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Judgment
K. Sreedhar Rao, J.—It is the case of the prosecution that the BPL Engineering Limited has eight units at Bangalore spread over at Bommanahalli, Basavanapura, Bommasandra, Koodln gate and two at White Field, and at Old Madras road. The large number of workers were engaged on temporary basis, the employees of all the eight units at Bangalore formed a common trade union and they made an application for registration of the Union. The management opposed the registration, however, the Union formed by the employees way registered and the management appealed to the Assistant Labour Commissioner challenging the registration of Union. A show cause notice was issued to the union. This Court quashed the show cause notice. The registered union of the employees affiliated to the CITU thus came into existence. A1 & A2 are the president and Secretary of the union and A3 to A47 and other accused are said to be the active members of the union. The trade union placed the demands before the management for regularization of all the temporary employees and in that regard, Dharanas, protests and meetings were being held continuously outside the factory premises at Basavapura and Bommanahalli units. On 19.11.1998 there was a protest demonstration by the leaders, office bearers and other activists of the Union persuading the employees not to attend the work at Basavapura unit One Lalitha and three other workers (not a witness in this case) lodged complaint before the Hebbagodi police station against A6 and 4 other lady workers (lady workers are not accused in this case) for assaulting and preventing them from attending the work. On the basis of the said complaint, the police have filed charge-sheet against A6, A15, A33, A36 and three of the lady accused named in the said complaint The BPL Management, also made a requisition for police protection to the factory and to the employees making allegations against A6, A15, A33, A36 and A47 and also referred to the complaint lodged by lalitha on 19.11.1998. On the same day, the BPL management also gave a complaint to Madiwala Police against 10 persons viz., A6, A15, A33, A36, A47 and others for assaulting and obstructing the workers from attending the work at Bommanahalli unit. The police have not filed any charge sheet in respect of the said complaint made by BPL management.
The BPL management was not prepared to accede to the demands of the workers, therefore, the office bearers and the members of the Union were continuously holding protest demonstration in the factory premises. The BPL management had also filed Civil Suits on 30.11.1998 and 02.12.1998 against the striking union members not to hold protest demonstration in the factory premises. The civil Court, in both the suits, injuncted/restrained the workers from holding protest demonstration within a distance of 100 Meters from the factory premises at Basavapura and Bommanaballi units.
The BPL management had also initiated disciplinary proceedings against A6, A15 & A33 for the alleged acts of misconduct at Bommanahalli Unit and the said persons are also named as accused in the complaint lodged at Madiwala police in respect of Bommanahalli unit. But in respect of the allegations made against them in the complaint relating to Basavapura unit, no disciplinary action was initiated.
The protest demonstration and the strike, which was commenced on 19.11.1998, went on for about a week. The leaders and members of the Union went on hunger strike in Cubbon Park near Vidhana Soudha to compel the Government''s intervention and mediation in the matter. The most of the employees who are loyal to the management were regularly attending the work of the factory at Basavapura and Bommanahalli units. The bus drivers also went on strike. The management hired private buses from 19.11.1998 to facilitate the transport of the loyal employees to the work place.
It is further case of the prosecution that the striking members of the Union became desperate on account of loyal workers supporting the management On 25.03.1999, the bus carrying the employees of the Basavapura and Bommanahalli units was coming from the factory towards the nearest point of residence of the workers. When the bus came at Annepalya, A1 to A49 formed into members of unlawful assembly, A1 & A2 were shouting slogans in favour of Union and against the loyal employees of the factory, intercepted the bus at Annepalya at 6.40 p.m. A6, A47 and others pelted stones, A46 stood at the door of the bus along with others to prevent the workers from getting down. A15 & A33 poured kerosene on some of the inmates of the bus and on the tyres of the bus. A33 set fire. The police personnel escorting the bus by van, fired bullets in the air. The accused dispersed and ran away from the spot. PW42 - the security guard (first informant) was also assaulted by A32 with the club and caused fracture of his right hand. PW 1 to PW 5, PW11, PW12 & PW15 had sustained burn injuries. The Hoysala police van took the above injured persons to Victoria Hospital and later on they are admitted to D.G. Hospital, while under treatment, one Sinija and Nagarathna died on account of severe burn injuries during treatment at D.G. hospital Bangalore.
It is further case of the prosecution that PW.42 had been to Bowring hospital for treatment PW27, the Manager of HRD of the BPL Engineering Limited and PW42 proceeded to Ashoknagar police where PW42 lodged complaint at Ex. P.81. The police apprehended the accused named in the complaint and after thorough investigation filed the charge sheet against the A1 to A49 for committing the offences u/s 120(B), 143, 147, 148, 324, 326, 332, 307, 302, 435, 427, 506 (B) read with 149 IPC.
The trial Court on the basis of the oral evidence and the dying declarations of Sinija and Nagarathna convicted A1 (R. Srinivas), A2 (T.K.S. Kutti), A15 (N.V. Ravi@ Ravinandakumar), A25 (R. Ramesh), A32 (Dharaneshkumar), A33 (S. Jagadish) and A-46 (Sharathkumai) for committing offences u/s 143, 148, 307, 435, 427, 302 read with 149 IPC. The accused are sentenced to undergo imprisonment for life for committing often-: u/s 302 IPC and lesser punishments are imposed for committing the other offences. The convicted accused are in appeal.
