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 T

Deepak Verma, J.

1. Narration of facts of the aforesaid criminal appeals  

arising out of common judgment and order passed by  

High  court  of  Karnataka,  Bangalore,  in  three  

criminal  appeals,  one   preferred  by  convicted  

accused,  other  two  by  State  of  Karnataka,  would  

reveal shocking and sad plight as to how a labour  

dispute can turn hostile culminating  into a civil  

disobedience,  thus,  snatching  away  lives  of  two  

young women and injuring several others all working  

in  BPL  Engineering  Ltd.  (hereinafter  shall  be  

referred to as ‘BPL’)

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.

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.

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 A1 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

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 3

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 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.

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  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.

13. C.W.98  Suresh  Naidu,  Circle  Inspector  of  Police  

Ashoknagara  Police  Station  (hereinafter  shall  be  

referred to as 'I.O.') received  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.

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 6

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

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 7

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  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.

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

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 8

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.

21. We  have  heard  learned  senior  counsel  Mr.  Sushil  

Kumar with Mr. Aditya, and Mr.V.K. Biju, advocates  

for the appellants and Ms. Anitha Shenoy and Ms.  

Rashmi Nandakumar, Advocates for the respondent at  

length and perused the records.

22. At  the  outset,  learned  counsel  for  appellants  

strenuously contended before us that the whole story  

of the prosecution has been concocted and has been  

engineered only with an intention to take revenge  

from the accused, who were instrumental in causing  

strike and dharnas in BPL.  It has been contended  

that  all  the  so  called  injured  persons  whose  

statement was recorded by the police had stated in  

one  voice  that  the  fire  was  caused  by  some  

miscreants and at the first instance names of the  

appellants were not mentioned by them.  It was only  

after typed written report Exh. P 81 was submitted

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 9

to the police, names were disclosed for the first  

time meaning thereby that the same was concocted and  

prepared after meeting of minds as to who should be  

roped in as accused.   

23. It  was  also  contended  that  in  any  case,  the  

statements  of  Kumari  Sinija  and  Mrs.  Nagarathna  

Exh.P29  and  P30  cannot  be  treated  as  dying  

declarations  as  the  same  were  not  recorded  in  

accordance with rules formulated in Karnataka Police  

Regulations.   The  incident  had  admittedly  taken  

place  on  25.3.1999  but  the  statement  of  Kumari  

Sinija  was  recorded  on  2.4.1999  and  she  died  on  

11.4.1999.  Similarly, statement of Smt. Nagarathna  

was  recorded  on  20.4.1999  and  she  expired  on  

22.4.1999.  Prosecution has failed to satisfy as to  

why for all these days, the statement could not be  

recorded by the Magistrate.  Several other lacunae  

have been pointed out to us to show that the same  

cannot be treated as dying declarations as they do  

not fulfill the requirement of law.  It was also  

contended that no signatures  are required to be  

obtained on a statement recorded under Section 161  

of  the  Cr.P.C.  yet  the  same  were  signed  which  

clearly violates mandate of Section 162 of CrPC.   

24. The photographs of the accused were already shown to  

the witnesses who had admitted the same. Therefore,  

their  identification  did  not  have  any  legal  

sanctity.  Evidence of the prosecution is required  

to  be  considered  in  whole  so  as  to  see  its  

credibility but it is not permissible in law to say  

that for few of the accused, it would be looked into  

from one angle and for others it would be looked

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 10

into from different angle.  Names of the persons on  

the spot or their identity were not reflected. In  

other words, it was contended that the very genesis  

of  the  commission  of  the  crime,  FIR  having  been  

denied by the person lodging it. i.e., lodger PW 42  

A.S. Aswathappa, nothing had in fact survived in the  

prosecution case and accused deserved acquittal on  

this ground alone.

25. It  was  further  contended  by  Mr.  Sushil  Kumar,  

learned senior counsel that case could not have been  

proceeded  against  any  of  the  accused  as  he  was  

declared hostile and in any case, FIR not being a  

substantive piece of evidence and in absence of any  

other legally admissible evidence, they could not  

have  been  framed.  Defence  has  not  disputed  the  

incident but what has been seriously contended was  

the  identity  of  the  accused,  a  burden  which  lay  

heavily  on  the  prosecution  but  it  failed  to  

discharge it satisfactorily.  In all the statements  

recorded  earlier,  names  of  none  of  accused  were  

revealed.  It was only after typed written report  

was submitted by Ashwathappa, the names appeared.

26. It is settled law on the point that FIR is not a  

substantive piece of evidence. However the FIR can  

not be given a complete go-by since it can be used  

to corroborate the evidence of the person lodging  

the  same.  In  the  judgment  of  this  Court  titled  

Baldev Singh vs. State of Punjab reported in (1990)  

4  SCC  692,  it  was  held  that  as  far  as  the  

evidentiary value of the FIR is concerned it can  

only be used to for corroboration of its maker, but  

the FIR can not be used as substantial evidence or

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 11

corroborating a statement of third party.

