C. MAGESH AND ORS.versusSTATE OF KARNATAKA

                    [2010) 5 S.C.R. 623


                  C. MAGESH AND ORS.                              A
                           v.
                 STATE OF KARNATAKA
        (Criminal Appeal Nos. 1028-1029 of 2008)
                      APRIL 30, 2010
                                                                  B
     [V.S. SIRPURKAR AND DEEPAK VERMA, JJ.]

    Penal Code, 1860:

     s. 302 - Charge sheet against 49 accused persons -           c
Conviction of 7 accused - Upheld by High Court Four
accused additionally found guilty by Hifjh Court - On appeal,
held: There was consistency in evidence regarding role
played by 5 of the accused in the commission of offence -
Concurrent finding of facts by courts below against them not      0
interfered with - HowAver, as there was inconsistency,
improper identification and absence of specific role attributed
to the other 2 accused, their conviction is not sustained.

     s.302 - Acquittal of four accused by trial court - High
Court ordered conviction relying on dying declarations - Held:    E
Dying declarations were not in question-answer form and
endorsement by the doctors not made in the beginning of the
statements that the declarants were mentally fit - Moreover,
no reason given as to why dying declarations were not
recorded in the presence of Magistrate - Since legality and       F
correctness of dying declarations was doubtful, High Court
erred in relying on the same in ordering conviction of the 4
accused - Code of Criminal Procedure, 1973 - s.380 -
Evidence Act, 1872 - s.32.
                                                                  G
    FIR - Evidentiary value of - Discussed.

    Code of Criminal Procedure, 1973: s.378 - Appeal
against acquittal by trial court - Scope of interference -
Discussed.
                            623                                   H
    624     SUPREME COURT REPORTS              [201 O] 5 S.C.R.


A       Criminal jurisprudence: Evidence to be evaluated on the
    touchstone of consistency - Consistency is the keyword for
    upholding the conviction of an accused.

        Prosecution case was that the accused persons and
   the deceased were employees of BPL Company. There
8
   was labour unrest in the company. The accused persons
   were active members of trade union. Some of the workers
   of the company were not taking part in the demonstration
   and in the strike called by the Union: and were attending
   to their work. They were provided transport and police
C protection by the company. On the day of incident, bus a
   carrying some of the loyal employees of the company was
   stopped. A-1 and A-2 shouted slogans in favour of Union
   and against the loyal employees of the company. A-6 and
   A-47 and others pelted stones on the bus. A-46 stood at
D the door of the bus to prevent employees from getting out
   of the bus. A-15 and A-33 were supplied kerosene by A-
   32 which was sprinkled on the bus and the passengers.
   A-33 put bus on fire. Some of the passengers of the bus
   sustained serious burn injuries and were shifted to
E hospital. Dying declarations Exh. P29 and P30 were
   recorded in the presence of doctor. Charge sheet was
   submitte,d against 49 accused. Trial court convicted in all
   only 7 accused i.e. A-1, A-2, A-15, A-25, A-32, A-33 and A-
  ;46 under Sections 302, 307, 435, 427, 143 and 148 r.w.
F Section 149 IPC and awarded life sentence. The
   convicted accused filed appeal before High Court. State
   also filed appeal for enhancement of sentence of life
   imprisonment to death sentence and against the acquittal
   of other 42 accused persons. High Court uph~ld the
G conviction of 7 accused and also convicted A-4, A-8, A-
   16 and A-34 for the same offence. Hence the appeals.

