{"id":22394,"date":"2010-04-30T00:00:00","date_gmt":"2010-04-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-magesh-ors-vs-state-of-karnataka-on-30-april-2010"},"modified":"2018-07-02T01:05:19","modified_gmt":"2018-07-01T19:35:19","slug":"c-magesh-ors-vs-state-of-karnataka-on-30-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-magesh-ors-vs-state-of-karnataka-on-30-april-2010","title":{"rendered":"C.Magesh & Ors vs State Of Karnataka on 30 April, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
C.Magesh & Ors vs State Of Karnataka on 30 April, 2010<\/div>\n
Author: ………………….J.<\/div>\n
Bench: V.S. Sirpurkar, Deepak Verma<\/div>\n
                                                                        REPORTABLE\n\n                  IN THE SUPREME COURT OF INDIA\n\n              CRIMINAL APPELLATE JURISDICTION\n\n          CRIMINAL APPEAL NOS.1028-1029 OF 2008\n\n C. Magesh        & Ors. etc.                             ....Appellants\n\n                              Versus\n\n State of Karnataka                                       ...Respondent\n\n\n                               J U D G M E N T\n<\/pre>\n
Deepak Verma, J.\n<\/p>\n
1.   Narration of facts of the aforesaid criminal appeals
\n     arising out of common judgment and order passed by
\n     High     court      of        Karnataka,       Bangalore,          in     three
\n     criminal        appeals,        one        preferred         by    convicted
\n     accused,       other     two     by    State    of   Karnataka,           would
\n     reveal shocking and sad plight as to how a labour
\n     dispute can turn hostile culminating                          into a civil
\n     disobedience,          thus,        snatching    away      lives        of    two
\n     young women and injuring several others all working
\n     in     BPL     Engineering          Ltd.    (hereinafter           shall      be
\n     referred to as `BPL’)\n<\/p>\n
2.   Before       coming      to    the     prosecution        story,         it   is
\n     necessary to give background facts of the case so as
\n     to   appreciate        as      to    how   charter      of    demands,         of
\n     workers       of   Trade       Union    had     taken    an       ugly    shape
\n     causing       death      of    two     employees     and      injuries        to
\n     several others.\n<\/p>\n
3.   BPL has eight units spread over different parts of
\n     Bangalore city, carrying on its business activities.
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                     2<\/span>
\n               It appears, looking to the nature of activities that
\n               are carried on by BPL, large numbers of workers,
\n               mostly women, were engaged on temporary basis. They
\n               were apparently not satisfied working on temporary
\n               basis for long number of years. Employees of all the
\n               units of BPL Engineering Ltd. formed a common trade
\n               union.         Thereafter, they applied for registration of
\n               the       Union.               Management       of       BPL     opposed     the
\n               registration.                  The Union was still registered and
\n               management filed an appeal against the said order of
\n               registration with the Assistant Labour Commissioner,
\n               in which show cause notice was issued to the Union.
\n               However, on challenge being raised by the Union to
\n               the said show cause notice by filing a petition,
\n               purportedly            under         Articles      226    and    227    of   the
\n               Constitution             of     India,      High     Court      of    Karnataka,
\n               Bangalore, was pleased to quash the said show cause
\n               notice.          Thus, the registered Union of BPL                      and its
\n               employees affiliated to CITU came into existence.\n<\/p>\n
      4.       The registered Trade Union, thus, as was expected,
\n               placed charter of demands before the management for
\n               regularization of all temporary employees who had
\n               been working for long number of years. As the prayer
\n               of     the       Union         was    not    acceded      to     by    the   BPL
\n               management, the members of the Union held Dharnas,
\n               protests and meetings, outside factory premises at
\n               different units of BPL.                     It is on record that A1 R.
\n               Srinivas and A2 T.K.S. Kutti were the President and
\n               Secretary respectively of the said Union and A3 to
\n               A47 and other accused were said to be active members
\n               of the said Union. According to prosecution, they
\n               had been actively participating in the activities of
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                      3<\/span>
\n               the Union, making demands, which the BPL management
\n               did not accede to.\n<\/p>\n
      5.       Since the initial demands made by members of the
\n               Union        were       not         acceded       to,    and       did       not     bring
\n               required results for the Union, they adopted hostile
\n               tactics in their activities.\n<\/p>\n
      6.       On        19.11.1998,                there         was         serious             protest
\n               demonstration             by        the    leaders,          office      bearers      and
\n               other active members of Union, persuading employees
\n               not to attend to the work at BPL’s Basavapura Unit.
\n               This led to lodging of complaint\/FIR by Lalitha, an
\n               employee          of     BPL         with     Hebbagodi            Police      Station,
\n               bringing aforesaid facts to the notice of police.
