Case: C.Magesh  Vs. State Of Karnataka

2. Before coming to the prosecution story, it is necessary to give background facts of the case so as to appreciate as to how charter of demands, of workers of Trade Union had taken an ugly shape causing death of two employees and injuries to several others.3. BPL has eight units spread over different parts of Bangalore city, carrying on its business activities. It appears, looking to the nature of activities that are carried on by BPL, large numbers of workers, mostly women, were engaged on temporary basis. They were apparently not satisfied working on temporary basis for long number of years. Employees of all the units of BPL Engineering Ltd. formed a common trade union. Thereafter, they applied for registration of the Union. Management of BPL opposed the registration. The, Union was still registered and management filed an appeal against the said order of registration with the Assistant Labour Commissioner, in which show cause notice was issued to the Union. However, on challenge being raised by the Union to the said show cause notice by filing a petition, purportedly under Articles 226 and 227 of the Constitution of India, High Court of Karnataka, Bangalore, was pleased to quash the said show cause notice. Thus, the registered Union of BPL and its employees affiliated to CITU came into existence.4. The registered Trade Union, thus, as was expected, placed charter of demands before the management for regularization of all temporary employees who had been working for long number of years. As the prayer of the Union was not acceded to by the BPL management, the members of the Union held Dharnas, protests and meetings, outside factory premises at different units of BPL. It is on record that A 1 R. Srinivas and A2 T.K.S. Kutti were the President and Secretary respectively of the said Union and A3 to A47 and other accused were said to be active members of the said Union. According to prosecution, they had been actively participating in the activities of the Union, making demands, which the BPL management did not accede to.5. Since the initial demands made by members of the Union were not acceded to and did not bring required results for the Union, they adopted hostile tactics in their activities.6. On 19.11.1998, there was serious protest demonstration by the leaders, office bearers and other active members of Union, persuading employees not to attend to the work atBasavapura Unit. This led to lodging of complaint/FIR by Lalitha, an employee of BPL with Hebbagodi Police Station, bringing aforesaid facts to the notice of police. Consequently, a charge sheet was filed against accused A6, A 15, A33 and A36, on the complaint filed by Lalitha. There were as many as three lady accused also named in the said complaint.7. However, some of the employees who were loyal to the management continued to attend work.8. Sensing the gravity of the situation, BPL management thought it fit and proper to take help of police so as to provide sufficient protection to its loyal employees and to escort them to and from their respective residences to different units of BPL. On the basis of the complaint having been lodged by Lalitha, BPL management also lodged a complaint against A6, A15, A33 and A36 and A47.9. Protest demonstration by the members of Union of BPL either within the premises or outside different units continued. Since despite doing their best, BPL was not able to control and manage hostile attitude of the Union, it was constrained to file Civil Suits on 30.11.1998 and 2.12.1998 against the striking Trade Union members with a prayer that the members be not allowed to hold any demonstration within the factory premises or units. An order of injunction was passed against the members of the BPL Group of Companies Karmikara Sangha (hereinafter shall be referred to asnot to hold any demonstration within a radius of 100 meters from the factory premises.10. Even thereafter, protest demonstration and the strike continued for about a week. Some of the employees went on hunger strike.11. BPL management also initiated disciplinary proceedings againstBharathkumar, A 15-N.V. Ravi @ Ravinanda Kumar and A33-S. Jagadish, for their alleged acts of misconduct in one of its units. Since on account of police protection having been provided to the loyal workers of the BPL, its business activities continued, which were not palatable to the accused. They were, therefore, hatching a plan to somehow or the other create terrorism and civil disobedience amongst the loyal workers so that they may be afraid of attending to their work. The chronological events put herein under would show as to how the prosecution story commenced.12. However, this fight between Trade Union and the management took an ugly turn on 25.3.1999, when a private chartered bus carrying some of the employees of BPL, was stopped at Annepalya so as to allow the workers to alight. At that time, A 1 to 49 formed an unlawful assembly. A 1 and A2 were shouting slogans in favour of the Union and against the loyal employees of the factory. A6 and A47 and others pelted stones with the result glass panes of the bus were broken. A46 stood at the only