Being aggrieved by the judgment of conviction, accused Nos. A1, A2, A15, A25, A32, A33, and A46 have preferred Crl. A. 1624/2003. The State, being aggrieved by the acquittal of the other accused and being not satisfied with the quantum of sentence has filed Crl. A. 188/2004 & 189/2004 seeking enhancement of sentence for the convicted accused.
Sri Tomy Sabastian, learned Senior Counsel for the accused in all the appeals urged the following points to assail the order of conviction and also resisted the appeal filed by the State against the acquittal and seeking enhancement of sentence:
a) In the Medico Legal Case (MLC register) of the Victoria Hospital pertaining to admission of deceased Nagarathna and other injured, the history is given as "burns due to unknown people (BPL workers) on 25.03.1999 at about 6.30 pm at Annepalya tollgate and they burn the BPL workers'' bus". In respect of the other injured viz., PW3, PW4, PW5, PW11 & PW15, the history noted is similar to the one made in respect of deceased Sinija. The deceased and other victims, when they were first enquired at the earliest, they categorically say before the doctor that some unknown persons have burnt the bus and the names of none of the accused are stated before the Doctor at the time of recording the history of the bums. The admission records of the D.G. hospital also do not indicate that none of the victims of the burn injuries give the names of any of the accused as the culprits.
b) Sinija was under treatment in D.G. hospital from 25.03.1999 to 11.04.1999. The prosecution has adduced evidence to the effect that Sinija made dying declaration before the Investigation Officer in the presence of the Doctor when her statement was recorded on 02.04.1999. But in the remand application dated 09.04.1999 filed before the committal Court, there is no mention about recording of dying declaration of Sinija. On the other hand it reveals that Sinija, Nagarathna and Indumathi have suffered serious burn injuries and one Thunga, Rubi, Chandrakala, Nalini, Latha Maheshwari and Devaki have sustained burn injuries and they are taking treatment in D.G. hospital as inpatients and the condition of three persons amongst the injured is very precarious and they are not in a position to give statements. With reference to these averments, the Investigation Officer (PW56) in his cross-examination admits that "three persons with precarious conditions unable to give statement" referred to in the remand application are Sinija, Nagarathna and Indumathi. In view of the said evidence, it is argued that Sinija could not have made dying declaration on 2.4.1999 and the alleged dying declaration is concocted one.
c) It is further submitted that the dying declaration of Sinija bears the signature of Sinija. The defence made a request before the trial Court to seek reference of the handwriting and signature of Sinija for hand writing experts opinion. The request is rejected by the trial Court and the order of the trial Court in rejecting request of the defence is illegal and that the defence had no fair opportunity to prove that the dying declaration of Sinija is concocted and it does not bear her signature.
d) Deceased Nagarathna was under treatment from 25.03.1999 to 22.04.1999 and her dying declaration was recorded by the investigation officer in the presence of the doctor on 20.04.1999, But the evidence of Dr. Manjunath (PW31) who conducted post mortem discloses that in view of severe burn injuries on her lips and her condition as on 22.04.1999, she could not have given dying declaration and therefore, the dying declaration of Nagarathna is also concocted and cannot be relied on.
(e) PW16- Sandeep (the brother of Sinija) has deposed that, that his sister Sinija had made oral dying declaration implicating A1 & A2. The statement of PW16 is recorded on 11.04.2000 belatedly after the death of Sinija, therefore, the evidence of PW. 16, is doubtful to be believed.
(f) PW18 (husband of deceased Nagarathna) and PW27 (H.R. Manager of the management) have deposed to the effect that Nagarathna made oral dying declaration on 25.03.1999 when she was in Victoria hospital implicating all the 8 accused named in the complaint Ex. P.81. The statement of PW.18 is recorded belatedly at the time of inquest, which is after the death of Nagarathna to implicate the accused named in the complaint. PW.27 also implicates the accused named in the complaint at the time when his statement was recorded at the time of inquest. The statement of PW27 was earlier recorded on 01.04.1999 and in the said statement PW27 does not refer to oral dying declaration of Negarathna.
(g) PW42 (Complainant) was taken to Bowring hospital at 8.15 pm and he was in the company of PW27 at that time. PW42 at 8.45 pm, two pages typed complaint before the Ashok Nagar Police. PW42 had virtually no time to prepare the complaint at 8.45 p.m. This circumstance would show that complaint at Ex. P1 is not typed at the narration of PW42, but it is prepared at the behest of the management to falsely implicate the accused.
(h) PW27 Human Resources Manager of the BPL says that except A6 to A15 & A33, he does not know other accused and he had not seen them any time earlier to the incident The said evidence suggests that the management indiscriminately and falsely implicated the leaders and active workers of the union. Ex. D.38 (complaint lodged before Madiwala Police) on 19.11.1998 and Ex. D.39 (complaint lodged before Hebbagodi police) on 19.11.1998 by the BPL management does not mention the participation of the accused other than A6, A15 & A33.
(i) The evidence of the injured and the eye witnesses disclose that it was totally a pell-mell atmosphere, not possible for any of the eye witnesses including the injured eye witness to have seen the assailants at the time of incident All the eye witnesses who have deposed against the accused are still in the employment of BPL management. Therefore, at the behest of the management, the witnesses have falsely indicted and identified the accused before the Court as the assailants and members of the unlawful assembly.