27. On careful examination of the deposition of PW-42,  

Ashwathappa, it is found that even though he had  

denied lodging of complaint with the police, but on  

examination of deposition of PW-56, Suresh Naidu,  

CPI Ashoknagar P.S., it is found that he has stated  

that  PW-42,  Ashwathappa,  had  come  to  the  police  

station along with a typed complaint, which was then  

registered and FIR was lodged. Subsequently it was  

sent  to  the  court  of  XI  Additional  Chief  

Metropolitan Magistrate, Bangalore. Thus it is not  

possible on account of the above said discrepancies  

in the evidence to ascertain the origin of the typed  

complaint.  Thereby  we  can  not  totally  negate  the  

possibility of the complaint being dictated by the  

company officials. Moreover there is no secondary  

evidence led to ascertain the veracity of the FIR.  

Under such circumstances it would not be correct for  

us to wholly place our reliance on the same.  

28. Learned counsel for the appellants then contended,  

if FIR and dying declarations are discarded, then  

nothing would survive to hold the appellants guilty  

for  commission  of  serious  offence.   It  was  also  

submitted that under Section 380 of the CrPC,  Court  

has every power and  jurisdiction to examine,  re-

appreciate  and evaluate the evidence available on  

record and then only to record either finding of  

guilt or acquittal.

29. It  was  also  brought  to  our  notice  that  in  the  

application for remand filed on 9.4.1999, no mention  

had  been  made  with  regard  to  recording  of  dying  

declaration of Kumari Sinija. Correctness  and legal

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 12

sanctity  of  the  said  dying  declarations   are  

challenged  on  the  grounds  that  they  were  not  in  

question-answer form and endorsement made by doctors  

at the end of the statements that they were mentally  

fit is not the requirement of law for proving the  

dying declarations.   

30. On the other hand, learned counsel for respondent  

M/s Anitha Shenoy and Rashmi Nandakumar strenuously  

contended that trial court had properly appreciated  

the  evidence  available  on  record  and  thereafter  

only, convicted seven accused. In appeal in the High  

Court,  five  more  have  been  found  guilty  for  

commission of offences mainly on the basis of dying  

declarations of Kumari Sinija, and Mrs. Nagarathna,  

who  had  categorically  named  these  five  accused,  

ultimately  having  succumbed  to  burn  injuries  

sustained by them.  Thus, their statements recorded  

under Section 161 CrPC, after their death would be  

treated  as  dying  declarations  and  the  High  Court  

committed no error of law in doing so.

31. It was contended that all the accused were already  

known to the witnesses and they had been working  

either in the BPL or used to participate in protest  

of  their  demands.  Thus,  holding  of  any  

identification parade in the facts and circumstances  

of the case was not required.  They have further  

denied that photographs were already shown to them  

before they were identified in the dock in court.  

It  was  further  submitted  by  her  that  mere  

declaration of the lodger of the FIR hostile, will  

not completely wash out the prosecution case, as it  

would  still  depend  on  the  oral  evidence  of  the

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 13

witnesses  coupled  with  the  Exhibits  and  M.Os  

(Material  Objects).  Similarly,  even  if  dying  

declarations are not taken into consideration, there  

is still sufficient material on record to show that  

even  those  five  who  have  additionally  been  found  

guilty  for  commission  of  offences  as  mentioned  

hereinabove by the High Court, cannot be acquitted.  

32. It has also been submitted that it is neither the  

requirement  of  law  nor  any  legal  obligation  to  

record the cause of incident by the Doctor at the  

time  of  admission  of  injured  in  the  Hospital  in  

M.L.C.   PW1 to PW15 have consistently deposed names  

of the accused in one voice, who were cross-examined  

at length yet nothing could be elicited from them so  

as to discard their evidence.  In other words, it  

has  been  contended  that  judgment  and  orders  of  

conviction  passed  by  the  trial  court  for  seven  

accused  and  confirmed  by  High  Court  and  

additionally, finding five more accused guilty by  

the High Court, cannot be interfered with and the  

appeal  filed  by  four  of  them  deserves  to  be  

dismissed.   

33. As  already  mentioned  herein  above,  no  Appeal  has  

been preferred by the State against that part of the  

order by which others have been acquitted by the  

Trial Court and confirmed by High Court.  Thus, in  

these Appeals, we are concerned with the conviction  

of  11  accused  only  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 convicted by both Trial Court and  

High Court and A4-C. Magesh, A8-Edwin Noyal, A16-

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 14

S.Babu, A34-Nagaraj though acquitted by Trial Court  

but convicted by High Court.

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. At the outset, for deciding the said appeal, it is  

first to be ascertained whether Exh. P29 and P30 can  

partake the character of dying declarations so as to  

hold those four guilty for commission of the said  

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

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 15

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

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.  

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  A1-R.  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 attributed “pelting of  

stones” on A-1 R.Srinivas A2-T.K.S. Kutti, was also

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 17

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 of “pouring  

kerosene on the bus” except PW 4 & 14 did not depose  

about the same role played by him. He has further  

been attributed with the “role of shouting slogans”  

and “preventing remaining occupants from alighting  

from the bus”. A32-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  of  

“passing of kerosene jars”, “blocking the exit of  

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.  

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

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

Crl.A. Nos. 1028-1029 of 2008 …. (contd.) 19

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.

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

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,  

where in 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

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.

    ......................J.      [V.S. SIRPURKAR]

                .......................J.               [DEEPAK VERMA]

New Delhi. April 30, 2010