date of occurrence. As he received information as to the conviction of Selvi.J.Jayalalithaa in the Pleasant Stay Hotel Kodaikanal case, he left the police station for bandobust. At about 1.00 p.m., he saw some 18 persons belonging to AIADMK party under the leadership of one A.S.R.Vetrivel causing traffic hindrance near Erumakal lake. He arrested all of them and registered a case in Cr.No.187 of 2000 for the offence under Sections 143, 188 IPC read with 7(1)(A) of Criminal Law Amendment Act. The arrest was made under Section 188 IPC as well relating to the disobedience of the order duly promulgated by Thiru Joshi Nirmal Kumar, P.W.117. Incidentally, he also happened to be the officer who registered the complaint, Ex.P-120 in Crime No.188 of 2000 on the file of Dharmapuri Town Police Station. One Thiru Palanimuthu, P.W.121, who was working as the Sub Inspector of Police, Adhiyamankottai Police Station, on instruction, went around for police bandobust and he found 17 persons demonstrating by blocking the National Highways in Nallampalli village under the leadership of one Thiru.Poongavanam and arrested them as the demonstration was in violation of the prohibitory order and registered a case in Cr.No.159 of 2000 under Sections 143, 193 IPC read with Seciton 7(1)(A) of the Criminal Law Amendment Act round 4.00 p.m. He made arrangements for the accused to be remanded. We have no reason to discard the testimony of both the above witnesses as to the arrest of some of the persons for violation of the prohibitory order and registration of the case under Section 188 IPC among other provisions. The evidence of P.Ws.120 & 121 would go to show that the prohibitory order under Ex.P-214 was issued and was in force on the date when the occurrence had taken place i.e., on 2.2.2000 and in this regard the contention that the prohibitory order was not made known to the public cannot be accepted.
39. A conjoined consideration of the evidence of P.Ws.117,120 & 121 would show that the prohibitory order was in force at least 15 days prior to the date of occurrence and on expiry of the said period of 15 days on 31.1.2000, P.W.117 has issued the subsequent order under Ex.P-214 on 1.2.2000 and the same was made known to the public. Hence the contention that the public was not made known of the prohibitory order cannot be accepted.
40. This leads us to the next contention as to whether the road-roko/demonstration was peaceful. The first incident relates to the demonstration and damages to the three buses owned by the State Transport Corporation. The prosecution has let in evidence and the witnesses were classified under two heads namely, (i) Media persons, Press persons and Photographers, and (ii) the Police Officers who were present in the scene of occurrence. P.W.41, Thiru Mani @ Rangamani is a reporter of Sun TV. He was the Vice President of the Tamil Nadu Press Reporters Association during the year 2000. Later on, he became the State General Secretary of the said Association. According to him, on hearing the news as to the demonstration/agitation, he went to the scene of occurrence and saw the demonstration under the leadership of A-1 Rajendran. Though he has initially stated that the demonstration was peaceful, but after 10 to 15 minutes he heard a noise from the scene of occurrence and saw smokes coming out of one of the three buses which were parked behind the demonstrators. Some of the people gathered and they splashed water to douse the flames and in the meantime, Fire Service came to the spot and doused the fire. His evidence is clear that though when he first saw that the demonstration was peaceful, later on it turned violent. The evidence of P.W.43, a reporter of Malai Murasu, Tamil daily is also to the effect that near MGR statue at Illakkiampatti 20 or 25 persons were blocking the road and he saw A-1, A-6 and A-12 as well. His evidence is also categorical that all the three buses belonging to the State Transport Corporation were damaged and some of the seats in one of the buses in Route No.7B were burnt and he also saw smoke coming out of the bus and he photographed. The above version of P.Ws.41 & 43 is also corroborated by P.W.44, the Proprietor of Sri Nandhu Studio and he himself happened to be a photographer. His evidence is also categorical as to the damages caused to Route No.7B town bus, Route No.35 bus and the bus bound for Hosur and he photographed the incident. He had taken 10 photographs in Exs.P-40, P-41, P-42, P-43, P-44, P-45, P-46, P-47, P-48 & P-49 series. P.W.45 is a reporter of Dinamani Tamil daily, who too corroborates the evidence of P.W.44 in respect of the damages caused to all the three buses. He has deposed that the glasses of Route No.7B town bus were broken and some of the seats in that bus were burnt and P.W.44 took photographs. The evidence of P.W.46 and P.W.49, a reporter of Jaya TV, also corroborates the above version of the witnesses. The damages caused to the three buses are also spoken to by P.W.52, Sun TV reporter.
41. The next set of prosecution witnesses to speak about the fact as to whether the road-roko/demonstration was peaceful or not, the evidence of P.Ws.61, 62, 63 & 65 can be referred to. It is the evidence of P.W.61, the Sub Inspector of Police (Traffic), Dharmapuri Town Police Station that he was on his routine patrolling duty at the relevant point of time, he saw nearly 25 persons holding AIADMK flags in their hands under the leadership of A-1 sitting and blocking the main road near Illakkiampatti. Just behind them, the bus belonging to Hosur and Route No.7B and Route No.12 town buses were parked and those buses were damaged. He has further deposed that he informed the crowd to disperse as there was prohibitory order and the crowd did not adhere to his request. He has also identified A-1, A-2, A-3, A-6, A-10, A-11 and A-18.
42. P.W.62 was a Head Constable attached to Dharmapuri Town Police Station. He has also spoken that while he was on duty at about 1.45 p.m., at Ilakkiampatti, he saw 25 or 30 persons blocking the road under the leadership of A-1 and behind them the above three buses were parked and were found damaged. In fact he also saw some of the seats of the Route No.7B bus were set on fire and were burnt. He had identified A-1, A-2, A-3, A-5, A-6, A-7, A-9, A-13, A-14, A-17, A-18, A-29 and A-31. P.W.63, Grade I Constable attached to Special Branch working at Dharmapuri Town Police Station has also corroborated the evidence of P.Ws.61 & 62. Likewise, P.W.65, Grade I Constable has also corroborated the above version of P.Ws.61 & 62. P.W.63 speaks of the presence of P.W.61 as well A-1, A-6 & A-20 to A-30.