(j) In the complaint at Ex. P81, A1, A2, A6, A15, A32, A33, A46 and A47 are alone identified and named. There is no specific mention of names of ether accused. It is only in the later stags of investigation all the innocent union activists have been falsely implicated at the instance of BPL management The charge sheet only mentions the presence and participation of 49 accused persons. In the complaint, there is only specific mention of the names of the 8 accused persons. The evidence of the eye witnesses including the injured witnesses, A3, A4, A6, A8 to A10, A14, A16, A17, A24 and A34 are alone named as members of the unlawful assembly at the time of the incident apart from the convicted accused. FIR and the evidence of the eye witnesses, does not mention the presence and participation of other accused.
(k) It is argued in the alternative that the object of unlawful assembly, which is apparent from the case of the prosecution, was only to physically harm the inmates of the bus so as to prevent them from attending to work. It is not the object of the assembly to cause the Murder of any of the inmates. A32 brought kerosene and gave it to A31 and A33 and instigated them to set fire. The conduct of A15, A31 and A32 should be judged distinctly and separately and their conduct in setting fire should not be construed as the common object of the assembly. Therefore, the Trial Court was in total error in holding that the accused other than A15, A32 and A33 are guilty of the offence punishable u/s 302 IPC read with Section 149.
(l) The Medical Evidence shows that the death of Sinija and Nagarathna takes place substantially after couple of days and both of them succumbed to the Septicemia and infection. The death is not caused directly on account of burn injuries, but on account of intervening cause. Hence, conviction of A15, A32 and A33 for the offence u/s 302 is bad in law and that at the most the said accused could be convicted only u/s 304 part II IPC.
(m) It is further argued that the victims of non-fatal burning injuries have sustained only simple injuries. Therefore, the conviction of accused u/s 307 IPC is bad in law and that the accused are only liable for conviction u/s 324 IPC for causing burn injuries of simple nature.
The learned Addl. SPP, N. Rudramuni per contra, argued that the dying declaration of Sinija and Nagarathna are credible piece of evidence. The eye witness-cum-injured witness, PW1 to PW15 clearty identify and implicate the convicted accused -A3, A4, A6, A8 to A10, A14, A16, A21, A24, A31 and A34. The dying declaration of Sinija and Nagarathna also implicate the convicted accused and all the accused are named by the witnesses in evidence are proved to be guilty apart from the convicted accused. SPP further argued that the acts of accused in setting fire to a bus was with an intention to do away the lives of the inmates and to cause grievous injuries to them which is a diabolical design and falls within the category of rarest of rare case. Hence argued that the convicted accused are liable for death penalty and that the order of acquittal in respect of A14, A16, A17, A21, A24, is to be set aside and they should be convicted and similarly sentenced.
The earliest document that is complaint at Ex. P.81 lodged by PW42, disclose that A1 and A2 shouted slogans in favour of union and at their instigation, the unlawful assembly ambushed the bus, A46 who stood near the door of the bus along with the other accused started pelting stones. The bus driver (PW20) was hit by the stones. A15 and A33 poured kerosene on the inmates of the bus, A33 set the fire, A32 assaulted PW42 with the club, A6 and A47 pelted stones, A46 and A47 assaulted the inmates with stones and clubs. The complaint mentions overt acts of A1, A2, A6, A15, A32, A33, A46 and A47.
The evidence of PW1 (Latha Maheshwari) disclose that A1, A2, A25, A32 and A46 were shouting slogans in favour of union and shouted not to spare the inmates and finish off all of them so that they shall not go to work and started pelting stones. A32 brought two plastic cans and gave one to A33 and another to A15. A32 has poured kerosene on the bus and on the inmates. A33 set fire. A32 and A46 assaulted PW42 with clubs. A39 (absconding accused), A3, A5, A17, A21 and A49 pelted stones. The evidence of PW1 shows that A1, A2, A3, A15, A17, A21, A25, A32, A36 and A46 assaulted the inmates of the bus. PW1 identified A1, A2, A3, A15, A17, A21, A25, A32, A33 and A46 at the time of the evidence. PW1 however at the time of admission at the St. John Hospital and D.G. Hospital, states that some miscreants set the fire to the bus.
P.W.2 (Nalini) states that A1, A2, A15, A25 and A33 were shouting slogans in favour of the Union. A6, A36 (absconding), A46 assaulted with clubs. A32 brought kerosene and gave it to A15, A33 and A15. A33 and A15 poured the kerosene. PW2 identifies A1, A2, A6, A15, A30 and A46 in the Court as the members of the unlawful assembly and speak about their overt acts. A18 is wrongly identified as A32. A32 is identified, but no overt acts are attributed in the evidence. PW2 earliest token to Victoria Hospital at the time of admission, she gives history as bum injuries caused at 6.30 pm.
PW3 (Devaki, injured eye witness, states that A1 and A2 were shouting slogans. A25 and A32 pelted stones. A32 brought two cans of kerosene and gave it to A15 and A33. They poured kerosene and A33 lit the fire. A32 and A46 assaulted inmates with clubs and assaulted PW42 and caused fracture to his right hand. A8, A9, A14, A24 and A37 set to have pelted stones. PW3 identifies and speaks about their participation and overt acts of A1, A2, A14, A15, A24, A25, A32 and A33. PW3 wrongly identifies A43 as A8 in the Court. PW3 earliest treated in the Victoria Hospital The history of the burns is recorded as noted in page 154 relating to admission of Nagarathna.