\n               Consequently,              a        charge    sheet          was     filed         against
\n               accused A6, A15, A33 and A36, on the complaint filed
\n               by     Lalitha.                There       were    as    many       as       three   lady
\n               accused also named in the said complaint.\n<\/p>\n
      7.       However, some of the employees who were loyal to the
\n               management continued to attend work.\n<\/p>\n
      8.       Sensing the gravity of the situation, BPL management
\n               thought it fit and proper to take help of police so
\n               as to provide sufficient protection to its loyal
\n               employees          and         to    escort       them       to    and       from    their
\n               respective residences to different units of BPL.                                       On
\n               the basis of the complaint having been lodged by
\n               Lalitha,          BPL     management              also       lodged      a    complaint
\n               against A6, A15, A33 and A36 and A47.\n<\/p>\n
      9.       Protest demonstration by the members of Union of BPL
\n               either         within          the     premises         or    outside         different
\n               units continued.                     Since despite doing their best,
\n               BPL      was     not      able        to    control          and    manage         hostile
\n               attitude of the Union, it was constrained to file
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                      4<\/span>
\n               Civil Suits on 30.11.1998 and 2.12.1998 against the
\n               striking Trade Union members with a prayer that the
\n               members be not allowed to hold any demonstration
\n               within         the factory premises or units.                        An order of
\n               injunction was passed against the members of the BPL
\n               Group         of    Companies           Karmikara       Sangha      (hereinafter
\n               shall be referred to as `Sangha’) not to hold any
\n               demonstration within a radius of 100 meters from the
\n               factory premises.\n<\/p>\n
      10.      Even       thereafter,             protest         demonstration           and    the
\n               strike         continued          for      about    a   week.       Some    of    the
\n               employees went on hunger strike.\n<\/p>\n
      11.      BPL         management                also     initiated            disciplinary
\n               proceedings against A6-P.A. Bharathkumar, A15-N.V.
\n               Ravi      @    Ravinanda          Kumar       and    A33-S.      Jagadish,        for
\n               their         alleged          acts    of    misconduct        in    one    of    its
\n               units.         Since on account of police protection having
\n               been provided to the loyal workers of the BPL, its
\n               business           activities              continued,     which         were      not
\n               palatable to the accused.                           They were, therefore,
\n               hatching           a   plan      to     somehow      or   the       other    create
\n               terrorism and civil disobedience amongst the loyal
\n               workers so that they may be afraid of attending to
\n               their work.                The chronological events put herein
\n               under would show as to how the prosecution story
\n               commenced.\n<\/p>\n
      12.      However,           this        fight    between      Trade      Union       and   the
\n               management took an ugly turn on 25.3.1999, when a
\n               private chartered bus carrying some of the employees
\n               of BPL,            was stopped              at Annepalya so as to allow
\n               the workers to alight. At that time, A1 to 49 formed
\n               an     unlawful         assembly.             A1    and   A2     were      shouting
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                    5<\/span>
\n               slogans in favour of the Union and against the loyal
\n               employees of the factory.                             A6 and A47 and others
\n               pelted stones with the result glass panes of the bus
\n               were broken.              A46 stood at the only gate available
\n               at     front       part        of   the       bus     along      with       others      to
\n               prevent the workers from getting down. A15 and A33
\n               were supplied kerosene in two cans by A32, which was
\n               sprinkled not only on the remaining passengers of
\n               the bus but also on rear left side of the bus.                                         The
\n               bus was then put on fire by A33. This incident took
\n               place       at      about       6.40       p.m.      In    the       said    inferno,
\n               several           passengers            of     the       bus     sustained             burn
\n               injuries and the rear left side of the bus was also
\n               badly damaged by fire.\n<\/p>\n
      13.      C.W.98        Suresh           Naidu,      Circle        Inspector          of    Police
\n               Ashoknagara            Police        Station         (hereinafter           shall       be
\n               referred to as ‘I.O.’) received                             telephonic message
\n               in respect of the aforesaid incident at about 6.45
\n               p.m.       Taking         clue       from       the       said       message,          I.O.
\n               immediately            proceeded          to       the    spot       and    found      bus
\n               bearing registration No. TN 28B 6999 still under
\n               flames        and     fire       fighting          staff       was    extinguishing
\n               fire.          The      passengers            in    the    said       bus        who   had
\n               sustained burn injuries were initially taken to the
\n               house        of     C.W.42          Smt.       Renuka            thereafter            were
\n               admitted in a Hospital in Patrolling Van popularly
\n               called as Hoysala Van, named after one of the Rulers
\n               of the State.              CW1 N. Ashwathappa, after being given
\n               first       aid      treatment           in    Bowring         Hospital,          lodged
\n               written complaint Exh. P81. Crime No. 273\/1999 was
\n               registered.               Subsequently,             the    concerned         judicial
\n               magistrate was also informed at about 11.45 p.m.