43. P.W.4, the driver of the bus bearing Regn.No.TN-38-C-5550 in which the girl students were travelling, has deposed that after they returned from Hogenakkal, they took lunch. At the time when the buses were parked, he saw nearly 100-150 persons coming in a group with sticks and stones and they also threw the stones on the shops and forced the shopkeepers to close the shops. The above version is also spoken to and amply corroborated by the cleaner of the bus, P.W.5. This is also spoken to by most of the students who travelled in the bus namely, P.Ws.6,7,8,9,10 & 11 and the other witnesses as well. The witnesses particularly, the driver, cleaner and students are all independent and there is no reason for them to falsely depose before the Court as to the agitated mood of the group which they saw when they came to Dharmapuri and after finishing their lunch. The prosecution has amply proved through the unassailable evidence of the witnesses that the demonstration was not peaceful and the demonstrators were aggressive.
44. In view of the above, the next question to be considered is whether the three buses in question namely, bus bound for Hosur, Route Nos.7B & 12 town buses were damaged by the accused. Though we have found that the demonstration was not peaceful, it is to be considered as to whether the accused, as identified by the witnesses, have caused damage to the buses. In fact, apart from P.Ws.61, 62 & 63, P.Ws.97 & 99 have also spoken to about the implication of some of the accused. P.W.97 was a law student at that time and he has identified A-1 to A-6, A-9, A-13, A-21, A-22, A-24, A-30 & A-31 forming part of the demonstrators and he saw A-24 damaging the Hosur bound bus. He has also implicated A-2 for having brought petrol from a nearby shop belonging to one Govindasamy and set fire to the bus. He has also spoken that A-23 prevented the people from dousing the fire.
45. In order to corroborate the above version, the prosecution has examined P.W.99. P.W.99 is an Advocate belonging to Dharmapuri and has spoken to of A-1 to A-4, A-10, A-12, A-19, A-22, A-24 and A-25 as members of the demonstration. So far as the damages caused to the bus are concerned, he specifically implicated A-2 for having set the fire to the Route No.7B town bus. He has also corroborated the evidence of P.W.97 that while the bus was in flames some persons tried to douse the fire, but A-23 prevented them from dousing the fire by throwing water. Learned senior counsel has submitted that both P.Ws.97 & 99 were brought to the spot much later only to fill the gap and to show the link for the first and subsequent occurrence. The credibility of their evidence is questioned on the ground that while P.W.97, after the occurrence, has taken that much care to give a fax message to the Chief Minister as well as the District Collector, did not care to go to the police station to give a complaint and he was rest contented to stay back in his house. Equally the evidence of P.W.99 also cannot be believed as his conduct is also abnormal. He has stated that after the occurrence, he went to his house and stayed back without even informing the police. The learned senior counsel has submitted that P.W.99 is a responsible person and he himself being an Advocate ought to have given the complaint and the failure to even going to the police to inform what had happened would throw a serious doubt as to the credibility of his evidence. He would also submit that both of them kept quiet till the police themselves came and took their statements.
46. Both P.Ws.97 & 99 have spoken to about the damages caused by A-2 and the prevention by A-23 of the persons who came to douse the fire. Whether their evidence should be totally discarded in view of their conduct alone. In our opinion, their evidence is highly natural and they are trustworthy, as they have not falsely implicated all the accused for causing damage to the buses and they are local and independent witnesses, one being a law student and another being an Advocate. Though both the witnesses have spoken as to the demonstration and implicated most of the accused, they have spoken only about A-2 for having set fire to the Route No.7B town bus and there is absolutely no material to show as to why both P.Ws.97 & 99 should falsely implicate A-2. Equally, for the same reason, the implication of A-23 for having prevented the persons in and around the bus from dousing the fire also cannot be disbelieved. There are ample evidence to show that A-2 & A-23 were part of the demonstrators as has been spoken to by some of the witnesses. In fact P.W.62 would say 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 A-2 and A-23 for causing damage to the buses. Though P.W.97 implicated A-24 as well for causing damage to the bus, A-24 was not spoken to by P.W.99. In the absence of any corroboration, it cannot be held that A-24 also damaged the bus.
47. The damages to the buses are also spoken to by P.Ws.53, 54 & 55, the drivers & conductor of the buses. Of course, after the incident had taken place, they had not given the complaint, but had informed their superior officer namely, Senior Assistant Engineer, P.W.60. P.W.60 admittedly is not an eye-witness and all that he has referred to in the complaint is in regard to the damages caused to the buses. A careful reading of the evidence of press and media persons, police officers who were present in the scene of occurrence as well as the complainant, we could not lay our hands to any of the overt acts of causing damages to the bus by any of the accused except A-2 & A-23. Of course, all the accused have violated the prohibitory order by forming themselves into an unlawful assembly and accordingly, they are liable to be punished under Sections 188 and 147 IPC. As there is no evidence to the effect that A-24 was in possession of weapon, the conviction of A-24 for the offence under Section 148 IPC cannot be sustained and instead he is liable to be convicted for the offence under Section 147 IPC only.
48. Let us now discuss the submissions as to the second occurrence. Before we dwell upon the factual aspects in this case put forth by the learned senior counsel for the accused as to the defective investigation, we propose to deal with the law laid down by the Supreme Court wherever the defective investigation is pleaded to disbelieve the case of the prosecution.
49. The issue as to how far the prosecution case could be defaulted in view of the defective investigation is not new to the Courts, as it had come up for consideration before the Supreme Court in more than one case. In Chandra Kanth Lakshmi v. State of Maharastra , the Supreme Court while considering the lapse by the investigating officer and due to such lapse has held that the benefit should go to the accused when the theory of the prosecution witness was inconsistent. It has been further held that “in view of the highly defective investigation, the benefit of doubt must be given to the accused”. Equally it is also held that if on a proper evaluation of various facts and circumstances if there is apparent inconsistencies in the case of prosecution solely due to the omissions on the part of investigating officer, there would be no justification to throw away the prosecution case solely on the ground that the investigation was highly defective.
50. In Karnal Sing v. State of Madhya Pradesh , 1995 SCC (Crl.) 977, the Supreme Court has held that the defect in the investigation by itself cannot be a ground for acquittal. The same principle has been once again reiterated by the Supreme Court in Ram Bihari Yadav v. State of Bihar, (1998) SCC (Crl.) 1085, and has held that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice.
51. In Paras Yadav v. State of Bihar, 1999 SCC (Crl.) 104, the Supreme Court has held that if the lapse or omission committed by the investigating agency or because of negligence, there had been defective investigation, the prosecution evidence is required to be examined de hors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand in the way of evaluating the evidence by the Courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party and in the process to the community at large.
52. In State of Karnataka v. K.Yarappa Raddy, 2000 SCC (Crl.) 61, the Supreme Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the Investigating Officer could be put against the prosecution case. The Supreme Court in Paragraph 19 has held as follows:
19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable , should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court msut have predominance and pre-eminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeitthe investigating officer’s suspicious role in the case.
