9911796707
TMI Blog1996 (8) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... come up with this appeal by special leave. 2. More details of the case : On the fateful day (8.3.1993) the Super Express Bus was driven by PW-6 Lakshminarayana for operating service on the route Hyderabad-Chilakaluripet. The bus reached near a railway level crossing at Narasaraopet around 4.30 A.M. where it stopped to let two more passengers to board the bus which was already replete with passengers. Just after the bus was in motion again, PW-6 sensed smell of petrol and so he stopped the vehicle to verify the cause of it. Second appellant (Challapathy Rao) was dousing petrol inside the bus. First appellant (Vijayavaradhan Rao) had by then moved out of the bus and was ready with a match box. The fear-stricken passengers sprang on their feet and started making tantrums. Then second appellant exhorted the first appellant to get down after lighting the match stick which was implicitly carried out and the automobile was in flames in a trice. 3. A handful of passengers could wiggle out of the blazing vehicle in their thirst to live by escaping from the talons of fire. One of them (Baburao - PW-5) was chased by the first appellant and was caught. His trousers (pants) containing some cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isonment for life. It must be said in fairness to the learned counsel that he did not dispute the prosecution case that the bus with the passengers was put to flames at the time and place suggested by the prosecution. 9. We have been taken through the material evidence in this case. Regarding identity of the culprits the evidence seems to the overwhelming to support the conclusion concurrently reached by the two courts that appellants were the persons who set the bus ablaze. Inspite of concurrent finding arrived at by the two courts we felt it necessary to scrutinise the evidence. We may make a brief reference to the material evidence in this appeal, particularly when the High Court has chosen to confirm the death sentence passed on two persons. 10. PW-6 - Lakshminarayana (driver of the bus) and PW-7 Jangu Kalisia Wali (conductor to the bus) have identified both appellants in the trial court as the persons who committed this crime. We further note that PW-6 had correctly pointed out these appellants during test identification parade conducted by the judicial magistrate. PW-1 Narayana Swamy and PW-5 (Baburao) have testified to the respective roles played by each appellant in the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider that aspect as exculpative of the acts attributed to these appellants. Perhaps those victims would have though that in addition to the appellants there were two more persons to help them. That initial impression of two or three victims formed in the twilight is not enough to create any dent on the sturdy prosecution case which has been unfurled in the trial court by the witnesses. 13. The judicial magistrate who recorded the dying declaration took down the statements of PW-5 and PW-7 also as dying declarations thinking that they too might succumb to the burns. There is no doubt that when they survived, their statement cannot be used as evidence under Section 32 of the Evidence Act. The High Court has rightly observed so. But those two statements (Ext. P-71 and Ext. P-75, respectively) were relied on by the High Court on the premise that it is relevant and admissible as res gestae under Section 6 of the Evidence Act. 14. If those statements (Ext. P-71 and Ext. P-75) are admissible as relevant under Section 6 of the Evidence Act they become substantive evidence. So we have to consider whether Ext. P-71 and Ext. P-75 could be treated as res gestae. 15. The principle or law embod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, blocks the statement from acquiring legitimacy under Section 6 of the Evidence Act. High Court was, therefore, in error in treating Exts. P-71 and P-75 as forming part of res gestae evidence. 17. Though the statement given to a magistrate by someone under expectation of death ceases to have evidentiary value under Section 32 of the Evidence Act if the maker thereof did not die, such a statement has, nevertheless, some utility in trials. It can be used to corroborate this testimony in court under Section 157 of the Evidence Act which permits such use, being a statement made by the witness before any authority legally competent to investigate . The word investigate has been used in the section in a broader sense. Similarly the words legally competent denote a person vested with the authority by law to collect facts. A magistrate is legally competent to record dying declaration in the course of an investigation as provided in Chapter XII of the CrPC, 1973. The contours provided in Section 164(1) would cover such a statement also. Vide Magaeodan and Ors. v. State of U.P. [1983]2SCR45 . However, such a statement, so long as its maker-remains alive, cannot be used as substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nders sentence of imprisonment for life inadequate and calls for a death sentence: (2) Were the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? 21. In Dhananjoy Chatterjee v. State of West Bengal [1994] 1 SCR 37 in which one of us (Dr. Anand, J.), speaking for the bench has reaffirmed the said principle in the following terms; Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. This was reiterated in Bheru Singh v. State of Rajasthan [1994] 1 SCR 559. In the above cases as well as in certain other cases this Court confirmed the death sentence awarded as cases belonging to the category of rarest of the rare cases in consideration of the overall view adopted in each of such cases. 22. Trial judge, after narrating the reasons to award death sentence to the appellants, has observed that if this type of persons are allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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