C.Magesh & Ors vs State Of Karnataka

3. BPL has eight units spread over different parts of Bangalore city, carrying on its business activities. Crl.A. Nos. 1028-1029 of 2008 .... (contd.) 2 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.

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 at BPL's Basavapura 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, A15, 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 Crl.A. Nos. 1028-1029 of 2008 .... (contd.) 4 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 as `Sangha') not to hold any demonstration within a radius of 100 meters from the factory premises.

11. BPL management also initiated disciplinary proceedings against A6-P.A. Bharathkumar, A15-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, A1 to 49 formed an unlawful assembly. A1 and A2 were shouting Crl.A. Nos. 1028-1029 of 2008 .... (contd.) 5 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. A15 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.

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.

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 Kumar for 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 u/s 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.

(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 Crl.A. Nos. 1028-1029 of 2008 .... (contd.) 16 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.

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.

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.

Crl.A. Nos. 1028-1029 of 2008 .... (contd.) 18

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.

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.

Crl.A. Nos. 1028-1029 of 2008 .... (contd.) 20

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 Crl.A. Nos. 1028-1029 of 2008 .... (contd.) 21 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. 1028 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.

57. Thus, the appeals stand allowed to the aforesaid extent only as per the reasons recorded above. Judgments and orders of the Trial Court and High Court stand modified accordingly.

April 30, 2010