53. The principle in Ram Bihari Yadav’s case was once again reiterated by the Supreme Court in Amar Singh v. Balwinder Singh, 2000 SCC (Crl.) 641 and in Allarakha K. Mansuri v. State of Gujarat 2002 SCC (Crl.) 514.
54. In Rambali v. State of U.P.. 2004 SCC (Crl.) 2045, the judgment in Karnel Singh’s case was reiterated and the supreme court had observed that “in case of defective investigation the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective”.
55. A deep and careful reading of the law laid down by the Supreme Court would lead us to hold that the defective investigation need not necessarily result in acquittal. Whenever such plea is put forth, the Court must evaluate the other evidence with great and extra caution. Any deficiency or irregularity in the investigation need not necessarily lead to indescribable of the case of prosecution if it is otherwise proved with sufficient materials. The Court must also be cautious that in case of defective investigation and while scrutinising the other materials, any conclusion arrived by the court should not ultimately lead to the miscarriage of justice. The conduct of police officials during the course of the investigation shall not stand in the way of Court in evaluating the evidence to find out the real truth.
56. Now let us consider the facts keeping the above law in mind to find out whether the defects pointed out by the learned senior counsel for the accused in the conduct of inquests and more particularly, the investigation done by P.Ws.116, 121 & 122 could be a ground to reject the case of the prosecution. In this context, we could see that the burning of the bus in which three girl students were gutted to fire had happened at 2.30 p.m. in which the A-2 to A-4 are said to have involved in burning the bus. The beginning of the violence in damaging the buses at Ilakkiampatti is said to have continued to the Bharathipuram bus burning also and thereafter, the accumulation of students of Dharmapuri Arts College and Coimbatore Agricultural University College had made the police at the place of occurrence to be very anxiety with tension and in the midst the investigating officers had to do their investigation like inquests and other seizures and therefore, there was every likelihood of commission of mistakes. It could also be seen in the evidence of P.W.87 that the students collected at the place of occurrence had not even spared the ambulance and the vehicle which took the bodies of the deceased girls Kokilavani, Hemalatha and Gayathri from the place of occurrence for conducting autopsy. Therefore, we could see that the contradictions or the defects found in the complaint, the consequent F.I.R. and the inquests could be explained by way of other evidence adduced on the side of the prosecution to prove its case in other respects. The earlier investigation done by P.Ws.116, 121, 122 will not in any way contradict the subsequent investigation and the culmination of framing of charge against the accused. If at all there are any minor discrepancies occurred due to the above facts, the investigation can only be called defective. Even in cases of defective investigation, the prosecution case could be believed, if other evidence points to the guilt of the accused. It is also to be noted that initially the investigation was carried on by P.Ws.117, 121 & 122. Having regard to the very nature of defective investigation, the Government itself thought it fit to transfer the investigation to CBCID. The submission as to the defective investigation initially gave us some anxious moments and we were at first blush inclined to think that the accused were prejudiced. But on a closure scrutiny of the entire materials and the evidence, we have every reason to think that the loopholes in the investigation were left to the help of the accused at the guise of innocent girl students.
57. Incidentally, one more argument was advanced by the learned senior counsel for the accused that the two occurrences are entirely different and the prosecution has erred in clubbing both the occurrences and put the accused on trial. They would also submit that so far as the first occurrence is concerned, the complaint was given at 8.00 p.m., only when the occurrence had taken place at 12.30 p.m. On the other hand, the second occurrence had taken place at 2.30 p.m., and the complaint was given at 3.30 p.m. Both the complaints were by two different individuals namely, P.Ws.60 & 87. We find absolutely no merit in the said submission. Though the first occurrence had taken place at 12.30 p.m., the evidence of the conductor and driver of the buses is categorical that they had gone to their office to report the matter to higher officials. Only thereafter, the complaint was given at 8.00 p.m. On the other hand, the second complaint was lodged by the Village Administrative Officer, P.W.87 immediately after the occurrence. Our discussion on the evidence would show the presence of A-2 in the earlier occurrence as well as the subsequent occurrence to indicate that the second occurrence is the fallout of the second occurrence and the cause for both demonstration and the consequential burning of bus was one and the same. Merely because there were two separate complaints, it cannot be contended that both the complaints cannot be treated as one for filing charge sheet and conduct of trial. Incidentally it can be also mentioned that none of the accused have challenged with vigour as to the trial in respect of both the occurrences under one charge sheet. Hence the said contention merits no acceptance and is liable to be only rejected.
58. As we have rejected the contentions relating to the prohibitory order, the defective investigation as well as the clubbing of the two complaints, we now proceed to consider the case of the prosecution on merits as put forth through the witnesses. As P.W.1 is the eye-witness and led the students in their tour, we are inclined to discuss her evidence in detail. On a careful perusal of the evidence of P.W.1, we could see that P.W.1 was working as Professor and Head of the Deparment of Acronomy and SS and AC, Horticulture College and Research Institute, Periakulam, Theni District and she was working in the Agricultural University, Coimbatore for the past 19 years and she and P.W.2 namely, Akila were entrusted with the duty of accompanying 47 girl students in the educational tour conducted along with 54 boy students who were taken in separate buses under the supervision of Dr.Christopher Lourduraj and Velayutham. They started the educational tour on 22.1.2000 and they visited many places. The bus which carried the girl students was bearing Regn.No.Tn-38-C-5550 driven by its driver Kandasami and the Cleaner Jaganathan and one Masdoor Natarajan also accompanied them. On the last day of the tour i.e., on 2.2.2000, all of them went to Krishnagiri and took their breakfast and returned to Paiyur and had the class at Paiyur and from the said place, they planned to go to Yercaud and since the bus driven by one Driver Majid could not climb the roads in the hillock, they planned to go to Hogenakkal and therefore, they wanted to have their lunch at Dharmapuri and accordingly, they went to Dharmapuri by 11.00 a.m., they attended class and on the way in nursery gardens and they reached Dharmapuri by 12.30 p.m. and parked their bus in front of Saravana Bhavan Hotel and the students were instructed to take their lunch or to get parcel from the said hotel and they were allowed 45 minutes and accordingly, they went and took lunch or parcel and at that time, the students had informed her that the former Chief Minister Ms.J.Jayalalitha was punished with imprisonment for one year and it was flashed in the television news. She could see the tension prevailing in the said place and after all the students had come to the bus, she, Dr. Velayutham, Dr. Christopher Lourduraj had gone to inform the Vice Chancellor of the University and to get his guidance. Thereafter the P.A. to Vice Chancellor was contacted and accordingly they were instructed to keep the students in a safer place and not to move to any other picnic spot and therefore, they have returned to the bus and at that time, a crowd was shouting and was crossing them and their bus was parked in Old Petrol Bunk in which the girl students and boy students were safely boarded the bus. At that time, a violent group holding AIADMK flag had crossed them by pelting stones and insisting the shop owners to close down and therefore, the students had shut the shutters and were kept quiet. They permitted three students viz., Radha Rukmini, P. Priya and G.S. Priya to get down at Dharmapuri as their parents had come to take them and leaving those three girl students, they have planned to go to Collector’s Office for safety purpose and accordingly when they started the bus, the bus carrying the girl students was plying front followed by the bus boarded by the boy students.