        Dismissing the appeals of A-1, A-2, A-15, A-32, A-33
    and allowing the appeals of A-4, A-8, A-16, A-25, A-34 and
    A-46, the Court
H
 C. MAGESH AND ORS. v. STATE OF KARNATAKA 625


     HELD: 1. It is settled law that an FIR is not a A
substantive piece of evidence. However the FIR cannot
be given a complete go-by since it can be used to
corroborate the evidence of the person lodging the same.
On careful examination of the deposition of PW-42,
informant, it was found that even though he had denied B
lodging of complaint with the police, but examination of
deposition of PW-56, Circle Inspector of Police showed
that PW-42, 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 c
Magistrate. Thus it was not possible on account of the
said discrepancies in the evidence to ascertain the origin
                                                               -
of the typed complaint. Thereby, the possibility of the
complaint being dictated by the company officials cannot
be totally negated. Moreover, there was no secondary
                                                           0
evidence led to ascertain the veracity of the FIR. Under
such circumstances, it would not be correct to wholly
place reliance on the same. [Paras 26,27] [636-G-H; 637-
A-D]

     Baldev Singh v. State of Punjab (1990) 4 SCC 692,    E
relied on.

      2. It is not in dispute that Exh. P29 and P30 was
statement recorded under Section 161 Cr.P.C. in the
hospital by 1.0. There was no need at that time to have F
obtained signatures on the same as it wa·s prohibited by
Section 162 Cr.R.C. Doctors certified only at the end of
recording of their statements that the deceased were in
a fit state of health to have their statements recorded. No
such certificate was issued by the Doctors at the time G
their statement commenced to be recorded. It was not in
question-answer form. The incident took place as far
back as on 25.3.1999 in a metropolitan city like Bangalore,
where severelll magistrates were available, however
prosecution di~ not get their dying declarations recorded
                                                          H
    626    .SUPREME COURT REPORTS             [2010] 5 S.C.R.

A in the presence of a magistrate. There is nothing on
  r~cord even to suggest that magistrate was not available
  from 25.3.1999 to 11.4.1999 when the deceased 1 finally
  succumbed to the injuries and between 25.3.1999 to
  22.4.199.9 when deceased 2 succumbed to the injuries.
B The High Court in a cryptic manner, without properly
  discussing the legal and factual aspect of the matter held
  the said 4 accused guilty for commission of the said
  offence in addition to the conviction of seven accused
  who were already found guilty by trial court. In an appeal
c preferred under Section 378 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
0
  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 adv<1ntage of looking at the demeanor
E of witness; and (iv) the accused is entitled to benefit of
  doubt. But the doubt should be reasonable that is the
  doubt which rational thinking man with reasonable
  honesty and consciously entertained, more so, when the
  larger question with regard to treating Exh. P29 and Exh.
  P30 as dying declarations itself had become
F questionable. There was no occasion for the High Court
  to have passed order of conviction on the san:ie, that too
  without removing the doubts with regard to correctness,
  legality and propriety of two dying declarations. Thus,
  appeal filed by the said four accused, convicted by High
G Court for the first time deserves to be allowed. [Paras 36
  41] [639-G-H; 640-A-H; 614-A-C]

        3. There was a great consistency in the evidence of
    PW 1 to PW15 with regard to different roles attributed to
H   A-1. He was identified by the witnesses as one of the
 C. MAGESH AND ORS. v. STATE OF KARNATAKA            627


instigators who started shouting slogans against A
management of the Company and loyal workers,
moreover PW- 12 and 14 attributed "pelting of stones" on
A-1. A-2 was also attributed more. or less the same role
as that of A-1 by the PWs. A-15 was correctly identified
by all the witnesses, who deposed about him. He was B
attributed role of "pouring kerosene on the bus"; except
PW 4 and 14 did not depose ·about the same role played
by him. He was further attributed with the "role of
shouting slogans" and "preventing remaining occupants
from alighting from the bus". A-32 was assigned with c
similar role as that of A-15 with the only difference that
PW2 and 11 could not identify him correctly. He was
attributed the role of "passing of kerosene jars",
"blocking the exit of the bus" and "pelting of stones". A-
33 has been correctly identified by all the PWs, in
                                                            0
deposition before Court. Further majority of the witnesses
assigned him the role of "pouring of kerosene" and PW-
15 also mentioned that "he set the bus on fire". In
addition to this, A-33 was 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 E
said 5 accused from avoiding conviction and sentence
awarded to them by Trial Court and confirmed in appeal
by High Court. Even otherwise, there were concurrent .
findings of fact recorded against them, which cannot be
interfered with in the present appeal. However, on F
account of inconsistency, improper identification and in ·
absence of specific role being attributed to A-25 and A-
46, their conviction cannot be upheld. PW2, PW5, PWS,
PW10 did not identify A25 correctly. PW7, PW13 and
PW14 did not identify him at all. PW8 identified him but G
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, H
    628      SUPREME COURT REPORTS               [2010] 5 S.C.R.