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                      6<\/span>
\n               Thereafter,                          photographs of the ill-fated bus
\n               from outside were taken. I.O. seized kerosene can,
\n               stones,         clubs,          half    burnt     vanity     bags,    chappals,
\n               rubber sheet, covers, glass pieces and one can with
\n               kerosene oil.                  CW.98, I.O. prepared a spot Mahazar
\n               Ex.P1.\n<\/p>\n
      14.      Thereafter, I.O., C.W. 98 went to Victoria Hospital
\n               at about 10.45 p.m. and found some of the workers
\n               with severe burn injuries.                       He recorded statement of
\n               one      Devaki.        He      also        recorded   statement      of    other
\n               prosecution            witnesses.               Thereafter,    on     the   same
\n               night, he went to DG Hospital and recorded statement
\n               of Latha Maheshwari.                        On instructions from senior
\n               police officer, some of the accused were arrested.\n<\/p>\n
      15.      On 2.4.1999, he recorded statement of Sinija, an
\n               injured passenger of the bus, in the presence of
\n               doctor         which       was         marked     as   Exh.    P.29.       Sinija
\n               succumbed to burn injuries on 11.4.1999. Her dead
\n               body was sent for postmortem examination. Similarly,
\n               on 20.4.1999 he recorded statement (Exh. P30) of
\n               Smt. Nagarathna another injured passenger of the bus
\n               in presence of the doctor but she also succumbed to
\n               burn       injuries            on      22.4.1999.          Thus,     the    case,
\n               initially registered under Section 307 was converted
\n               into one under Section 302 of the Indian Penal Code
\n               (IPC)        along        with         other     allied      sections.        On
\n               19.6.1999 I.O. sealed all the articles pertaining to
\n               this case and forwarded it to the Forensic Science
\n               Laboratory for analysis through Head Constable 660.\n<\/p>\n
      16.      After         completion               of     usual    investigation,         he
\n               submitted charge sheet against 49 accused.                                  They
\n               were       charged             and     prosecuted      for    commission      of
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                      7<\/span>
\n               offences punishable under Sections 120B, 302, 307,
\n               324, 326, 332, 148, 435, 427, 147, 148, 143, 506
\n               read with Section 149 of the IPC.\n<\/p>\n
      17.      The prosecution, in order to bring home the charges
\n               levelled          against         accused          examined    PW1     to     PW56,
\n               marked documents P1 to P121 as exhibits and M.Os 1
\n               to 41 in support of the prosecution version.                                    The
\n               statement           of      the       accused       as    contemplated        under
\n               Section 313 Cr.P.C. was recorded.                                Accused also
\n               examined themselves as DW 1 to 31 and got marked
\n               Exh. D1 to D328 in support of their defence.\n<\/p>\n
      18.      Learned          trial         judge,      on    appreciation     of    evidence
\n               available on record, convicted in all only 7 accused
\n               i.e. A1-R.Srinivas, A2- T.K.S. Kutti, A15-N.V. Ravi
\n               @     Ravinanda           Kumar,        A25-R.       Ramesh,     A32-Dharanesh
\n               Kumar,        A33-S.Jagadish               and      A46-Sharath        Kumar    for
\n               commission           of        offences         punishable      under       Section
\n               302, 307, 435, 427, 143 and 148 read with 149 of the
\n               IPC       awarding             them     maximum          punishment     of     life
\n               imprisonment             u\/s      302      and    ancillary     sentences       and
\n               corresponding fines in each case for other offences
\n               with         a      direction              that      sentences        will      run
\n               concurrently.                  All other accused were acquitted by
\n               the trial court.\n<\/p>\n
      19.      Against the judgment of the trial court, Crl. A. No.
\n               1624 of 2003 was filed by the aforesaid 7 convicted
\n               accused. On the other hand, Criminal Appeal No. 188
\n               of     2004      was      filed       by    State    of     Karnataka       against
\n               aforesaid seven convicted accused for enhancement of
\n               sentences of life imprisonment to death sentence and
\n               Criminal appeal No. 189 of 2004 was also filed by
\n               the      State         of       Karnataka,         against     that     part     of
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                     8<\/span>
\n               judgment and order of trial court whereby out of 49,
\n               42 accused were acquitted.\n<\/p>\n
      20.      All the appeals before the High Court were heard
\n               analogously and disposed of by a common judgment.
\n               These appeals have been preferred firstly by the
\n               seven       accused            convicted      by    the   trial     court   and
\n               secondly by four other accused, viz., A4-C. Magesh,
\n               A8-Edwin             Noyal,           A16-S.Babu          and      A34-Nagaraj
\n               additionally found guilty and convicted for the same
\n               offence by the High Court.                       The fifth accused, viz.,
\n               A6-P.A. Bharathkumar convicted by the High Court has
\n               not        preferred                any    appeal,        thus      in      this
\n               judgment\/order, we are not dealing with his case. No
\n               further Appeal has been preferred by the State as
\n               well.\n<\/p>\n
      21.      We     have      heard         learned     senior     counsel      Mr.    Sushil
\n               Kumar with Mr. Aditya, and Mr.V.K. Biju, advocates
\n               for the appellants and Ms. Anitha Shenoy and Ms.