59. When the buses were taken to the Collector’s Office and crossed 3 Kms distance, the cars and other vehicles which were plying in front of the buses were stopped in the road itself and therefore, the driver of the bus in which the girl students were travelling was parked under a tamarind tree. At that time, it was 2.20 p.m. and the back door of the bus was closed and the luggage of the students were removed from the top of the bus and were placed in the space available at the back side for taking those luggage for the students who wanted to get down and therefore, the back door was closed and the front door alone was open and at that time a person having a yellow coloured plastic can came and poured the liquid from the said can on the single seat and the smell emanated from the said liquid had made her to understand that it was petrol and thereafter, when it was poured on the second seat, the said Masdoor Natarajan stood up and a person who clad with white shirt and white dhoti had come up and poured petrol on the first seat and she could see the person who was clad with dhoti and white shirt was moderate in complexion and had thick mustache and he was about 5 3/4 feet height and was having his hair style by combing his hair towards upwards and she also identified A-3 in open Court, that A-3 was the person who poured petrol on that day with such description. Immediately on pouring petrol P.Ws.1 & 2 had begged him that they are working at Coimbatore Agricultural College and the girl students are inside the bus and let them be got out of the bus and in the meantime, A-3 was seen shouting that ‘fire the bus with persons, then only a lesson would be learnt’ and the left side and front seats of the bus immediately caught fire. P.W.1 and other girl students managed to get down from the bus and instructed all the girl students to get down. However, while getting down, her saree caught fire and the melted saree stuck to her legs and she could not move and therefore, she fell down and the girl students who were in the melee of getting down from the bus, had stamped her in their attempt to escape and P.W.1 had immediately alerted herself and stood up and in the meanwhile the bus was catching fire in the front side with black smoke and the black smoke had engulfed the bus as well as the top of the bus. The boy students and the Professors who came in the second bus had come for help and opened the shutters of the bus and saved the girl students by dragging them through shutters and in the melee, P.W.1 could not assert that all the girl students had escaped from the incident and thereafter, when they counted the girl students, they could not find out three girls and they were Hemalatha, Kokilavani and V. Gayathri and the girl students escaped from the fire were complaining that they had got irritations all over body and suffocation and they were crying for help. However, they were given with water treatment obtained from the nearby fields. Some of the students were taken in a jeep which came by that side to Dharmapuri Government Hospital by Akila. Thereafter P.W.1 reported all the matters to the Vice Chancellor and also said that three girls were missing and the students were in a tensed mood and for that she was asked by the Vice Chancellor to make the students to meet with him. In the meantime, the fire brigade had come and they were attempting to put off the fire. Thereafter, the injured girl students were taken in yet another bus by P.W.1 for taking treatment in the Government Hospital and after admitting them, she returned to the place of occurrence where the bus had completely gutted to fire and the fire was extinguished by the fire brigade and they broke open the back door and they took three bodies of girl students which were charred to death and P.W.1 could identify that the body which is adorned with pink cloth belonged to Gayathri for her she had already given permission to get down at Mechery and P.W.1 also identified the bodies of those persons and thereafter, she went to Government Hospital and was taking treatment for her injury and also helped the girl students who were taking treatment. P.W.1 had also identified the bodies of the deceased persons when police have enquired her. She had also spoken about the identification parade held by the Magistrate, P.W.89 who had spoken that she had identified A-3 before him, who had participated in the said incident. She had also identified the charred bus-M.O.5 in which they travelled for educational tour.
60. The said evidence of P.W.1 was corroborated by the evidence of P.W.2 who is also a Professor working in Coimbatore Agricultural University. She had also identified A-3 who participated in the crime. She had also confirmed that she had begged the accused not to do anything after he had poured petrol on the sides of the bus and they had requested them that the girl students and herself would get down from the bus and their cry was not considered and the other person had lit fire in the match box and put it inside the bus. She had also identified A-3 in the Court.
61. The girl students who were travelling in the bus and sustained injuries due to the fire and escaped from the gulf of the fire were examined as P.W.8 to P.W.28 and they had spoken about the burning of the bus. They had also spoken that they along with P.Ws.1 & 2 had begged the persons who poured petrol and lit fire to the bus that they may be permitted to get down from the bus before they do anything in respect of the bus and for that one of the persons had told them, ‘the persons in the bus should also be gutted along with the bus and then only they would learn a lesson’ and in the meanwhile, the bus caught fire and the front side was catching fire swiftly. The witnesses viz., P.W.8, P.W.11, P.W.12 have identified A-3 in the open Court that he was the person who had poured petrol in the bus. Similarly, P.Ws.13 and 14 had identified A-2 as a person who had also participated in the crime of firing the bus at the time when it was lighted to fire on the date of occurrence.
62. P.W.4 is the driver of the bus in which the girl students were travelling. He had corroborated the evidence of P.Ws.1 & 2. Apart from that he would speak to the effect that the persons who poured petrol in the bus through the first shutter and the second shutter of the left side of the bus had come in a bike with white shirt and dothi and another person with grey coloured stripped shirt and pant, which was driven by yet another person who had alighted them in the front of the bus and the said person who drove the bike was keeping the bike in a running condition and was watching the persons who poured petrol on the bus and P.Ws.1 & 2 and other girls had prayed the said persons not to pour petrol on the bus. But however they shouted at the girls to fire them also along with the bus and therefore he came in front of the bus and in the meanwhile, the persons who poured petrol, lit the fire, went towards the bike and sat over the bike and slipped away in the crowd. In the meanwhile, the fire broke out in the front side of the bus and every girl student was crying for life and smoke had made them to suffocate and they were taken with the help of the students who came in the second bus and in that fire three girls were gutted and other girl students sustained burn injuries. He had identified A-2 and A-4 as the persons who had sprinkled petrol through the first shutter and was driving the Motor Cycle respectively at the time of occurrence. The said motorcycle was also identified by him.