PW4 (Ruby), injured eye witness, states that A1, A2, A15, A25 and A32 were shouting slogans and pelted stones at the bus. A32 along with 2 persons were assaulted with clubs. A9, A10 and A14 were pelting stones. PW4 identifies and states the participation and overt acts of A1, A2, A9, A10, A14, A15, A25 and A32. PW4 earliest was admitted to Victoria Hospital. In the admission registrar, the history of the injuries are recorded as one noted at page No. 154 pertaining to the admission of deceased Nagarathna.
PW5 (Chandrakala) injured eye witness, in her evidence states that, A1, A2, A15 and A32 were shouting slogans in favour of Union and pelted stones at the bus. A32 brought kerosene and gave it to A15 and A33 and they poured the kerosene on the inmates of the bus. A32 assaulted inmates with clubs when they are getting down from the bus. A16, A25, A27, A34 and A49 pelted stones. PW5 identifies and speaks about the participation and overt acts of A15 and A33. PW5 wrongly identifies A29 as A25 at the time of evidence. PW5 at the earliest treated at Victoria Hospital and also at D.G. Hospital. PW5 gives history of the burn injury. The MLC register mentions that history is as given in page No. 154 pertaining to admission of Nagarathna.
PW6 (Kavitha), inmate of the bus, who has not sustained any injury, states that A1, A2 and A33 were shouting slogans in favour of the Union and pelted stones. A32 brought two plastic cans of kerosene and gave it to two persons and asked them to burn the inmates of the bus. A32 was wielding club and was not permitting the inmates to get down from the bus. PW6 identifies and speaks about the participation of A1, A2, A15 and A32.
PW7 (Vanajakshmma), inmate of the bus, eye witness to the incident, but not injured in the incident states that A32 brought two kerosene cans and gave it to two persons and instructed them to pour kerosene on the inmates of the bus and lit the fire. A32 and A46 assaulted the inmates of the bus with clubs from preventing them to get down from the bus. PW7 identifies and speaks about the participation and overt acts of A1, A2, A32 and A46.
PW8 (Anitha Satyabhama), inmate of the bus, who is an eye witness but not injured in the incident, states that, A1, A2 and A32 were shouting slogans. The said witness identifies A1, A2, A25 and A32 as participants and speak about their overt acts.
PW9 (Mathew Varghese), inmate of the bus, eye witness to the incident, but not injured in the incident stales that, A1, A2, A6, A25, A32 and A33 were shouting slogans and they were pelting stones. A32 brought kerosene cans and gave it to A15 and A33. A15 and A33 poured kerosene over the bus and they set fire. A6 and A46 were pelting stones. PW9 identifies and mentions about the participation and overt acts of A1, A2, A6, A15, A25, A32, A33 and A46.
PW10 (Mary Sudheendra) inmate of the bus, eyewitness to the incident but not injured in the incident, states that A1, A2 and A32 ambushed the bus and shouted slogans. The witness is treated as hostile. In the leading question put by PP, she apprehends that A32 gave kerosene to A15 and A32 and asked them to pour kerosene end set fire. She also states that A15 poured the kerosene on the employees and A33 poured the kerosene. She further states that, A6, A15, A25, A32 and A46 were in the unlawful assembly. PW10 identified A1, A2 and A32 in the Court
PW11 (Thanga Rabeca), injured eye witness, states that it was A1 and A2 were shouting slogans instigating others not to allow the inmates to get down from the bus. A15, A25, A32 and A46 prevented the inmates from getting down from the bus. A32 brought two kerosene cans and gave them to A15 and A33 who poured kerosene on the inmates of the bus and later the bus was set fire. PW11 identifies and speaks about the presence and overt acts of A1, A2, A15, A25, A32 and A46. PW 11 earliest admitted to Victoria hospital and she gives the history as burn injuries.
PW 12 - Lokanath, inmate of the bus and eye witness but not injured in the incident states that A1, A2, A15, A25, A32 and A33 were shouting slogans and pelted stones on the bus. A32 gave kerosene cans to A15 and A33 and asked them to burn the bus. A15 and A33 poured the kerosene and set fire. He further states that A32 was also pelting stones. PW12 identifies and speaks about the overt acts of A1, A2, A15, A25, A32 and A33. PW 12 earliest treated in St Johns Hospital In the history recorded in the MLC register, it is recorded that stones were thrown by some people.
PW 23 - Munivenkatareddy, inmate of the bus and eye witness but not injured in the incident, states that A25, A32 and A33 were shouting slogans and A4 and A 46 started pelting stones. A32 and two other persons by holding clubs, were preventing the inmates of the bus from getting down. A 32 brought two kerosene cans and gave it to A33 and A15 who poured kerosene on the bus and set to fire. PW 13 identifies and speak about the overt acts of A1, A2, A 4, A15, A32, A33, and A46. PW 13 unable to identify A25 in the Court.
