1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1198 OF 2006
Menoka Malik and others ..Appellants
Versus
The State of West Bengal and others ..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. The instant appeal arises out of the judgment and order
dated 30th June, 2004 passed in C.R.R. No. 765 of 2002 by the
High Court of Judicature at Calcutta confirming the judgment of
acquittal passed by the Sessions Judge at Burdwan dated 15th
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December, 2001 in Sessions Case No. 91/1998 (Sessions Trial
No. 10(7)/2000).
2. The case of the prosecution in brief is that on 30.05.1993,
panchayat elections were held in Karanda village, wherein the
CPI(M) party won and the IPF party lost. On the next day, i.e. on
31.05.1993, at about 8:30 a.m., 15 to 16 members of the IPF
party took shelter in the house of PW2, Badal Malik, their party
leader, upon being chased by some CPI(M) workers. At around
1:30 p.m., Bhanu Hathi, Kachi Hathi and Bhaluk Hathi (accused
no.56/respondent no.57 herein) started to abuse PW3, Shyamali
Pakrey, the wife of PW30, Sunil Pakrey, an IPF supporter, upon
whose protest, the CPI(M) persons mobilised around 250300
party workers, all being armed with weapons such as lathi,
balam, tangi etc. It is further the case of the prosecution that the
persons belonging to CPI(M) party set on fire the houses of IPF
members, including the party leader Badal Malik, assaulted IPF
members and broke into the houses of the locality and destroyed
household articles, apart from stealing an amount of Rs.700/
and snatching a pair of gold earrings. In the assault on IPF
members, five persons expired and 24 persons were seriously
injured.
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3. The first information came to be lodged by Menoka Malik
(PW1/appellant no.1 herein) before Memari Police Station,
Burdwan District, which came to be registered in Case No.
82/1993 dated 31.05.1993 for the offences punishable under
Sections 147, 148, 149, 342, 448, 325, 326, 436, 379, 307 and
302 of the Indian Penal Code.
4. Charges were framed for the aforementioned offences. As
many as 82 accused were tried. 49 witnesses were examined by
the prosecution, which included 36 eye witnesses, i.e. PWs 123,
29, 30, 31, 33, 34, 35, 39, 40, 42, 43, 44, 45 and 47. Out of
these, the testimonies of PWs 17 and 18 ran counter to the
prosecution’s case, and PW42 claimed to not recollect the
incident on account of mental sickness.
5. The trial Court, at the outset, determined that there were
cogent allegations only against 32 persons out of the 82 accused
and proceeded to examine the evidence against those 32 persons
only. On evaluation of the material on record, the trial Court
acquitted all the accused by giving them the benefit of doubt. It
was observed by the trial Court that the prosecution sought to
establish the death of five persons through the use of sharp and
pointed weapons, but such factum was not alleged in the first
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information report and only the factum of assault leading to the
death of two persons was reported; the names of the assailants
had not been disclosed in the first information report; several
witnesses were found to have admitted to have made disclosures
of allegations for the first time before the Court at the time of
recording their depositions; the evidence of the investigating
officer disclosed a number of contradictions in the evidence of eye
witnesses; there was nonrecovery of burnt articles, etc. It was
also observed by the trial Court that the medical evidence was
contrary to the ocular testimony of the witnesses, inasmuch as
the post mortem reports of the deceased and medical reports of
the injured showed the absence of incised or punctured wounds,
wherein the prosecution witnesses had stated that the deceased
and injured had been assaulted with sharp weapons such as
tangi, ballam, kencha, etc. The injuries found on the deceased as
well as on the injured persons were in the nature of bruises,
abrasions and lacerations, which, according to the trial Court,
might have been suffered due to a stampede. On these, among
other grounds, the trial Court acquitted the accused.
6. The State did not prefer any appeal against the judgment
and order of acquittal passed by the trial Court. However, the
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first informant along with three others filed a revision petition
under Section 401 of the Code of Criminal Procedure before the
High Court. During the course of hearing of the revision petition,
it was submitted on behalf of the revision petitioners that no case
is made out against 48 of the 82 accused, and that the revision
petition would be concerned only with rest of the 34 accused. It
may be noted at this juncture that in the course of arguments
before us, it was brought to our notice that 6 out of these 34
accused are now dead.
7. The High Court found that there was no perversity or gross
procedural defect or error of law leading to glaring injustice, to
warrant interference with the decision of the trial Court. Though
a number of contentions were raised by the revision petitioners
before the High Court, the High Court proceeded to decide the
revision petition merely on the basis of the above finding. The
only other finding was that the nondetermination of the issue of
unlawful assembly by the trial Court in the manner suggested by
the appellants was not a sufficient reason to remand the case.
This was based on the reasoning that a direction for reappraisal
of evidence would create an unconscious impression in the mind
of the trial judge that the High Court wished the lower court to
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reach a particular conclusion, and would also complicate the
issue in the given situation, where a large number of persons
were involved but no evidence existed against most of them. The
High Court further proceeded to observe that the trial Court had
reached a finding of acquittal upon a consideration of the
probative value of the evidence on record, in accordance with set
canons of law, and upon a meticulous examination of the same.
Certain general observations relating to the revisional powers of
the High Court were adverted to by the High Court, while coming
to its conclusion. Practically, the High Court has not touched the
case of the prosecution on merits, at least prima facie, to find out
as to whether the trial Court’s reasoning is just and proper or
not.
Preliminary Issue:
8. We have heard learned counsel on either side. Before
proceeding further, we would like to decide the preliminary
question that arose during the course of arguments regarding the
scope of interference by this Court with a judgment of the High
Court in exercise of its revisional power, affirming a conviction.