A   different from shouting slogans. Regarding the case of
    A46, all identified him correctly but PW3, PW4, PW5, PW6,
    PW8, PW10, PW12 and PW14 did not depose about him
    at all. The majority of witnesses assigned him the role of
    assaulting with clubs. However, PW9, PW13 assigned
B   different role to him but Doctor's evidence did 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
c   doubt. In view of the said inconsistencies available on
    record, it would not be safe to convict him. [Paras 43, 44,
    46-48] [641-E-H; 642-A-D, E-H; 664-A-B]

       4. In criminal jurisprudence, evidence has to- be
  evaluated on the touchstone of consistency.
D Consistency is the keyword for upholding the conviction
  of an accused. 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
E 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
F evidence of all the witnesses and thereby satisfying the
  test .of consistency in evidence amongst all the
  witnesses. Normally, it is not in practice to consider each
  and every individual evidence available; however an
  exception is made in this case since it involved certain
G alleged odious deeds of few individuals. Criminal
  jurisprudence entails that a thorough appreciation of
  records needs to be done in order to do complete justice.
  [Paras 49-52] [643-C, E-H; 644-A-B]

          Suraj Singh v. State of U. P. 2008 (11) SCR 286, relied
H   on.
 C. MAGESH AND ORS. v. STATE OF KARNATAKA                    629


                      Case Law Reference:                           A
    (1990) 4 sec 692           relied on              Para 26
    2008 (11) SCR 286          relied on              Para 49
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal               B '"
No. 1028-1029 of 2008.

     From the Judgment & Order dated 14.11.2007 of the High
Court of Karnataka at Bangalore in Criminal Appeal No. 189
of 2004 and Criminal Appeal No. 1624 of 2003.
                                                                    c
    Sushil Kumar, V.K. Biju Aditya, Meenakshi, Anand and
Dinesh Kumar Garg for the Appellants.

   Anitha Shenoy and Rashmi Nandakumar for the
Respondent.
                                                                    D
    The Judgment of the Court was delivered by

     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     E
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.     F
(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        G
several others.

     3. BPL has eight units .spread over different parts of
Bangalore city, carrying on its business activities. It appears,
looking to the nature of activities that are carried on by BPL,     H
    630        SUPREME COURT REPORTS              [2010] 5 S.C.R.


A  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.
B 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
c 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.
D      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
E the Union held Dharnas, protests and meetings, outside factory
  premises at different units of BPL. It is on record that A 1 R.
  Srinivas and A2 T.K.S. Kutti were the President and Secretary •
  respectively.of the said Union and A3 to A47 and other
  accused were said to be active members of the said Union.
F According to prosecution, they had been actively participating
  in the activities ofthe Union, maki['lg demands, which the BPL
  management did not accede to.

        5. Since the initial demands made by members of the
G 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
  member$Gf Union, persuading employees not to attend to the
H work    at
         '3PL's Basavapura Unit. This led to lodging of
 C. MAGESH AND ORS. v. STATE OF KARNATAKA 631
            [DEEPAK VERMA, J.]
complaint/FIR by Lalitha, an employee of BPL with Hebbagodi         A
Police Station, bringing aforesaid facts to the notice of police.
Consequently, a charge sheet was filed against accused A6,
A 15, A33 and A36, on the complaint filed by Lalitha. There were
as many as three lady accused also named in the said
complaint.                              ·                           B

   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 te take help of police so as· to provide C
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.                                          D

     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    E
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      F
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           G
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         H
,-,   .
              632      SUPREME COURT REPORTS                  [2010) 5 S.C.R·.