PW 15 - K. Indumathi, injured eye witness states that A1, A2, A 25 and A32 were instigating others to pour kerosene and burn the inmates of the bus so that they shall not got to work in future. A32 brought kerosene can and gave it to A 15 and A33 and asked them to pour kerosene on the bus and set the fire. A46, A32 and A6 were assaulting those who were alighting from the bus with clubs. PW 15 identifies and speak about the presence and overt acts of A1, A2, A32, A25, A15, A33 and A46. PW 15 earliest treated at Victoria Hospital The history of injuries is shown as one noted in page 154 of the KLC Register, pertaining to admission of deceased - Nagarathna.
Ex. P. 29 is the dying declaration of the deceased - Sinija. In the dying declaration it is stated that A1, A2, A 25, A32, and A33 ambushed the bus, shouted slogans and pelted stones. A3, A 25 gave kerosene can to A 15 and A33 who poured kerosene on the employees and set fire. It is further stated that A6, A32 and A46 were assaulting the inmates of the bus with clubs and assaulted Security Guard who was standing near the door and sustained fracture to his hand. Deceased - Sinija was earliest taken to Victoria Hospital. In the MLC register, relating to the history of burn, it is recorded that the history as noted in page 154 pertaining to admission of deceased - Nagaratha, Ex.P29 is recorded by the I.O. on 2.4.1999 in the D.G. Hospital. PW 33- Dr. Rajagopal has made an endorsement on the statement to the effect that the statement is recorded in his presence by the I.O.
Ex. P30 is the dying declaration of Smt Nagarathna. In the dying declaration, it is stated that A1, A2, A15, A25 and A32 were shouting slogans, surrounded the bus and on their instigation, 50-60 persons pelted stones at the bus. A1 and A2 were instigating to finish of the inmates of the bus so that they shall not go to factory work in future. A32 brought two kerosene cans and gave them to A15 and A33 and asked them to pour the same on the bus and on the employees and to burn. A15 and A33 poured the kerosene and A33 lit fire with match stick. It is further stated that A36 and A 46 were assaulting the inmates with clubs and were preventing them from getting down the bus. A4, A8, A16 and A34 were pelting stones. The deceased - Nagarathna, earliest, taken to Victoria Hospital In the MLC register, the history is recorded as ''burnt due to unknown people (BPL Worker) on 25.3.99 at 6.30 pm in Annepalya tollgate. Burn the BPL worker bus brought by Hoysala. At the top of page of 155 of the MLC register it is written as ''informant Kodanda Ram (Husband).
The Counsel for the accused with reference to Ex. D25(a) argued that the deceased Nagarathna at the time of admission, has stated that the bus was burnt by unknown people, she does not mention the names of any of the accused. But in the statement recorded by the police, which later on become dying declaration, she has named A1, A2, A4, A6, AS, A15, A16, A25, A32, A33 and A46 as the participants with specific overt acts. In the admission registrar of D.G. Hospital, deceased Nagarathna does not specifically mentions the name of any of the accused. She says that "white she was travelling in BPL bus at 6 pm on 25.3.99 near MICO, some miscreants from BPL stopped the bus, poured the kerosene and lit fire to bus causing burnt injuries to the inmates of the bus. The statement of the deceased Nagarathna is recorded on 20.4.99 at 12 noon to 1pm. The physical condition of Nagarathna as on 20.4.99, as recorded in the case sheet marked at Ex. D12 reads as follows:
20.4.99
7.00 am
Patient did not sleep in the night C/o pain, difficulty in breathing Temp 100� F
HR: 130/min SPo2: 100% RR: 40/min I/O:4450/2950 RS: BilclepteoccCwp: 14cm H2O
Tab Zanocin 200mg 1-0-1
Lactobacillus 1-1-1
InjVancomycin 1gm
Tab Eptocin 200mg Hs
Cap Lanz 15mg 1-0-1
Inj Mol 1 amp sos
Cap Liv-52 2-2-2
Nebulisation - 6thhrly
7.10 am
Informed the conditions to Dr. Jayaprakash
InjPethidine 75 mg tidIm
InjLasix 4 amp stat
7.30 am
Informed the condition to Dr. B.G. Tilak
Dr. Ranganath - Chest Physician to opine
Chest X Ray - AP
7.40 am
Dr. Ranganath - Chest Physician informed will see the patient now
Tachrpholix - well oriented - Febute - O2 gas 98%
ictenie
No wheezs or creps or sign of fluid or Ollapse
Last mgnis C X R - Appear Cardiac enlargement
(due to insufficient respiration �
No oligramia)
8.30 am
S/B Dr. B.G. Tilak and Dr. Ranganath
STOP - Zanocin
InjNitilmycinod 200 mg
ABG after
Dr. Srinivas Murthy
Chest X-Ray
InfluidsIsolyte M 2 bottle till after noon with M.V. 1 amp in one of them
1 bottle blood in the evening (with 1 amp lasix)
with hold lasix till blood transfusion
Inj Mol 1 amp tid
If the patient becomes distressed
SPo2 6O2 with 4 -6 Its O2 then infrom and inhiba....
SERENACE 2.5 mg IM stat
Imp Suggest
due to Sepsio
As indicated above
+ ABG
If Sne fails to maintain Sar as 4 lits of O2 - May heal Inhibition
If respiratory rise goes beyond 60 and begins to show sign of fatigue - Ventilation.