\n               Rashmi Nandakumar, Advocates for the respondent at
\n               length and perused the records.\n<\/p>\n
      22.      At      the      outset,            learned    counsel       for    appellants
\n               strenuously contended before us that the whole story
\n               of the prosecution has been concocted and has been
\n               engineered only with an intention to take revenge
\n               from the accused, who were instrumental in causing
\n               strike and dharnas in BPL.                          It has been contended
\n               that       all      the        so     called       injured      persons    whose
\n               statement was recorded by the police had stated in
\n               one       voice       that          the   fire      was   caused     by     some
\n               miscreants and at the first instance names of the
\n               appellants were not mentioned by them.                             It was only
\n               after typed written report Exh. P 81 was submitted
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                      9<\/span>
\n               to the police, names were disclosed for the first
\n               time meaning thereby that the same was concocted and
\n               prepared after meeting of minds as to who should be
\n               roped in as accused.\n<\/p>\n
      23.      It      was      also          contended         that        in    any        case,       the
\n               statements           of        Kumari      Sinija        and       Mrs.       Nagarathna
\n               Exh.P29          and       P30       cannot         be       treated          as      dying
\n               declarations              as     the       same     were          not    recorded         in
\n               accordance with rules formulated in Karnataka Police
\n               Regulations.                   The    incident         had        admittedly          taken
\n               place       on      25.3.1999          but       the     statement            of    Kumari
\n               Sinija        was     recorded          on    2.4.1999            and    she       died    on
\n               11.4.1999.             Similarly, statement of Smt. Nagarathna
\n               was      recorded          on        20.4.1999          and       she     expired          on
\n               22.4.1999.            Prosecution has failed to satisfy as to
\n               why for all these days, the statement could not be
\n               recorded by the Magistrate.                             Several other lacunae
\n               have been pointed out to us to show that the same
\n               cannot be treated as dying declarations as they do
\n               not fulfill the requirement of law.                                      It was also
\n               contended that no signatures                                 are required to be
\n               obtained on a statement recorded under Section 161
\n               of     the      Cr.P.C.          yet       the     same      were        signed       which
\n               clearly violates mandate of Section 162 of CrPC.\n<\/p>\n
      24.      The photographs of the accused were already shown to
\n               the witnesses who had admitted the same. Therefore,
\n               their         identification                 did       not        have     any        legal
\n               sanctity.            Evidence of the prosecution is required
\n               to     be      considered            in      whole        so      as     to     see       its
\n               credibility but it is not permissible in law to say
\n               that for few of the accused, it would be looked into
\n               from one angle and for others it would be looked
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                      10<\/span>
\n               into from different angle.                          Names of the persons on
\n               the spot or their identity were not reflected. In
\n               other words, it was contended that the very genesis
\n               of     the     commission             of     the    crime,      FIR      having     been
\n               denied by the person lodging it. i.e., lodger PW 42
\n               A.S. Aswathappa, nothing had in fact survived in the
\n               prosecution case and accused deserved acquittal on
\n               this ground alone.\n<\/p>\n
      25.      It     was      further          contended          by     Mr.       Sushil     Kumar,
\n               learned senior counsel that case could not have been
\n               proceeded          against            any    of    the     accused        as   he    was
\n               declared hostile and in any case, FIR not being a
\n               substantive piece of evidence and in absence of any
\n               other legally admissible evidence, they could not
\n               have       been       framed.          Defence       has      not     disputed      the
\n               incident but what has been seriously contended was
\n               the     identity           of    the        accused,      a    burden      which    lay
\n               heavily          on        the       prosecution          but       it    failed     to
\n               discharge it satisfactorily.                           In all the statements
\n               recorded         earlier,            names     of    none       of    accused       were
\n               revealed.             It was only after typed written report
\n               was submitted by Ashwathappa, the names appeared.\n<\/p>\n
      26.      It is settled law on the point that FIR is not a
\n               substantive piece of evidence. However the FIR can
\n               not be given a complete go-by since it can be used
\n               to corroborate the evidence of the person lodging
\n               the      same.        In       the    judgment       of       this    Court     titled
\n               Baldev Singh vs. State of Punjab reported in (1990)
\n               4     SCC      692,        it        was    held     that       as       far   as   the
\n               evidentiary value of the FIR is concerned it can
\n               only be used to for corroboration of its maker, but
\n               the FIR can not be used as substantial evidence or
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                     11<\/span>
\n               corroborating a statement of third party.\n<\/p>\n
      27.      On careful examination of the deposition of PW-42,
\n               Ashwathappa, it is found that even though he had
\n               denied lodging of complaint with the police, but on
\n               examination of deposition of PW-56, Suresh Naidu,
\n               CPI Ashoknagar P.S., it is found that he has stated
\n               that      PW-42,        Ashwathappa,             had    come   to    the      police
\n               station along with a typed complaint, which was then
\n               registered and FIR was lodged. Subsequently it was
\n               sent        to       the        court       of     XI     Additional           Chief
\n               Metropolitan Magistrate, Bangalore. Thus it is not
\n               possible on account of the above said discrepancies
\n               in the evidence to ascertain the origin of the typed
\n               complaint. Thereby we can not totally negate the
\n               possibility of the complaint being dictated by the
\n               company officials. Moreover there is no secondary
\n               evidence led to ascertain the veracity of the FIR.
