Case: C.Magesh  Vs. State Of Karnataka

the bus” and “pelting of stones”. A33-Jagadish has been correctly identified by all the PWs, in deposition before Court. Further majority of the witnesses have assigned him the role of “pouring of kerosene” and PW-15 also mentions that “he set the bus on fire”. In addition to this A-33 has been assigned the role of “pelting stones”, “shouting slogans” and “blocking the exit of the bus” as well. Thus, there cannot be any escape for the aforesaid 5 accused from avoiding conviction and sentence awarded to them by Trial Court and confirmed in appeal by High Court. Even otherwise, there are concurrent findings of fact recorded against them, which cannot be interfered with in this appeal.44. However, on account of inconsistency, improper identification and in absence of specific role being attributed to A25-R. Ramesh and A46-Sharath Kumar, we are of the considered view that their conviction cannot be upheld. 45.Then the question arises before us is whether a case has been made out for recording acquittal of A25- R.Ramesh and A46-Sharath Kumar. Following inconsistencies have been noticed by us. 46. PW2, PW5, PW6, PW10 did not identify A25-Ramesh correctly. PW7, PW13 and PW14 did not identify him at all. PW8 identified him but does not assign any role to him. PW1, PW2, PW4, PW9, PW12, PW13, PW14, PW15 assigned him the role of shouting slogans. However PW4, PW12, PW13, PW14, assigned him further role, in addition to shouting slogans. PW3, PW5 and PW11 assigned him some other roles, different from shouting slogans.47. Coming to the case of A46-Sharath Kumar, all have identified him correctly but PW3, PW4, PW5 PW6, PW8, PW10, PW12 and PW14 did not depose about him at all.48. The majority of witnesses assigned him the role of assaulting with clubs. However, PW9, PW13 assigned different role to him but Doctor’s evidence does not disclose anywhere that the injuries sustained by any of the injured persons could have been caused with clubs, meaning thereby there was no mention with regard to cause of injury. Thus, he can also be given benefit of doubt. In view of the aforesaid inconsistencies available on record, it would not be safe to convict him.49. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of. U.P. reported in 2008 (11) SCR 286 has held:­ “The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” 50. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.51. As has already been mentioned hereinabove A6-P.A. Bharathkumar has not preferred any appeal as his whereabouts are not known. Thus, these appeals have no concern with his conviction.52. Normally, it is not in practice to consider each and every individual evidence available; however we had to make an exception in this case since it involved certain alleged odious deeds of few individuals. In order to impart full and substantial justice, we made this exception. Criminal jurisprudence entails that a thorough appreciation of records needs to be done in order to do complete justice.53. It would be apt to mention herein that interlocutory applications were filed by some of the accused in the Trial Court under Sections 91 and 233 of the Cr.P.C. The applications mainly pertained to securing of certain materials, documents and witnesses to establish their defence. At the very outset it is pertinent to mention that in this particular matter there has been an inordinate delay, despite the High Court granting six months for the completion of the trial and thereafter another three months’ extension was sought by the Trial Court. As per Section 233, the Trial Court can refuse securing of defence evidence if it so feels that the same is being done to further delay the trial. The Trial Court had considered the judgment of the High Court of Karnataka in Crl. Rev. Petition No. 677/03, touching almost the identical issue, wherein it was held that the defence evidence has to be led without summoning of any documents and the counsel for the defence has conceded to the said point. Thus, we are of the opinion that Trial Court has committed no error in rejecting the above applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications.54. Only in the light of the aforesaid we have considered the case of each of the accused independently.55. In Criminal Appeal No.1029 of 2008, out of the seven accused appellants, we hereby confirm the conviction and sentence as awarded to them by the Trial Court and confirmed by High Court for the following 5 accused, viz., A1-R.Srinivas, A2-T.K.S. Kutti, A15-N.V.Ravi, A32-Dharanesh, A33-Jagadish, but record acquittal of A25-R. Ramesh and A46- Sharath Kumar. They be released forthwith if not required in any other criminal case.56. For the reasons recorded above, Crl. Appeal No.1 028 of 2008 