9.30 am
Case S/B
Dr. Srinivas Murthy
Dr. B.G. Tilak
Dr. Jayaprakash
Dr. Ranganath
C/o difficulty in
Breathing for the
Past 24 hours
O/e RR 42/M
Tebnle
Pulse
C.V.P.:11cms of H2O
ABG: PH : 7.46
Pco2: 18.6
PO2: 87.4
SPo2:97%
BE: -11
On room air
To monitor RR hourly
if the RR is > 50
needs electronic ventilation O2 4 litres nasal probe
if insufficient with mask
8 litres
Injnitilmycin 200 mg od
I.V. fluids - 2 bottle Isolyte-M
InjSerenace 2.5 mg I.M. stat
1 bottle blood in the evening with 1 amp lasix
Tab Eptom 200 mg HS
Cap Liv-52 2-2-2
Cap Lanz 15mg 1-0-1
Inj Mol 1 amp sos
Lactobacillus 1-1-1
InjVancomycin 1gm 1-0-1 Nebulisation - 6thhrly
12.30 pm
S/B
Dr. Srinivas Murthy
Patient as same: alert
RR 46/mt
PR 135/mt, reg
SP2 99% (room air)
Above:- Prop up position
2 2-4 ctm nasal probe
(sos 8-12 mask)
only clear fluids If K+ normal, give Fruit juice Inform physician regarding Elatytes
4.00 pm
Patient G/C same do difficulty in breathing patient restless
O/e: H Rate - 132 b/min
R Rate - 50 cycles/min
SPo2 - 100%
Cus
NAN
P/A
8.45 pm
G/C same
C/o breathing difficult
HR - 135/min
RR--50/m
SPo2- 100 with O2
RS - crepte + +
S/B Dr. B.G. Tilak
Adv
CST
Efcanlin 100 mg stat
Cus
NAN
P/A
21.4.99
G/C Stating opinion
Adv-CST
At the outset the contention that the veracity of Ex. P30 (dying declaration) gets dented because of the contradictory version in Ex. D25(a) (history recorded at Victoria Hospital and at Ex. D9 (history recorded at D.G. Hospital) does not appear to be tenable argument In the first blush, the history of the incident recorded at Ex. D25(a) shows that burn injury due to unknown people. But on close scrutiny of Ex. D25(a) shows that the history was not furnished by Nagarathna but it was furnished by her husband who is not a eye witness to the incident That apart mentioning the name of the culprits at the time of admission to the hospital is not a legal formality. There is no legal duty upon the doctor to collect all the details of the crime and names of the culprits while admitting the patient for treatment It is only suffice to mention cryptic history of the crime to serve the immediate limited purpose to show that it is a Medico Legal Case. In the event if the culprits are named by the victim while giving the history to the doctor and the doctor has so recorded the names in the history column and the names so stated in the history column are contradictory and inconsistent, then the defence can take advantage of such discrepancy. The non-mention of names of culprits in the MLC register is not fatal to the case of the prosecution. In fact the entries in the MLC register of Victoria Hospital are not made as per the information given by the decease Nagarathna but the entries in the history column are made as per the say of her husband. Therefore the entries in the MLC register cannot be considered as a discrepancy contradicting the dying declaration.
The case sheet in respect of the deceased Nagarathna discloses that on 20.04.1999 there was exhaustion but nonetheless her condition was stable. The duty doctor of D.G. hospital (PW.33) also testified to the effect that the statement of the deceased Nagarathna was recorded in his presence and his evidence discloses that the deceased Nagarathna was conscious, well oriented and she was in a position to give statement and her statement was recorded by the Investigation Officer in his presence. The evidence of Dr. Manjunath (PW.31) who conducted the Post Mortem examination over the dead body, with reference to the case sheet has opined that Nagarathna could not have been able to give her statement on 20.04.1999 and his opinion is only on the basis of surmise. On the other hand, the evidence of doctor Thilak (PW.33) categorically discloses that deceased Nagarathna gave a voluntary statement in his presence. In the case sheet it is observed that if there is any serious respiratory disorder beyond 60% burns, the patient was advised to be put on ventilator. However from the evidence of the doctor it is seen that as on 20.04.1999 there was no serious respiratory disorder warranting the victim Nagarathna to be kept on ventilator. On thorough consideration of the evidence of PW33, the attending circumstances and the dying declaration given by the deceased at Ex. P.33, we find that the dying declaration of deceased Nagarathna marked at Ex. P.33 is a credible piece of evidence to prove the guilt of the accused named therein.
With regard to dying declaration of deceased Sinija, of course, it is a fact that in the remand application dated 09.04.1999 there is no mention of recording of dying declaration of Sinija on 02.04.1999. The Investigation Officer (PW.56) also in his cross-examination admits that condition of one of the victims was serious and she was not in a position to give statement It is of course in the probity of the investigation, it is necessary that when the accused are in custody, the IO has to faithfully and sincerely mention in the remand application the details of the investigation and the evidence so far collected while seeking further remand the said requirement is insisted in law in order to obviate suspicion or concoction of material by predating the documents. This legal requirement is almost honoured in breach in almost all the investigations and it is common place that the remand applications are written in a causal and a stereo type manner by lower rung officials. In the present day order most of the police officers who conduct investigations are ill-equipped in the techniques of investigation and are ignorant of the propositions of law laid down by High Court and the Supreme Court We do find that in many of the cases the police officers are severely criticized by the High Court and the Supreme Court for the bad investigations. In the context of the present day order, the fact that the remand application does not mention the recording of dying declaration of Sinija cannot be viewed seriously as an adverse circumstance. It is to be noticed that the doctor PW33 who is an independent witness has categorically testified before the Court that the Investigation Officer recorded the statement of Sinija in his presence. There is nothing in the evidence of PW33 to suspect his veracity with regard to recording dying declaration of Sinija. Therefore, we are of the opinion that the dying declaration of Sinija recorded at Ex. P.29 is also a credible version placed by the prosecution to prove the guilt of the accused.