\n               Under such circumstances it would not be correct for
\n               us to wholly place our reliance on the same.\n<\/p>\n
      28.      Learned counsel for the appellants then contended,
\n               if FIR and dying declarations are discarded, then
\n               nothing would survive to hold the appellants guilty
\n               for     commission             of   serious       offence.          It   was    also
\n               submitted that under Section 380 of the CrPC,                                  Court
\n               has every power and                     jurisdiction to examine,                re-
\n               appreciate             and evaluate the evidence available on
\n               record and then only to record either finding of
\n               guilt or acquittal.\n<\/p>\n
      29.      It     was     also       brought          to    our    notice   that      in   the
\n               application for remand filed on 9.4.1999, no mention
\n               had     been      made         with   regard       to    recording       of    dying
\n               declaration of Kumari Sinija. Correctness                                and legal
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                 12<\/span>
\n               sanctity          of      the    said    dying        declarations             are
\n               challenged           on    the   grounds       that    they      were    not    in
\n               question-answer form and endorsement made by doctors
\n               at the end of the statements that they were mentally
\n               fit is not the requirement of law for proving the
\n               dying declarations.\n<\/p>\n
      30.      On the other hand, learned counsel for respondent
\n               M\/s Anitha Shenoy and Rashmi Nandakumar strenuously
\n               contended that trial court had properly appreciated
\n               the      evidence         available      on    record       and    thereafter
\n               only, convicted seven accused. In appeal in the High
\n               Court,         five       more    have     been        found      guilty       for
\n               commission of offences mainly on the basis of dying
\n               declarations of Kumari Sinija, and Mrs. Nagarathna,
\n               who      had      categorically         named     these       five      accused,
\n               ultimately             having     succumbed           to    burn        injuries
\n               sustained by them.                Thus, their statements recorded
\n               under Section 161 CrPC, after their death would be
\n               treated as dying declarations and the High Court
\n               committed no error of law in doing so.\n<\/p>\n
      31.      It was contended that all the accused were already
\n               known to the witnesses and they had been working
\n               either in the BPL or used to participate in protest
\n               of        their           demands.       Thus,         holding        of       any
\n               identification parade in the facts and circumstances
\n               of the case was not required.                          They have further
\n               denied that photographs were already shown to them
\n               before they were identified in the dock in court.
\n               It      was       further        submitted        by       her     that       mere
\n               declaration of the lodger of the FIR hostile, will
\n               not completely wash out the prosecution case, as it
\n               would       still       depend    on     the    oral       evidence      of    the
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                     13<\/span>
\n               witnesses            coupled         with        the    Exhibits        and        M.Os
\n               (Material            Objects).             Similarly,        even       if     dying
\n               declarations are not taken into consideration, there
\n               is still sufficient material on record to show that
\n               even those five who have additionally been found
\n               guilty         for     commission           of     offences        as   mentioned
\n               hereinabove by the High Court, cannot be acquitted.\n<\/p>\n
      32.      It has also been submitted that it is neither the
\n               requirement            of      law    nor     any      legal      obligation        to
\n               record the cause of incident by the Doctor at the
\n               time      of     admission           of    injured     in    the     Hospital       in
\n               M.L.C.          PW1 to PW15 have consistently deposed names
\n               of the accused in one voice, who were cross-examined
\n               at length yet nothing could be elicited from them so
\n               as to discard their evidence.                           In other words, it
\n               has      been      contended          that       judgment      and      orders      of
\n               conviction           passed          by    the    trial     court       for    seven
\n               accused           and          confirmed          by       High      Court          and
\n               additionally, finding five more accused guilty by
\n               the High Court, cannot be interfered with and the
\n               appeal         filed        by    four       of     them     deserves         to    be
\n               dismissed.\n<\/p>\n
      33.      As already mentioned herein above, no Appeal has
\n               been preferred by the State against that part of the
\n               order by which others have been acquitted by the
\n               Trial Court and confirmed by High Court.                                 Thus, in
\n               these Appeals, we are concerned with the conviction
\n               of      11       accused         only        i.e.       A1-R.Srinivas,             A2-
\n               T.K.S.Kutti, A15- N.V. Ravi @ Ravinanda Kumar, A25-
\n               R. Ramesh, A32-Dharanesh Kumar, A33-S.Jagadish and
\n               A46-Sharath Kumar convicted by both Trial Court and
\n               High Court and A4-C. Magesh, A8-Edwin Noyal, A16-
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                 14<\/span>
\n               S.Babu, A34-Nagaraj though acquitted by Trial Court
\n               but convicted by High Court.\n<\/p>\n
      34.      We would first like to take up Criminal Appeal No.
\n               1028 of 2008 preferred by four of those accused who
\n               have been found guilty for commission of offences
\n               under Section 302 and other allied sections by the
\n               High      Court       solely      on    the    strength       of   two    dying
\n               declarations of Sinija and Nagarathna marked as Exh.