          A   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
          B   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
          C   chartered bus carrying some of the employees of BPL, was
              stopped at Annepalya so as to allow the workers to alight. At
              that time, A 1 to 49 formed an unlawful assembly. A 1 and A2
              were shouting slogans in favour of the Union and against the
              loyal employees of the factory. A6 and A47 and others pelted
          D   stones with the result glass panes of the bus were broken. A46
              stood at the only gate available at front part of the bus along
              with others to prevent the workers from getting down. A 15 and
              A33 were supplied kerosene in two cans by A32, which was
              sprinkled not only on the remaining passengers of the bus but
          E   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.
          F
                    13. C.W.98 Suresh Naidu, Circle Inspector of Police
              Ashoknagara Police Station (hereinafter shall be referred to as
              '1.0.') received telephonic message in respect of the aforesaid
              incident at about 6.45 p.m. Taking clue from the said message,
              1.0. immediately proceeded to the spot and found bus bearing
          G   registration No. TN 288 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
          H   Patrolling Van popularly called as Hoysala Van, named after
 C. MAGESH AND ORS. v. STATE OF KARNATAKA 633
            [DEEPAK VERMA, J.]
one of the Rulers of the State. CW1 N. Ashwathappa, after A
being given first aid treatment in Bowring Hospital, lodged
written complaint Exh. P81. Crime No. 273/1999 was
registered. Subsequently, the concerned judicial magistrate was
also informed at about 11.45 p.m. Thereafter, photographs of
the ill-fated bus from outside were taken. 1.0. seized kerosene B
can, stones, clubs, half burnt vanity bags, chappals, rubber
sheet, covers, glass pieces and one can with kerosene oil.
CW.98, 1.0. prepared a spot Mahazar Ex.P1.

     14. Thereafter, 1.0., C.W. 98 went to Victoria Hospital at C
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.              D

     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 E
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 F
of the Indian Penal Code (IPC) along with other allied sections.
On 19.6.1999 1.0. sealed all the articles pertaining to this case
and fo_rwarded it to the Forensic Science Laboratory for analysis
through Head Constable 660.

     16. After completion of usual investigation, he submitted G
charge sheet against 49 accused. They were charged and
prosecuted for commission of offences punishable under
Sections 1208, 302, 307, 324, 326, 332, 148, 435, 427, 147,
148, 143, 506 read with Section 149 of the IPC.
                                                               H
    634      SUPREME COURT REPORTS                   [2010] 5 S.C.R.

A        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 1to41 in sur;port
    of the prosecution version. The statement of the accused as
    contemplated under Section 313 Cr.P .C. was recorded.
B   Accused also examined themselves as OW 1 to 31 and got
    marked Exh. 01 to 0328 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-
C 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
D 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 ·.
E   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
F   by the State of Karnataka, against that part of judgment and
    order of trial court whereby out of 49, 42 accused were
    acquitted.

        20. All the appeals before the High Court were heard
  analogously and disposed of by a common judgment. These
G appeals have been preferred firstly by the seven accused
  convicted by the trial court and secondly by four other accused,
  viz., A4-C. Magesh, AB-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.
H Bharathkumar convicted by the High Court has not preferred
 C. MAGESH AND ORS. v. STATE OF KARNATAKA 635
            [DEEPAK VERMA, J.]
any appeal, thus in this judgment/order, we are not dealing with   A
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
                                                                   8
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 C
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 D
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 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 E
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 F
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 G
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 H
    636       SUPREME COURT REPORTS                    [2010] 5 S.C.R.


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
8
    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 into from different angle. Names of
C   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
D   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
E   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
F   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
G   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 sec 692, it was held that as far as the evidentiary
H   value of the FIR is concerned it can only be used to for
 C. MAGESH AND ORS: v. STATE OF KARNATAKA                    637
            [DEEPAK VERMA, J.]
corroboration of its maker, but the FIR can not be used as           A
substantial evidence or 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          8
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
                                                                     c
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       D
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         E
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.            F

     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 sanctity of the said dying declarations
are challenged on the grounds that they were not in question-        G
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/        H
    638     SUPREME COURT REPORTS                  [2010] 5 S.C.R.