The version of the prosecution with regard to the oral dying declaration of Sinija made before PW.16 and oral dying declaration of Nagarathna made before PW18 & PW27 appears to be doubtful version, as pointed by the kerned Counsel for the accused because the statements of PW16, PW18 & PW27 has been recorded belatedly, after the death of Sinija & Nagarathna. However, even if the evidence of PW16, PW18 and PW27 is excluded, the prosecution has successfully established the theory of dying declaration of Sinija at Ex. P29 and Nagaratha at Ex. P.30.
The contention that the complaint at Ex. P.81 is the manipulation at the instance of BPL management does not appears to be a convincing argument The complaint at Ex. P.81 is two-paged typed document and may be that after treatment within half an hour, Ex. P.81 is registered by Ashok Nagar Police station. The discrepancy if any in timing of registration is not of serious nature. It is immediately after treatment, PW42 (the security guard) who was guarding the bus goes and lodged a written complaint before the Ashok Nagar Police station. It is also not unlawful or illegal if somebody assists the complaint in getting the complaint prepared, so long as the complaint does not contain false averments or false allegations. The oral evidence of the injured witnesses testified as PW1 to PW15 who have substantially testified to the participation and the role played by each of the convicted accused. Further, it is to be seen that the evidence of PW1 to PW15 has sufficient inter be corroboration. The oral evidence coupled with the medical evidence i.e., the dying declaration chinchingly establishes the participation and the role played by each of the convicted accused. The prosecution, by the above oral and documentary evidence has substantially proved the guilt of the convicted accused.
Crl.A. No. 189/2004:
The State, in this appeal, has assailed the Judgment of acquittal of 37 accused passed by the trial Court As observed above, on thorough scrutiny of the evidence on record particularly from the averments made in the dying declaration of deceased Nagarathna, we find that deceased Nagarathna clearly indicts A-4, A-6, A-8, A-16 & A-34 for the commission of offence. PW.13 deposes to the effect about the presence and participation of A-4. The dying declarations of Nagarathna & Sinija at Ex. P.29 & 30 and the evidence of PW2, PW9 & PW14 clearly indicts the presence and participation of A-6 in the incident The FIR Ex. P.81 also makes allegations against A-6 about his presence and participation in the incident Even though in the complaint there is no mention of names of A-4, A-8, A-16 & A-34, it is to be noted that in a mob violence, it is not possible for every witness to observe the overt acts of all the accused persons and to the extent they have noticed, they have given evidence and identified the accused persons at the time of evidence.
In the present case, it is to be noted that there is no interaction between deceased Sinija and Nagarathna and the complainant PW.42 after the incident and before lodging the complaint by PW.42. The deceased Sinija and Nagarathna were undergoing treatment at D.G. hospital at the time when complaint was lodged by PW.42 and there is nothing on record to show that Sinija and Nagarathna were tutored to make false implication when their statements are recorded. Therefore, we do not find any reason to reject the version of Sinija and Nagarathna in Ex. P.29 & P.30 (dying declarations) regarding presence, participation and role played by A-4, A-6, A-8, A-16 & A-34. In view of the above clinching evidence adduced by the prosecution, the Judgment of acquittal passed by the Court below acquitting the A-4, A6, A8, A16 and A-34 is not proper and the same is liable to be set aside. However, with regard to the acquittal of the other accused, although some of the eye-witnesses have spoken to that effect, there is no inter se corroborative evidence regarding their participation and role played by them in the incident. In that view of the matter, the order of acquittal recorded by the trial Court in so far as the accused other than A4, A6, A8, A16 and A34 is liable to be confirmed.
Sri Tomy Sebastian, learned Senior Counsel for the convicted accused submits that the object of unlawful assembly was only to cause hurt to the inmates of the bus and there was no intention on the part of the accused to commit murder of any of the inmates of the bus. This submission of the learned Counsel does not appears to be tenable. The evidence of the prosecution witnesses discloses that there was huge mob of about 60 persons shouting slogans, wielding stones, clubs in their hands and they ambush the bus, from amongst the said mob, A-32 brings two cans of kerosene and gives to A-15 and A-33. This fact clearly suggests that the members of the unlawful assembly had come prepared and poured kerosene to torch the bus and obstructed the inmates from getting down from the bus. These facts and evidence clearly suggests an inference that each one of the member of the unlawful assembly had knowledge of the acts done and knowledge of the likely hood of the acts committed as envisaged u/s 149 IPC. In that view of the matter, the argument that the overt acts of A-15, A-32 & A-33 should be viewed separately cannot be accepted.