\n               P29 and P30.\n<\/p>\n
      35.      At the outset, for deciding the said appeal, it is
\n               first to be ascertained whether Exh. P29 and P30 can
\n               partake the character of dying declarations so as to
\n               hold those four guilty for commission of the said
\n               offences.\n<\/p>\n
      36.      It is not in dispute that it was their statement
\n               recorded under Section 161 of the Cr.P.C. in the
\n               hospital by I.O.                There was no need at that time to
\n               have obtained their signatures on the same as it is
\n               prohibited by Section 162 of the Cr.P.C.                              Doctors
\n               have certified that they were in a fit state of
\n               health to have their statements recorded only at the
\n               end      of    recording         of    their    statements.          No   such
\n               certificate has been issued by the Doctors at the
\n               time their statement had commenced to be recorded.
\n               It is not in question-answer form.\n<\/p>\n
      37.      The incident having taken place as far back as on
\n               25.3.1999          in     a    metropolitan         city   like    Bangalore,
\n               where           several          magistrates           were        available,
\n               prosecution             never    thought       of    getting      their   dying
\n               declarations recorded in presence of a magistrate.
\n               There is nothing on record even to suggest that from
\n               25.3.1999 to 11.4.1999 when Sinija finally succumbed
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                    15<\/span>
\n               to the injuries and between 25.3.1999 to 22.4.1999
\n               when Nagarathna succumbed to the injuries magistrate
\n               was not available.                   Even if prosecution would have
\n               put forth such a ground it had only to be discarded
\n               at the threshold as the same is inconceivable.\n<\/p>\n
      38.      We have also not appreciated the manner in which the
\n               High Court in a cryptic manner, without properly
\n               discussing           the       legal      and        factual       aspect     of    the
\n               matter        held       the     aforesaid            4    accused     guilty       for
\n               commission of the said offence in addition to the
\n               conviction of seven accused who had already been
\n               found guilty by                 trial court. After all, it was an
\n               appeal        by     the       State      against          order     of   acquittal
\n               recorded by trial court.\n<\/p>\n
      39.      In     an    appeal         preferred       under          Section     378    of    the
\n               CrPC,         no doubt, it is true that High Court has
\n               ample powers to go through the entire evidence and
\n               to      arrive         at      its        own        conclusion        but        before
\n               reversing           the        finding          of        acquittal,      following
\n               conditions should be always kept in                            mind namely,\n<\/p>\n
                    (i)     the      presumption           of       innocence       of      the
\n                    accused         should be kept in mind;\n<\/p>\n
                    (ii) if two views of the matter are possible
\n                    view      favourable         to      the        accused    should        be
\n                    taken;\n<\/p>\n
                    (iii) the appellate court should take into
\n                    account the fact that the trial judge had
\n                    the advantage of looking at the demeanor of
\n                    witness; and\n<\/p>\n
                    (iv) the accused is entitled to benefit                                 of
\n                             doubt.            But       the        doubt     should         be
\n                    reasonable that is the doubt which rational
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                      16<\/span>
\n                    thinking         man       with        reasonable          honesty       and
\n                    consciously entertained, more so, when the
\n                    larger question with regard to treating Exh.