filed by aforesaid 4 accused namely, A4- C.Magesh, A8 - Edwin Noyal, A16 - S Babu and A34- Nagraj is hereby allowed and they are acquitted. They be set at liberty forthwith, if not required in any other criminal case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]34. We would first like to take up Criminal Appeal No.1028 of 2008 preferred by four of those accused who have been found guilty for commission of offences under Section 302 and other allied sections by the High Court solely on the strength of two dying declarations of Sinija and Nagarathna marked as Exh. P29 and P30.35.offences.36. It is not in dispute that it was their statement recorded under Section 161 of the Cr.P.C. in the hospital by I.O. There was no need at that time to have obtained their signatures on the same as it is prohibited by Section 162 of the Cr.P.C. Doctors have certified that they were in a fit state of health to have their statements recorded only at the end of recording of their statements. No such certificate has been issued by the Doctors at the time their statement had commenced to be recorded. It is not in question answer form.37. The incident having taken place as far back as on 25.3.1999 in a metropolitan city like Bangalore, where several magistrates were available, prosecution never thought of getting their dying declarations recorded in presence of a magistrate. There is nothing on record even to suggest that from 25.3.1999 to 11.4.1999 when Sinija finally succumbed to the injuries and between 25.3.1999 to 22.4.1999 when Nagarathna succumbed to the injuries magistrate was not available. Even if prosecution would have put forth such a ground it had only to be discarded at the threshold as the same is inconceivable.38. We have also not appreciated the manner in which the High Court in a cryptic manner, without properly discussing the legal and factual aspect of the matter held the aforesaid 4 accused guilty for commission of the said offence in addition to the conviction of seven accused who had already been found guilty by Trial Court. After all, it was an appeal by the State against order of acquittal recorded by Trial Court.39. In an appeal preferred under Section 378 of the CrPC, no doubt, it is true that High Court has ample powers to go through the entire evidence and to arrive at its own conclusion but before reversing the finding of acquittal, following conditions should be always kept in mind namely,(i) the presumption of innocence of the accused should be kept in mind;(ii) if two views of the matter are possible view favourable to the accused should be taken; (iii) the Appellate Court should take into account the fact that the trial judge had the advantage of looking at the demeanor of witness; and(iv) the accused is entitled to benefit of doubt. But the doubt should be reasonable that is the doubt which rational thinking man with reasonable honesty and consciously entertained, more so, when the larger question with regard to treating Exh. P29 and Exh. P30 as dying declarations itself had become questionable.40. There was no occasion for the High Court to have passed order of conviction on the same, that too without removing the doubts with regard to correctness, legality and propriety of two dying declarations.41. Thus, in our considered opinion. Criminal Appeal No.1028 of 2008 filed by aforesaid four accused, convicted by High Court for the first time deserves to be allowed and is allowed. They be set at liberty if not required in any other case.42. Now, coming to the appeal of remaining 7 accused i.e. Criminal Appeal No.1029 of 2008, we have critically gone through the evidence of PW1 to PW 15, remaining passengers of the ill-fated bus on the unfortunate date, having sustained burn injuries on account of overt acts of the accused as mentioned hereinabove.43. After having gone through the entire evidence critically, we have absolutely no doubt in our mind that there has been a great consistency In the evidence of PW 1 to PW15 with regard to different roles attributed to AIR. Srinivas, he has been identified by the witnesses as one of the instigators who started shouting slogans against management of the Company and loyal workers, moreover PW- 12 & 14 have attributedon A-1 R.Srinivas A2-TKS. Kutti, was also attributed more or less the same role as that of A1- R Srinivas by the PWs. A15-N.V. Ravi, was correctly identified by all the witnesses, who have deposed about him. He has been attributed role ofkerosene on theexcept PW 4 & 14 did not depose about the same role played by him. He has further been attributed with theng remaining occupants from alighting from theA32-Dharanesh has been assigned with similar role as that of A-15 with the only difference that PW2 & 11 could not identify