The next contention of the counsel that the death of Nagarathna and Sinija is not directly on account of burn injuries sustained but it is on account of intervening cause of septicemia and therefore, the accused are guilty of offence u/s 304-II and not u/s 302 IPC also not a tenable argument. The relevant provisions of Section-300 are extracted here under for convenient reference:
Section-300: Murder: Except in the case hereinafter excepted, culpable homicide is murder, if the act by which death is caused is done with the intention of causing death.
In the instant case, the members of unlawful assembly restrained the inmates of the bus from getting down and indiscriminately pelted stones and torched the bus after dousing with kerosene. In the given circumstances, the 1st category of Section-300 attracts the facts of the case, although, the death has occurred on account of septicemia as a result of burn injuries. It is clearly established by the evidence that all the members of unlawful assembly shouting slogans Chat the inmates of the bus should be finished so that they should not go to work in future. This evidence clearly establishes that the object of the assembly was to kill the inmates. The causing of death u/s 304 part II IPC takes place only when the act is done with out intention to cause death and without intention to cause an injury which is likely to cause death in the ordinary course but done with the knowledge of causing death. In the present case, the accused who are found guilty in this appeal have all intentionally caused the death of some of the inmates of the bus by indulging in torching the bus and causing burn injuries to the inmates. In that view of the matter, the facts and evidence warrants that the accused who are found guilty are liable for conviction u/s 302 read with 149 IPC.
In so far as the injured victims are concerned, they have received non-fatal injuries. Nonetheless, it is in fact intention of the members of the unlawful assembly to kill them all. Therefore, conviction of an accused of having committed offence u/s 307 read with 149 IPC is sound and proper.
For the foregoing reasons, we hold that the Judgment and conviction passed by the Court below, convicting the accused Nos. 1, 2, 15, 25, 32, 33 & 46 of having committed the offences u/s 143, 148, 307, 302, 435, 427 read with 149 IPC is liable to be confirmed. The accused Nos. 4, 6, 8, 16 & 34 are also liable to be convicted for having committed the offences u/s 143, 148, 307, 302, 435, 427 read with 149 IPC.
Crl.A. No: 188/2004:
The State, in this appeal, seeking enhancement of sentence in respect of the convicted accused for imposition of death sentence. Learned Addl. SPP., argued for death sentence to the accused who are also found guilty in this appeal. On thorough consideration of the material on record and the facts and circumstances, we find that although the acts of the accused is dastardly act, nonetheless, the heinous acts are committed in the background of ruptured trade union relationship. It is further to be noted that deceased Sinija and Nagarathna has sustained lesser percentage of burn injuries and died after a long gap of time. In that view of the matter, we feel that imposition of death sentence is not warranted. Therefore, the sentence imposed by the trial Court upon the A-1, A-2, A-15, A-25, A-32, A-33 & A-46 of having committed the offences u/s 143, 148, 307, 302, 435, 427 read with 149 IPC is liable to be confirmed. Similarly, A-4, A-6, A-8, A16, & A34 who have been convicted in this appeal for offence u/s 143 are imposed similar sentence of life imprisonment and other sentences imposed on the convicted accused by the trial Court Accordingly, we pass the following order.
ORDER
Crl.A. 1624/2003 filed by the convicted accused is dismissed. The judgment of conviction and order of sentence passed by the trial Court, convicting the A-1 (R. Srinivas), A-2 (T.K.S. Kutti), A-15 (N.V. Ravi @ Ravinanda Kumar, A-25 (R. Ramesh), A-32 Dharaneshkumar), A-33 (S. Jagadish) & A-46 (Sharathkumar) of having committed the offences u/s 143, 148, 307, 302, 435, 427 read with 149 IPC is confirmed. Crl.A. No. 188/2004 filed by the State seeking imposition of death sentence upon A-1, A-2, A-15, A-25, A-32, A-33 At A-46 is dismissed.
Crl. A. No. 189/2004 filed by the State, challenging the judgment of acquittal of other 37 accused is allowed in part A-4 (C Magesh), A-6 (P.A. Bharath Kumar), A-8 (Edwin Noyal), A-16 (S. Babu), & A-34 (Nagaraj) who have been arrayed as Respondents-2, 4, 6, 13 & 28 are convicted for committing offences u/s 143, 148, 307, 302, 435, 427 read with 149 IPC and they are sentenced to undergo rigorous imprisonment for a period of 3 months for an offence u/s 148 read with 149 IPC and to pay a fine of Rs. 5,000/-. R.I. for 8 years and to pay fine of Rs. 15,000/- for an offence u/s 307 read with 149 IPC, I.D, to undergo R.I. for 3 months. Rigorous imprisonment for life for an offence u/s 302 read with 149 IPC. R.I for 4 years for an offence u/s 435 read with 149 IPC and to pay fine of Rs. 15,000/- ID, to undergo R.I. for 3 months. To undergo R.I. for 3 months and to pay fine of Rs. 5,000/-, I.D, to undergo R.I. for one month for an offence u/s 427 read with 149 IPC. All the aforesaid sentences shall run concurrently.
The bail of the accused is cancelled and the trial Court is directed to secure the presence of the convicted accused and remand them for serving the sentence. The period of detention of accused during trial if any shall be given set off as provided u/s 428 Cr.P.C.