\n                    P29      and      Exh.       P30        as     dying       declarations
\n                    itself had become questionable.\n<\/p>\n
      40.      There was no occasion for the High Court to have
\n               passed order of conviction on the same, that too
\n               without          removing             the         doubts        with     regard        to
\n               correctness,             legality           and     propriety       of       two    dying
\n               declarations.\n<\/p>\n
      41.      Thus,       in     our      considered            opinion,       Criminal          Appeal
\n               No.1028 of 2008 filed by aforesaid four accused,
\n               convicted by High Court for the first time deserves
\n               to be allowed and is allowed.                                    They be set at
\n               liberty if not required in any other case.\n<\/p>\n
      42.      Now, coming              to the appeal of remaining 7 accused
\n               i.e.       Criminal            Appeal       No.     1029    of    2008,       we     have
\n               critically gone through                           the evidence of PW1 to PW
\n               15, remaining passengers of the ill-fated bus on the
\n               unfortunate date,                 having sustained burn injuries on
\n               account of overt acts of the accused as mentioned
\n               hereinabove.\n<\/p>\n
      43.      After        having            gone     through       the        entire       evidence
\n               critically, we have absolutely no doubt in our mind
\n               that       there      has       been        a     great    consistency         in     the
\n               evidence of PW 1 to PW15 with regard to different
\n               roles       attributed            to    A1-R.        Srinivas,         he    has     been
\n               identified             by       the         witnesses       as         one     of    the
\n               instigators            who       started          shouting       slogans       against
\n               management            of        the     Company           and     loyal       workers,
\n               moreover PW- 12 & 14 have attributed “pelting of
\n               stones” on A-1 R.Srinivas A2-T.K.S. Kutti, was also
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                        17<\/span>
\n               attributed more or less the same role as that of A1-
\n               R Srinivas by the PWs. A15-N.V. Ravi, was correctly
\n               identified by all the witnesses, who have deposed
\n               about him. He has been attributed role of “pouring
\n               kerosene on the bus” except PW 4 & 14 did not depose
\n               about the same role played by him. He has further
\n               been attributed with the “role of shouting slogans”
\n               and “preventing remaining occupants from alighting
\n               from the bus”. A32-Dharanesh has been assigned with
\n               similar          role          as    that          of     A-15        with    the     only
\n               difference that PW2 & 11                                could not identify him
\n               correctly.            He       has       been       attributed          the    role    of
\n               “passing of kerosene jars”, “blocking the exit of
\n               the bus” and “pelting of stones”. A33-Jagadish has
\n               been       correctly            identified               by     all     the    PWs,     in
\n               deposition           before          Court.         Further       majority      of    the
\n               witnesses have assigned him the role of “pouring of
\n               kerosene” and PW-15 also mentions that “he set the
\n               bus on fire”. In addition to this A-33 has been
\n               assigned         the       role          of   “pelting          stones”,      “shouting
\n               slogans” and “blocking the exit of the bus” as well.
\n               Thus, there cannot be any escape for the aforesaid 5
\n               accused          from          avoiding            conviction           and    sentence
\n               awarded         to     them         by    Trial         Court    and    confirmed      in
\n               appeal by High Court.                           Even otherwise, there are
\n               concurrent findings of fact recorded against them,
\n               which cannot be interfered with in this appeal.\n<\/p>\n
      44.      However,          on       account            of    inconsistency,             improper
\n               identification and in absence of specific role being
\n               attributed to A25-R. Ramesh and                                 A46-Sharath Kumar,
\n               we are of the considered view that their conviction
\n               cannot be upheld.\n<\/p>\n
Crl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                      18<\/span>\n<\/p>\n
      45.      Then the question arises before us is whether a case
\n               has been made out for recording acquittal of A25-
\n               R.Ramesh              and            A46-Sharath           Kumar.         Following
\n               inconsistencies have been noticed by us.\n<\/p>\n
      46.      PW2,      PW5,       PW6,       PW10        did   not   identify         A25-Ramesh
\n               correctly. PW7, PW13 and PW14 did not identify him
\n               at all. PW8 identified him but does not assign any
\n               role to him.              PW1, PW2, PW4, PW9, PW12, PW13, PW14,
\n               PW15      assigned             him    the    role     of    shouting      slogans.
\n               However PW4, PW12, PW13, PW14, assigned him further
\n               role, in addition to shouting slogans.                              PW3, PW5 and
\n               PW11 assigned him some other roles, different from
\n               shouting slogans.\n<\/p>\n
      47.      Coming to the case of A46-Sharath Kumar, all have
\n               identified him correctly but PW3, PW4, PW5 PW6, PW8,
\n               PW10, PW12 and PW14 did not depose about him at all.\n<\/p>\n
      48.      The majority of witnesses assigned him the role of
\n               assaulting with clubs.                       However, PW9, PW13 assigned
\n               different role to him but Doctor’s evidence does not
\n               disclose           anywhere that the injuries sustained                         by
\n               any of the injured persons could have been caused
\n               with clubs, meaning thereby there was no mention
\n               with regard to cause of injury.                             Thus, he can also
\n               be given benefit of doubt.                        In view of the aforesaid
\n               inconsistencies available on record, it would not be
\n               safe to convict him.\n<\/p>\n
      49.      It      may      be      mentioned            herein       that     in    criminal
\n               jurisprudence, evidence has to be evaluated on the
\n               touchstone of consistency.                          Needless to emphasise,
\n               consistency             is       the        keyword     for       upholding     the