him correctly. He has been attributed the role ofg the exit of theng ofA33-Jagadish has been correctly identified by all the PWs, in deposition before Court. Further majority of the witnesses have assigned him the role ofand PW-15 also mentions thatset the bus onIn addition to this A-33 has been assigned the role ofng theexit of theas well. Thus, there cannot be any escape for the aforesaid 5 accused from avoiding conviction and sentence awarded to them by Trial Court and confirmed in appeal by High Court. Even otherwise, there are concurrent findings of fact recorded against them, which cannot be interfered with in this appeal.44. However, on account of inconsistency, improper identification and in absence of specific role being attributed to A25-R. Ramesh and A46-Sharath Kumar, we are of the considered view that their conviction cannot be upheld.PW2, PW5, PW6, PW10 did not identify A25-Ramesh correctly. PW7, PW13 and PW14 did not identify him at all. PW8 identified him but does not assign any role to him. PW1, PW2, PW4, PW9, PW12, PW13, PW14, PW15 assigned him the role of shouting slogans. However PW4, PW12, PW13, PW14, assigned him further role, in addition to shouting slogans. PW3, PW5 and PW11 assigned him some other roles, different from shouting slogans.47. Coming to the case of A46-Sharath Kumar, all have identified him correctly but PW3, PW4, PW5 PW6, PW8, PW10, PW12 and PW14 did not depose about him at all.48. The majority of witnesses assigned him the role of assaulting with clubs. However, PW9, PW13 assigned different role to him butevidence does not disclose anywhere that the injuries sustained by any of the injured persons could have been caused with clubs,y there was no mention with regard to cause of injury. Thus, he can also be given benefit of doubt. In view of the aforesaid inconsistencies available on record, it would not be safe to convict him.49. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword forthe conviction ofan accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of. U.P. reported in 2008 (11) SCR 286 hasevidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle thatman is guilty until provenhence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and therebytest of consistency in evidence amongst all the witnesses.51. As has already been mentioned hereinabove A6-P.A. Bharathkumar has not preferred any appeal as his whereabouts are not known. Thus, these appeals have no concern with his conviction.52. Normally, it is not in practice to consider each and every individual evidence available; however we had to make an exception in this case since it involved certain alleged odious deeds of few individuals. In order to impart full and substantial justice, we made this exception. Criminal jurisprudence entails that a thorough appreciation of records needs to be done in order to do complete justice.53. It would be apt to mention herein that interlocutory applications were filed by some of the accused in the Trial Court under Sections 91 and 233 of the Cr.P.C. The applications mainly pertained toin materials, documents and witnesses to establish their defence. At the very outset it is pertinent to mention that in this particular matter there has been an inordinate delay, despite the High Court granting six months for the completion of the trial and thereafter another threeextension was sought by the Trial Court. As per Section 233, the Trial Court can refusece evidence if it so feels that the same is being done to further delay the trial. The Trial Court had considered the judgment of the High Court of Karnataka in Crl. Rev. Petition No. 677/03, touching almost the identical issue, wherein it was held that the defence evidence has to be led withoutny documents and the counsel for the defence has conceded to the said point. Thus, we are of the opinion that Trial Court has committed no error inve applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications.54. Only in the light of the aforesaid we have considered the case of each of the accused independently.55. In Criminal Appeal No.1029 of 2008, out of the seven accused appellants, we hereby confirm the conviction and sentence as awarded to them by the Trial Court and confirmed by High Court for the following 5 accused, viz., A1-R.Srinivas, A2-T.K.S. Kutti, A15-N.V.Ravi, A32-Dharanesh, A33-Jagadish, but record acquittal of A25-R. Ramesh and A46- Sharath Kumar. They be released forthwith if not required in any other criminal case.56. For the reasons recorded above, Crl. Appeal No.1 028 of 2008 filed by aforesaid 4 accused namely, A4- C.Magesh, A8 - Edwin Noyal, A16 - S Babu and A34- Nagraj is hereby allowed and they are acquitted. They be set at liberty forthwith, if not required in any other criminal case.