gate available at front part of the bus along with others to prevent the workers from getting down. A 15 and A33 were supplied kerosene in two cans by A32, which was sprinkled not only on the remaining passengers of the bus but also on rear left side of the bus. The bus was then put on fire by A33. This incident took place at about 6.40 p.m. In the said inferno, several passengers of the bus sustained burn injuries and the rear left side of the bus was also badly damaged by fire.13. C.W.98 Suresh Naidu, Circle Inspector of Police Ashoknagara Police Station (hereinafter shall be referred to asreceived telephonic message in respect of the aforesaid incident at about 6.45 p.m. Taking clue from the said message, I.O. immediately proceeded to the spot and found bus bearing registration No. TN 28B 6999 still under flames and fire fighting staff was extinguishing fire. The passengers in the said bus who had sustained burn injuries were initially taken to the house of C. W.42 Smt. Renuka thereafter were admitted in a Hospital in Patrolling Van popularly called as Hoysala Van, named after one of the Rulers of the State. CW1 N. Ashwathappa, after being given first aid treatment in Bowring Hospital, lodged written complaint Exh. P81. Crime No. 273/1999 was registered. Subsequently, the concerned judicial magistrate was also informed at about 11.45 p.m. Thereafter, photographs of the ill-fated bus from outside were taken. I.O. seized kerosene can, stones, clubs, half burnt vanity bags, chappals, rubber sheet, covers, glass pieces and one can with kerosene oil. CW.98, I.O. prepared a spot Mahazar Ex.P1.14. Thereafter, I.O., C.W. 98 went to Victoria Hospital at about 10.45 p.m. and found some of the workers with severe burn injuries. He recorded statement of one Devaki. He also recorded statement of other prosecution witnesses. Thereafter, on the same night, he went to DG Hospital and recorded statement of Latha Maheshwari. On instructions from senior police officer, some of the accused were arrested.15. On 2.4.1999, he recorded statement of Sinija, an injured passenger of the bus, in the presence of doctor which was marked as Exh. P.29. Sinija succumbed to burn injuries on 11.4.1999. Her dead body was sent for postmortem examination. Similarly, on 20.4.1999 he recorded statement (Exh. P30) of Smt. Nagarathna another injured passenger of the bus in presence of the doctor but she also succumbed to burn injuries on 22.4.1999. Thus, the case, initially registered under Section 307 was converted into one under Section 302 of the Indian Penal Code (IPC) along with other allied sections. On 19.6.1999 I.O. sealed all the articles pertaining to this case and forwarded it to the Forensic Science Laboratory for analysis through Head Constable 660.16. After completion of usual investigation, he submitted charge sheet against 49 accused. They were charged and prosecuted for commission of offences punishable under Sections 120B, 302, 307, 324, 326, 332, 148,435, 427,147,148,143,506 read with Section 149 of the IPC.17. The prosecution, in order to bring home the charges levelled against accused examined PW1 to PW56, marked documents P1 to P121 as exhibits and M.Os 1 to 41 in support of the prosecution version. The statement of the accused as contemplated under Section 313 Cr.P.C. was recorded. Accused also examined themselves as DW 1 to 31 and got marked Exh. D1 to D328 in support of their defence.18. Learned Trial Judge, on appreciation of evidence available on record, convicted in all only 7 accused i.e. A1-R.Srinivas, A2- T.K.S. Kutti, A15-N.V. Ravi @ Ravinanda Kumar, A25-R. Ramesh, A32-Dharanesh Kumar,A33-S.Jagadish and A46-Sharath Kumarfor commission of offences punishable under Section 302, 307, 435, 427,143 and 148 read with 149 of the IPC awarding them maximum punishment of life imprisonment under Section 302 and ancillary sentences and corresponding fines in each case for other offences with a direction that sentences will run concurrently. All other accused were acquitted by the Trial Court. 19. Against the judgment of the Trial Court, Crl. A. No. 1624 of 2003 was filed by the aforesaid 7 convicted accused. On the other hand, Criminal Appeal No. 188 of 2004 was filed by State of Karnataka against aforesaid seven convicted accused for enhancement of sentences of life imprisonment to death sentence and Criminal appeal No. 189 of 2004 was also filed by the State of Karnataka, against that part of judgment and order of Trial Court whereby out of 49, 42 accused were acquitted.20. All the appeals before the High Court were heard analogously and disposed of by a common judgment. These appeals have been preferred firstly by the seven accused convicted by the Trial Court and secondly by four other accused, viz., A4-C. Magesh, A8-Edwin Noyal, A16-S.Babu and A34-Nagaraj additionally found guilty and convicted for the same offence by the High Court. The fifth accused, viz., A6-P.A. Bharathkumar convicted by the High ,Court has not preferred any appeal, thus in this judgment/order, we are not dealing with his case. No further Appeal has been preferred by the State as well.

Reasoning:
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.