63. Similarly, the cleaner of the bus who was examined as P.W.5 had also corroborated the evidence of P.W.4. He had identified A-3, A-2 and A-4 in the open Court as the persons who had poured petrol through the first shutter and the persons who were clad with grey coloured stripped shirt and wearing a pant and was pouring petrol and was lighting fire and the person, who was keeping the motor cylce running for the purpose of taking the other two persons after lighting fire of the bus respectively. He had also identified the motor cycle used by A-2 to A-4 which was also marked as M.O.5. These evidence adduced on the side of the prosecution would go a long way to show that the incident had happened at Bharathipuram under a tamarind tree at about 2.30 p.m. on 2.2.2000 and the accused A-2 to A-4 were taking petrol in yellow plastic cans and A-2 and A-3 had rode the motorcycle-M.O.5 belonging to A-4 and had parked in a running condition by A-4 and A-2 and A-3 had taken the petrol in plastic cans and poured them through the first and second shutter of the left side of the bus and A-3 lit fire to the bus, despite P.Ws.1 & 2 and other girl students had pleaded for mercy and not to do anything until they get down from the bus. But A-2 and A-3 shouted at them that they also should have been gutted then only a lesson would be learnt and by saying so, they put fire to the bus and returned to the motor cycle M.O.5 and sat over it and slipped away from the scene of occurrence along with A-4.
64. It is argued on behalf of the appellants that this evidence of prosecution is said to be not reliable as the witnesses have contradicted in their cross examination and therefore, the said contradictions should go in favour of the accused. The learned senior counsel appearing for A-2 to A-4 submitted that the earlier investigation done by P.Ws.116, 121, and 122 are contradictory to the evidence of these witnesses and therefore, these evidence of witnesses may not be reliable. We have already noted that the earlier investigation was done by P.Ws.116, 121 and 122 amidst commotion and tension in a place where buses were gutted to fire and the subsequent agitation by the students were also on and the investigating agencies were doing the investigation amidst the deteriorated law and order in the place of occurrence. Therefore, those contradictions may utmost be considered to be a laxity in the investigation and the said defect in the investigation may not affect the consistent and cogent evidence of the prosecution witnesses implicating A-2 to A-4 for the heinous crime.
65. The learned senior counsel appearing for A-2 to A-4 would submit that the seizure of the remains of the burnt seat and the chemical examination of the same would go a long way to show that there was no reminiscence of petrol used for firing the bus and this could be evidenced from the evidence of the Chemical Analyst and his report produced into Court. He would refer to the evidence of the Chemical Analyst-P.W.90 to that effect and the reports Exs.P-97 and P-102 for the purpose of showing that there was no presence of petrol from the parts of the seats removed from the burnt bus-M.O.5.
66. On a careful perusal of Exs.P-97 and P-102, we could see that there were no traces of kerosene, petrol, diesel or other inflammable materials in the said two items sent for chemical examination. However, on a careful perusal of the evidence of P.W.90, we could see that whenever fire had been extinguished by the Fire Brigade by using water on the subject gutted to fire and if the said piece of subject was examined after 20 days, the detection of petrol, kerosene or diesel or any other inflammable substance cannot be detected. Apart from that he would further depose that the Assistant Director of Forensic Sciences Department (Chemistry), Mylapore, Chennai had written letters to ADSP, CIT CBCID, Chennai in Exs.P-145 and P-147 to the effect that the inflammables could not be detected when they were completely burnt and after vapourisation from the residue. Similarly, it is explained that it is possible for any sprinkled inflammable to vapourise and burn completely. Further it is seen from Ex.P-145 that it is possible for inflammables such as petrol to vapourise and burn completely without leaving any traces in the ash and if water is used for extinguishing the fire, that would reduce the chances of detection of inflammables in the ash. The said opinions were given by the Assistant Director through his letters and those letters viz., Exs.P-145 and P-147 were proved by P.W.90 by identifying the signature of the Assistant Director, Mr. K. Sundararajan. It is also not disputed that the said Sundararajan had left the job and was not available for examination. Therefore, the arguments advanced by the learned counsel for A-2 to A-4 for the absence of detection of petrol in the residue and the ashes collected from the bus-M.O.5 would help them to show the prosecution case as false one cannot be accepted.
67. After a careful perusal of the documents advanced on either side, it is found that the arrest of A-4 in some other case was long after this incident and the investigation in respect of this case was amidst commotion and therefore, the arrest of A-4 in some other case without arresting in this case cannot in any way show that A-4 was not involved in this crime.
68. The prosecution has also examined the seller of Hero Honda Motor Cycle to A-4 as P.W.71 and the insurer of the vehicle as P.W.72 in order to prove that the Hero Honda Motor Cycle which was seized belongs to A-4 and it was used for the purpose of commission of offence. The seizure of motor cycle and the evidence of P.Ws.71 & 72 would go a long way to show that the motor cycle belonged to A-4 and he used the vehicle for the purpose of committing the crime along with A-2 and A-3. This would also corroborate the evidence of P.Ws.1, 2 & 4 to 28.
69.From the identification parade conducted by P.W.89 on two occasions, we could see that the accused were identified by the witnesses even on the first day of identification parade as well as on the second day of identification parade. The non identification of the accused by the prosecution witnesses on the date of identification parade have been questioned in their evidence. The report of the first and second test identification parade is produced by P.W.89 as Ex.P-137. On a careful perusal of the evidence of P.W.89 and Ex.P-137 and Ex.P-142, the report of the identification parade on 18.2.2001, it is seen that the witness Farooq had identified A-4 for three times and witness Ansar Basha had identified A-4 for three times. Witness Kamal (P.W.86) had also identified A-4 for three times and on the second test identification parade organised on 22.2.2000, the witness P.W.1 Dr. Latha identified A-3 on three occasions, Akila P.W.2 had identified A-3 on three occasions, witness Srija Mohan had identified A-3 for three times and also A-2 for two times, P.W.8-Preetha had identified A-3 alone for three times, P.W.12- Suganthi had identified A-3 alone for three times, P.W.13-Thilagavathi had identified A-2 alone on three times, P.W.14-Anitha and one Guhapriya had identified A-2 for three times, the witness Anitha had identified two times A-2 and A-4 and for the third time she identified A-2 alone. The witnesses Revathy, Selvanayagi and Sankari Meena had identified A-2 alone for three times. P.W.4-Kandasamy identified A-2 for three times. The witness Natarajan had also identified A-2 for three times. P.W.5 Jaganathan had identified A-2 and A-3 on two times and at the third time, he identified A-3 and A-4. P.W.23 Gayathri had identified A-3 and A-2 for two times and A-2 alone for the third time. Witness Thenmozhi identified A-3 on all three times. The identification of the A-2 to A-4 by the witnesses coupled with the evidence of the learned Magistrate P.W.89 and the reports of P.W.89 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.