\n               conviction of an accused. In this regard it is to be
\n               noted that this Court in the case titled Suraj Singh
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                               19<\/span>
\n               v. State of U.P. reported in 2008 (11) SCR 286 has
\n               held:-\n<\/p>\n
                      “The evidence must be tested for its
\n                      inherent   consistency   and   the   inherent
\n                      probability of the story; consistency with
\n                      the account of other witness is held to be
\n                      creditworthy. The probative value of such
\n                      evidence becomes eligible to be put into the
\n                      scales for a cumulative evaluation.”\n<\/p><\/blockquote>\n
      50.      In a criminal trial, evidence of the eye witness
\n               requires a careful assessment and must be evaluated
\n               for its creditability. Since the fundamental aspect
\n               of     criminal          jurisprudence   rests   upon    the    stated
\n               principle that “no man is guilty until proven so”,
\n               hence utmost caution is required to be exercised in
\n               dealing         with      situations   where   there    are   multiple
\n               testimonies and equally large number of witnesses
\n               testifying before the court. There must be a string
\n               that should join the evidence of all the witnesses
\n               and thereby satisfying the test of consistency in
\n               evidence amongst all the witnesses.\n<\/p>\n
      51.      As has already been mentioned hereinabove A6-P.A.\n<\/p>\n
               Bharathkumar has not preferred any appeal as his
\n               whereabouts are not known.               Thus, these appeals have
\n               no concern with his conviction.\n<\/p>\n
      52.      Normally, it is not in practice to consider each and
\n               every individual evidence available; however we had
\n               to make an exception in this case since it involved
\n               certain alleged odious deeds of few individuals. In
\n               order to impart full and substantial justice, we
\n               made this exception. Criminal jurisprudence entails
\n               that a thorough appreciation of records needs to be
\n               done in order to do complete justice.\n<\/p>\n
Crl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                   20<\/span>\n<\/p>\n
      53.      It would be apt to mention herein that interlocutory
\n               applications were filed by some of the accused in
\n               the trial court under Sections 91 and 233 of the
\n               Cr.P.C.          The       applications               mainly         pertained        to
\n               securing           of      certain          materials,              documents        and
\n               witnesses to establish their defence. At the very
\n               outset        it     is        pertinent      to      mention        that     in    this
\n               particular            matter        there        has      been      an     inordinate
\n               delay, despite the High Court granting six months
\n               for      the       completion          of     the      trial        and    thereafter
\n               another three months’ extension was sought by the
\n               trial court. As per Section 233, the trial court can
\n               refuse securing of defence evidence if it so feels
\n               that the same is being done to further delay the
\n               trial. The trial court had considered the judgment
\n               of the High Court of Karnataka in Crl. Rev. Petition
\n               No.     677\/03,         touching         almost          the   identical          issue,
\n               where in it was held that the defence evidence has
\n               to be led without summoning of any documents and the
\n               counsel for the defence has conceded to the said
\n               point. Thus, we are of the opinion that trial court
\n               has      committed             no   error        in      rejecting         the     above
\n               applications. Even otherwise there seems to be no
\n               prejudice caused to the accused by mere rejection of
\n               these applications.\n<\/p>\n
      54.      Only       in      the         light     of      the      aforesaid          we     have
\n               considered            the        case       of      each       of     the        accused
\n               independently.\n<\/p>\n
      55.         In Criminal Appeal No. 1029 of 2008, out of the
\n               seven       accused            appellants,          we    hereby          confirm    the
\n               conviction and sentence as awarded to them by the
\n               trial       court       and      confirmed          by    High      Court     for    the
\nCrl.A. Nos. 1028-1029 of 2008 …. (contd.)
\n                                                    21<\/span>
\n               following 5 accused, viz., A1-R.Srinivas, A2-T.K.S.
\n               Kutti,         A15-N.V.Ravi,              A32-Dharanesh,     A33-Jagadish,
\n               but      record        acquittal          of    A25-R.    Ramesh   and   A46-
\n               Sharath Kumar. They be released forthwith if not
\n               required in any other criminal case.\n<\/p>\n
      56.      For the reasons recorded above, Crl. Appeal No. 1028
\n               of 2008 filed by aforesaid 4 accused namely, A4-
\n               C.Magesh, A8 – Edwin Noyal, A16 – S Babu and A34-
\n               Nagraj is hereby allowed and they are acquitted.
\n               They be set at liberty forthwith, if not required in
\n               any other criminal case.\n<\/p>\n
      57.      Thus, the appeals stand allowed to the aforesaid
\n               extent        only       as    per    the       reasons   recorded   above.
\n               Judgments and orders of the Trial Court and High
\n               Court stand modified accordingly.\n<\/p>\n
                                                              ………………….J.\n<\/p>\n
                                                              [V.S. SIRPURKAR]<\/p>\n
                                                          …………………..J.\n<\/p>\n
                                                          [DEEPAK VERMA]<\/p>\n
         New Delhi.\n<\/p>\n
         April 30, 2010<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India C.Magesh & Ors vs State Of Karnataka on 30 April, 2010 Author: ………………….J. Bench: V.S. Sirpurkar, Deepak Verma REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.1028-1029 OF 2008 C. Magesh & Ors. etc. ….Appellants Versus State of Karnataka …Respondent J U D G M E N […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-22394","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nC.Magesh & Ors vs State Of Karnataka on 30 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/c-magesh-ors-vs-state-of-karnataka-on-30-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C.Magesh & Ors vs State Of Karnataka on 30 April, 2010 - 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