A 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
B 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
c 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
D 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
E still depend on the oral evidence of the 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
F 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
G 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
H
   C. MAGESH AND ORS. v. STATE OF KARNATAKA 639
              [DEEPAK VERMA, J.]
 the trial court for seven accused and confirmed by High Court A
 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
                                                                8
  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. A 1-
  R.Srinivas, A2-T. K.S. Kutti, A15- N.V. Ravi @ Ravinanda C
  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, AS-Edwin Noyal,
  A16-S.Babu, A34-Nagaraj though acquitted by Trial Court but
  convicted by High Court.
                                                                        D
     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              E
 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.                                   F

      36. It is not in dispute that it was their statement recorded
 under Section 161 of the Cr.P.C. in the hospital by 1.0. 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. G
 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.                       H
    640       SUPREME COURT REPORTS                    (2010] 5 S.C.R.


A         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
B   25.3.1999 to 11.4.1999 when Sinija finally succumbed to the
    injuries and between 25.3.1999 to 22.4.1999 when Nagarathna
    succumbed to the injuries magistrate was not available. Even
    if prosecution would have put forth such a ground it had only to
    be discarded at the threshold as the same is inconceivable.
c        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
D   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
E   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;
F
          (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
G
          demeanor of witness; and

          (iv) the accused is entitled to benefit of doubt. But the doubt
          should be reasonable that is the doubt which rational
          thinking man with reasonable honesty and consciously
H         entertained, more so, when the larger question with regard
 C. MAGESH AND ORS. v. STATE OF KARNATAKA 641
            [DEEPAK VERMA, J.)
    to treating Exh. P29 and Exh. P30 as dying declarations        A
    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       B
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. C

     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     o
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 E
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 attributed F
more or less the same role asAhat of A 1- R Srinivas by the
PWs. A 15-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 G
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 H
    642      SUPREME COURT REPORTS                  [201 OJ E i.C.R.

A   of kerosene jars", "blocking the exit of the bus" and "p· ting 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
B 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
c 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
D   considered view that their conviction cannot be upheld.

         45. Then the question arises before us is whether a case
    has been made out for recording acquittal of A25-R.Ramesh
    and A46-Sharath Kumar. Following inconsistencies have been
E   noticed by us.

         46. PW2, PW5, PW6, PW10 did not identify A25-Ramesh
    correctly. PW?, 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 assigried him
F   the role of shouting slogans. However PW4, PW12, PW13,
    PW14, assigned him further role, in addition to shouting
    slogans. PW3, PW5 and PW11 assigried him some other
    roles, different from shouting slogans.

G       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
H   assaulting with clubs. However, PW9, PW13 assigned different
 C. MAGESH AND ORS. v. STATE OF KARNATAKA                    643
            [DEEPAK VERMA, J.]
role to him but Doctor's evidence does not disclose anywhere A
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.        B

      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 C
Singh v. State of UP. 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 D
    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   E
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          F
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. G
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   H
    644      SUPREME COURT REPORTS                  [2010] 5 S.C.R.


A    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
B   order to do complete justice.

          53. It would be apt to mention herein that interlocutory
    applications were filed by some of the accused in the trial court
    under Sections 91 and 233 of the Cr.P.C. The applications
C   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
0   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 judgrpent of
    the High Court of Karnataka in Crl. Rev. Petition No. 677/03,
    touching almost the identical issue, where in it was held that
E   the defence evidence has to be led without summoning of any
    documehts 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
F   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
G   accused appellants, we hereby confirm the conviction and
    sentence as awarded to them by the trial court and confirmed
    by High Court for the following 5 accused, viz., A 1-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.
H
     C. MAGESH AND ORS. v. STATE OF KARNATAKA 645
                [DEEPAK VERMA, J.]
    They be released forthwith if not required in any other criminal     A
    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
                                                                         8
    allowed and they are acquitted. They be set at liber:!Y 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.        C

    D.G.                                      Appeals disposed ·of.




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