70. The arguments advanced by the learned Public Prosecutor would aptly apply to the present case also and the overwhelming evidence of prosecution witnesses would go a long way to show that A-2 to A-4 are involved in the commission of offence for burning the bus in which the girl students of Agricultural University had travelled with the intention to cause death of all the passengers, as they had no mercy to leave the girl students and the inmates of the bus to get down from the bus at the time of occurrence and thereafter lit fire to the bus which would only show that they aimed at the life of the girl students firing them along with the bus. Therefore, we are of the considered view that A-2 to A-4 had committed the offence as charged against them for the offence of murder punishable under Section 302 IPC.
71. The prosecution had examined P.Ws.1, 2 and 4 to 28 and marked Exs.P-198 to P-213, Accident Register copies of the injured girl students who escaped from the admitted burning of the bus and they would go a long way to show that injuries were sustained by P.Ws.9 to 10, 15 to 23, 26 to 28. The doctors who were examined as P.Ws.30, 34, 36 and 37 have proved the injuries sustained by the witnesses in the accident. Apart from this, other 30 inmates of the buses had escaped from the bus with minor injuries including P.Ws.1 and 2. The over all intention of A-2 to A-4 are found to be causing murder of 46 persons in the bus and this could be evidenced from the deposition of P.Ws.1 & 2 and other witnesses already discussed, would disclose that they have begged A-2 and A-3 when they were pouring petrol inside the bus that they would get down and thereafter whatever they want, could be achieved. But one amongst them had told that “vy;nyhiua[k; nrh;j;J bfhSj;J’;flh/ mg;ngh jhd; g[j;jp tUk;@/ The said uttering either by A-2 or A-3 would show that their intention was to kill everybody in the bus by firing the entire bus. Therefore, the evidence produced on the side of the prosecution would go a long way to show that despite 16 persons were found to have injured, three girl students were charred to death, the entire episode of firing the bus by A-2 to A-4 would show that the intention was to murder all the 46 inmates in the bus. Therefore, A-2 and A-3 are liable to be punished under Section 307 I.P.C. on 46 counts. A-4, who was assisting A-2 and A-3 by taking them to the occurrence spot and facilitated the commission of crime is also liable to be punished under Section 307 r/w 114 I.P.C. on 46 counts. Thus A-2 to A-4 are found guilty for the offences for which they are charged.
72. The learned Principal Sessions Judge found A-2 & A-3 guilty of the offences punishable under Sections 302 and 307 IPC, A-4 guilty of the offences punishable under Section 302 read with Section 114 IPC and Section 307 read with Section 114 IPC and sentenced them to death. Mr.V.Gopinath, Mr.S.Ashok Kumar and Mr.Sushil Kumar, learned senior counsel would also submit that the occurrence had taken place in a spur of the moment due to the emotion among the crowd and the atmosphere was tense and therefore, it is not one of the rarest of rare cases warranting imposition of death penalty. In support of the above submissions, he would rely upon the following judgments:-
(i) Mukund alias Kundu Mishra and another v. State of M.P., 1997 S.C.C. (Crl.) 799.
(ii) A. Devendran v. State of Tamil Nadu, 1998 SCC (Crl.) 220.
(iii) State of H.P. vs. Manohar Singh Thakur, 1998 SCC (Crl..) 1426.
(iv) Shri Bhagwan v. State of Rajasthan, 2001 SCC (Crl.) 1095.
(v) Lehna v. State of Haryana, 2002 SCC (Crl.) 526.
73. In Mukund alias Kundu Mishra’s case, even in case of brutal murder where an innocent lady and her four children were murdered for gain, the Supreme Court did not find the offence falling under rarest of rare cases and modified the sentence of death penalty with life imprisonment. In the said case two accused were convicted for the offence under Sections 449, 394 r/w 397 and 302 r/w 34 IPC for having trespassed into the residential house and committed murder of a house wife and her two children and looted their ornaments, other valuables and cash. The sentence of death was confirmed by the High Court and Supreme Court while considering the same, found that the case cannot be one of rarest of rare cases as exemplified in Bachan Singh’s case and Machhi Singh’s case and therefore committed the sentence of death to one of imprisonment for life.
74. In A.Devendran’s case, the death sentence imposed on one of the accused was committed to one of imprisonment for life on the ground that the deaths were not either diabolical, ghastly or gruesome. That was also a case of murder of two women and one male in the house for gain. The death sentence was imposed on the ground that as soon as the driver male member entered into the house he was shot by gun and number of persons who died in the incident is not the determinative factor for deciding whether the extreme penalty of death could be awarded or not. The Court also found from the prosecution evidence that there was no premeditated plan to kill any person and the main object was to commit robbery.
75. In State of H.P. v. Manohar Singh Thakur, again the Supreme Court interfered with the imposition of death penalty on the ground that nothing exceptionally gruesome about manner of committing murder to justify the death penalty. The Supreme Court observed that the murder by its very nature is shocking. But that per se does not justify the death penalty. That was also a case of murder for gain and the conviction and sentence was on circumstantial evidence.
76. Again in Shri Bhagwan’s case, a sentence of death penalty for the offence of murder of 5 members of the house at night and theft of ornaments and other articles came up for consideration before the Supreme Court. While committing the said sentence, the Supreme Court imposed the punishment of life imprisonment with a further direction that the accused should serve at least 20 years of imprisonment.
77. In Lehna’s case, the Supreme Court has observed that while awarding death sentence in rarest of rare cases the Court must give special reasons for imposition of death sentence. In paragraph 23 of the judgment, the Supreme Court categorised the following circumstances where the court should consider the award of death sentence:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to ‘arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g., murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When the murder of a member of a Scheduled Case or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of ‘bride burning’ or ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
78. Besides the above judgments, let us also look at the other judgments of the Supreme Court in regard to the imposition of penalty of death sentence. In Bishan Dass v. State of Punjab, , the Supreme Court affirmed the death sentence where cruel and inhuman act resulting in dastardly and pathetic deaths.
79. In Mahesh v. State of M.P. , the accused were convicted for five murders. The cause of which was marriage of a lady belonging to higher caste with a harijan boy and the court held the murder was extremely brutal, cruel, revolting and gruesome shocking judicial conscious and the death sentence would be proper and do good work as deterrent. The Supreme Court has observed further that “it would be mockery of justice to permit these appellants to escape extreme penalty of law that faced with such evidence and such cruel act to give the lesser punishment for the appellant would be to render the justicing system of this country. The common man will lose faith in court. In such cases he understands and appreciates the language of deference more than the informative jargon. But it does not mean that the court ignore need not defermative approach in sentencing process. But here there is no alternative. But to confirm the death sentence.”
80. In Surja Ram v. State of Rajasthan, 1996 SCC (Crl.) 1314, while considering the aggravating and mitigating factors on the circumstances in which the crime has been committed and the imposition of death penalty had observed as follows:
Punishments must also respond to the society’s cry for justice against the criminal.
81. In Sahdeo and others v. State of U.P., 2004 (10) SCC 683, the Supreme Court committed the death sentence into life imprisonment on the ground that though the conviction and sentence were for the offences that the accused armed with deadly weapons intercepted the bus in which the deceased were travelling and killed 6 persons in the bus and two in the house of stranger when the persons were running to save their lives, but failure to produce clear and distinct evidence to prove the actual overt acts of each of the accused.
82. The above judgments of the Supreme Court would show that imposition of death penalty is resorted to except rarest of rare cases and it depends upon the fact of each case. The offence must be ghastly, diabolical and gruesome. Imposition of life imprisonment for proved offence of murder is the rule and the imposition of death sentence could only be an exception. Imposition of death sentence cannot be resorted to, if otherwise the accused could be dealt with other punishment which would meet the ends of justice. In fact, even when the constitutional validity of Section 302 IPC empowering the Courts to award death sentence was questioned, the Supreme Court in Bachan Singh v. State of Punjab has observed that imposition of death penalty would be violative of Articles 14 & 21 of the Constitution. Nevertheless, in view of the amendment of the Criminal Procedure Code in the year 1973, the Court had discretion to award an alternate sentence of life imprisonment and such discretion has been recognised to impose the punishment of death penalty as well in rarest of rare cases. The Supreme Court also broadlined certain guidelines for exercise of the said discretion in awarding death sentence. The said law is reiterated by the Supreme Court in the subsequent judgment in Machhi Singh v. State of Punjab (1983 SCC (Crl.) 681).
83. We have found that the prosecution has established beyond reasonable doubt as to the involvement of A-2, A-3 & A-4 for the occurrence at Bharathipuram, while A-2 had poured petrol inside the bus, A-3 had set fire and A-4 had instigated. By their above act they have burnt alive three girl students to death and had made an attempt to commit murder of the remaining students inside the bus including P.Ws.1 & 2, the teachers who had accompanied the girl students. From the evidence, it is also clear that P.Ws.1, 2 and other girl students in the bus numbering more than 44 had sustained injuries warranting the punishment under Sections 302 IPC (3 counts) & 307 IPC (46 counts).
84. P.W.1 in her evidence is categorical that while A-2 to A-4 attempted to pour petrol and set fire to the bus she begged them that the girl students are inside the bus and at least they should allow them to alight from the bus before setting fire to it. She would add that even after the said request, A-3 has stated that only if the bus is set on fire, they will understand. For better understanding, we propose to extract her very evidence in these words:
85. The above version of P.W.1 is amply corroborated by the evidence of P.Ws.2,3,4 & 5. Keeping the law laid down by the Supreme Court, which we have discussed in the earlier portion of the order, we have every reason to hold that the offence was diabolical, ghastly, brutal and gruesome.
86. The Indian Criminal jurisprudence is based on a combination of deterrent and reformative theories of punishments. While the punishments are to be imposed to create deter amongst the offenders, the offenders are also to be given opportunity for reformation. With the above object only, Section 354(3) of Cr.P.C. was drafted for recording the special reasons by Courts for imposing death punishments in capital offences.
87. The question as to whether a case falls under the category of rarest of rare cases or not would be left open to the Court’s discretion. However, before exercise of discretion the court must keep in mind the very important principles regarding aggravating and mitigating circumstances of the case and full weightage should be given to the mitigating circumstances and even after that if the court feels that justice will not be done if any punishment less than death sentence will be awarded. The heinousness of the crime is also a relevant factor for the choice of the sentence. For deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which the crime has been committed are to be delicately balanced in a dispassionate manner and discretionary power should be exercised by the court depending upon the particular circumstances of the case.
88. 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 cannot endure under serious threats. Proper sentence would depend on the nature of the offence and the manner of its execution. It should be either corrective or deterrent and it need not as a general rule would only be corrective in all cases. This court is alive not only to the right of the criminal to be awarded just and fair punishment by administering justice tempered with such mercy as the criminal may justly deserve, but also to the rights of the victims of the crime to have the assailant appropriately punished and the society’s reasonable expectation from the court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. The Court must be alive to the basic criminal justice system that while innocent should not be punished, the guilty should also not be let off. The only requirement is that the Court must give special reasons for imposing death penalty and such reasons shall not be desolate.
89. Apart from murder committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner, it may also be considered such murder is revolting and disorderly manner so as to arose intense and extreme indignation of the community and the victim is helpless woman.
90. The crime is an event in real life and is the product of nature flame of different human emotions. The courts are required to adopt a rational approach and judge the evidence by its intrinsic worth. The hyper technicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the larger interest of the society particularly the law and order problem and degrading values of life inherent in the prevalent system.
91. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind. The various punishments for various offences prescribed by the respective enactments and penal code reflect the legislative recognition of the social needs, the gravity of the offence concerned and its impact on the society. The duty of the Court must be to impose a proper punishment depending upon the criminality and desirability for imposing such punishments. When the power to award death sentence is deposited with the Court for the purpose of being used in deserving cases, exercise of such power is inevitable and it would be only within the spirit of penal provisions.
92. In the occurrence three innocent, helpless, hapless girl students were burnt alive to death. The accused were alive to the fact that the rear side door of the bus was locked and cannot be opened as the suit cases and other belonging of the students were dumped and the front door was alone opened. They were also aware that number of girl students were inside the bus and fearing untoward incident, the shutters of the bus were also closed. Knowing the above full well, they had poured petrol through the front side door entrance and set fire in spite of repeated requests made by the inmates to allow them to get down from the bus. The intention of the accused to set the bus on fire along with inmates was obvious except to murder all inmates of the bus to teach a lesson to somebody and certainly not the girl students and the teachers themselves. We cannot ignore one more fact namely, that A-4 had kept the engine of the motor cycle, M.O.5 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 P.Ws.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. Therefore, we have no reason to apply the yardstick that the accused should be given an opportunity for reformation. In this context, we also do not find any mitigating circumstances for imposing a lesser sentence. Instances of setting the buses on fire, particularly, belonging to the Government taking innocent public to peril are common nowadays even on petty reasons unmindful of not only the loss to the Government properties but also to the lives of innocent people. In these circumstances, imposition of lesser punishment in order to reform the accused is of no purpose and will not meet the ends of justice. Hence, in our opinion, A-2 to A-4 must face the punishment of death sentence and any other lesser punishment would not meet the ends of justice.
93. For all the above discussions, we convict and sentence the appellants/A-1 to A-14, A-16 to A-21, A-23 to A-26 & A-28 to A-31 only for the offences as detailed below, but acquit them of all the other offences:-
Accused
Nos.
Convicted
for offence under Section (s)
Sentence(s)
fine imposed
A-1,
A-5 to A-14, A-16 to A-21, A-23
to A-26 & A-28 to A-31
188(ii)
IPC
Each
to undergo S.I. for three months and to pay a fine of Rs .500/-, i/d to
undergo S.I. for one month.
147
IPC
Each
to undergo S.I. for one year and to pay a fine of Rs. 500/-, i/d to undergo
S.I. for one month.
4
TNP(PDL)Act r/w 149 IPC
Each
to undergo S.I. for two years and to pay a fine of Rs.3,000/-., i/d to
undergo S.I. for one year.
3(i)
TNP (PDL) Act r/w 149 IPC
Each
to undergo S.I, for one year and to pay a fine of Rs. 2,000/-, i/d to undergo
S.I. for six months. The above sentences are to run consecutively.
A-2
188(ii)
IPC
To
undergo S.I. for three months and to pay a fine of Rs. 500/% i/d to undergo
S.I. for one month.
147
IPC
To
undergo S.I. for one year and to pay a fine of Rs. 500/-, i/d to undergo S.I.
for one months.
4
TNP (PDL) Act
To
undergo S.I. for two years and to pay & fine of Rs. 3,000/-, i/d to
undergo S.I for one year.
3(i)
TNP (PDL) Act r/w 149 IPC
To
undergo S.I. for one year and to pay a fine of Rs.2,000/-i/d to undergo S.I.
for six months.
302
IPC (3 counts)
Sentenced
to death.
307
IPC (46 counts)
To
undergo R.I. for seven years and to pay a fine of Rs. 1,000/-, i/d to undergo
R.I. for six months under each count to run concurrently.
188(2)
IPC
To
undergo S.I. for three months and to pay a fine of Rs. 500/-, i/d to undergo
S.I. for one month.
147
IPC
To
undergo S.I. for one year and to pay a fine of Rs. 500/-i/d to undergo S.I.
for one month.
A-3
4
TNP (PDL) Act r/w 149 IPC
To
undergo S.I. for two years and to pay a fee of Rs.3,000/- i/d to undergo S.I.
for one year
3(i)
TNP (PDL) Act r/w 149 IPC
To
undergo S.I. for one year and to pay a fine of Rs. 2,000/-, i/d to undergo
S.I. for six months.
302
IPC (3 counts)
Sentenced
to death
4
TNP (PDL) Act
To
undergo S.I. for two years and to pay a fine of Rs.3,000/-, i/d to undergo
S.I. for one year.
307
IPC (46 counts)
To
undergo R.I. for seven years and to pay a fine of Rs.1,000/-, i/d to undergo
R.I. for six months under each count to run concurrently.
A-4
188(ii)
IPC
To
undergo S.I. for three months and to pay a fine of Rs. 500/-, i/d to undergo
S.I. for one month.
147IPC
To
undergo S.I. for one year and to pay a fine of Rs. 500/-, i/d to undergo S.I.
for one month.
4
TNP (PDL) Act r/w 149 IPC
To
undergo S.I. for two years and to pay a fine of Rs.3,000/-, i/d to undergo
S.I. for one year.
3(i)
TNP (PDL) Act r/w 149 IPC
To
undergo S.I. for one year and to pay a fine, of Rs.2,000/-, i/d to undergo
S.I. for six months.
302
r/w 114 IPC (3 counts)
Sentenced
to death
4
TNP (PDL) Act r/w 114 IPC
To
undergo S.I. for two years and to pay a fine of Rs.3,000/-, i/d to undergo
S.I. for one year.
307
r/w 114 IPC (46 counts)
To
undergo R.I. for seven years and to pay a fine of Rs.1,000/-, i/d to undergo
R.I. for six months under each count to run concurrently.
94. Accordingly, the reference in respect of A-2 to A-4 is confirmed and the criminal appeals in Crl.A.Nos.266, 267 & 226 of 2007 are dismissed. Crl.A.Nos.252 to 254 of 2007 are also dismissed with the above modification in the conviction and sentence. In view of the above disposal of the criminal appeals, the criminal revision petition is dismissed as no orders are necessary. Consequently, the connected miscellaneous petitions are also dismissed. It is seen from the records that A-1, A-5 to A-14, A-16 to A-21, A-23 to A-26 & A-28 to A-31 are on bail. The learned Sessions Judge is directed to secure the presence of the above accused and commit them to prison to undergo the sentences imposed. Bail bonds executed by them shall stand terminated.
95. After the pronouncement of the above judgment, Mr.P.N.Prakash & Mr.R.John Sathiyan, respective learned counsel appearing for A-1, A-5 to A-14, A-16 to A-21, A-23 to A-26 & A-28 to A-31 have submitted that since none of the witnesses have spoken as to the implication of these accused in respect of the second occurrence, where three girl students were burnt alive to death, the imposition of sentences to run consecutively can be reconsidered and instead, these accused can be directed to undergo the sentences concurrently.
96. We have also heard Mr.P.Kumaresan, learned Additional Public Prosecutor.
97. On a detailed discussion, we have found that these accused have not been spoken to by any witnesses as to their implication in the second occurrence, which we have found heinous, diabolical and gruesome and they were found guilty for violation of the prohibitory order and also formed an unlawful assembly in the demonstration alone. Hence, we are of the considered view that the submissions of the respective learned counsel should be accepted. Accordingly, the sentences ordered on A-1, A-5 to A-14, A-16 to A-21, A-23 to A-26 & A-28 to A-31 to run consecutively are modified and they are ordered to run concurrently.