The question is no more res integra, inasmuch as this Court in
the case of Dharma vs. Nirmal Singh, (1996) 7 SCC 471 has held
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that the bar under Section 401(3) does not restrict the power of
the Supreme Court under Article 136 of the Constitution. While
concluding so, the following observations were made:
“4. Before we record our reading of the evidence
produced in the case, let a legal submission
advanced by Shri Lalit, appearing for the respondentaccused,
be dealt with. His submission is that as the
complainant had approached the High Court in
revision and as under the revisional power available
to the High Court under Section 401 CrPC, the High
Court could not have altered the finding of acquittal
into one of conviction, because of what has been
stated in subsection (3) thereof, if we were to be
satisfied that the acquittal was wrongful, it would not
be within our competence to convict the respondent;
at best the case could be sent back for retrial. We are
not impressed with this submission inasmuch as the
approach to this Court being under Article 136 of the
Constitution. We do not read the limitation imposed
by Section 401(3) of the Code qua the power available
to us under the aforesaid provision. May it be pointed
out that a similar submission had been advanced by
Shri Lalit himself in the case of E.K.
Chandrasenan v. State of Kerala [(1995) 2 SCC 99 :
1995 SCC (Cri) 329 : JT (1995) 1 SC 496] , then
contending that this Court is incompetent to issue
rule of enhancement as had been done in those
cases. It was held in the aforesaid decision that the
power available to this Court under Article 136 is not
circumscribed by any limitation. In any case, power
under Article 142 is available to pass such order as
may be deemed appropriate to do complete justice.
We, therefore, reject this contention of Shri Lalit and
proceed to examine the materials to find out whether
case of conviction does exist, as the contention of the
appellant.”
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9. In the case of State of Rajasthan vs. Islam, (2011) 6 SCC
343, this Court relying upon the earlier judgment in Dharma’s
case, held that if this Court is of the opinion that the acquittal is
not based on a reasonable view, then it may review the entire
material and there will be no limitation on this Court’s
jurisdiction under Article 136 of the Constitution to come to a
just conclusion quashing the acquittal.
10. From the aforementioned decisions, it is amply clear that it
is open for this Court to review the entire material and there is no
limitation on this Court’s jurisdiction under Article 136 to come
to a just conclusion if it determines that the High Court’s view
was not reasonable. The restriction as contained under Section
401(3) of the Cr.P.C. on the High Court cannot restrict the
powers of this Court under Article 136 of the Constitution. Thus,
it is for us to determine whether the view taken by the High
Court was reasonable or not based on available records.
Main Issue:
11. The trial Court, while coming to its conclusion, has
observed that several eye witnesses had revealed the material
facts before the trial Court for the first time, inasmuch as such
statements of the witnesses before the Court are material
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improvements; such statements were not made by the witnesses
during the course of investigation before the police officials and
omissions are proved as per law.
However, we have endeavoured to satisfy our conscience
regarding the consistency/inconsistency of the eyewitness
accounts. To that end, we have gone through the testimonies of
the PWs. As we do not wish to burden this judgment by
discussing the testimonies of all PWs, we would like to revisit, as
examples, the testimonies of PWs 5, 7 and 14. Moreover, we are
mindful of the principle that in cases of this nature involving a
large number of offenders and a large number of victims, the
evidence of only two or three witnesses who give a consistent
account of the incident is sufficient to sustain conviction, as was
observed by this Court in the case of Masalti vs. State of U.P., AIR
1965 SC 202.
PW5, Anna Pakrey, deposed that on the day of the incident,
some IPF workers took shelter in the house of PW2, Badal Malik
on being threatened by some CPI(M) workers. After some time,
around 200250 CPI(M) workers, including Harigopal Goswami
(A80/R81 herein), Ram Tah (A68/R69 herein) and Satya
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Chakroborty (A71/R72 herein) assembled around the house,
hurling abuses at the persons inside. The CPI(M) workers asked
Bhanu Hati (chargesheeted as accused, since deceased) to set the
house on fire, upon which the hiding people rushed out and took
shelter in the house of PW9, Mantu Mal, which was set on fire by
one Kachi Hati (a reference to Kartik Hazra, A28/R29 herein).
Thereafter, the IPF workers started running from room to room.
Dilip Pakrey (deceased), PW5’s husband, came out of the house,
at which point he was assaulted by Jiten Kora (A1/R2 herein),
Kena Kora (A7/R8 herein), Bhola Mukherjee (A77/R78
herein), and Sitaram Makar (A70/R71 herein), with deadly
weapons such as tangi, bogi, and kencha. Pranab Bouri (A40/R41
herein), struck Dilip Pakrey with a ballam. Sakti Gadi (A15/R16
herein) passed urine in his mouth. At this point, PW5
fainted. After she regained consciousness, she went around
looking for her children and got assaulted by Radhi Kora (A8/R9
herein) with a shavol and by one Santana Majhi (a reference to
Sanatan Mandi, A44/R45 herein) by a bamboo lathi. PW5
further stated that Manik Hazra (deceased) was assaulted by
Sudeb Hati (a reference to Sudeb Hazra, A30/R31 herein), and
that one Rajib Kora cut off Manik Hazra’s penis.
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PW7, Nemai Hazra is an injured witness. He deposed that
on the day of the incident, on being threatened by CPI(M)
workers, he, his elder brother Manik Hazra (deceased), PW10,
Uttam Hazra, PW33, Uday Hazra, one Madan Hazra (referring to
PW43, Madau Hazra) and Narayan Hazra (referring to PW39,
Harayan Hazra) took shelter in PW2 Badal Malik’s house. At
around 1111.30 am, around 100150 persons armed with lathis,
rods, sabol, tangi, etc. assembled nearby, upon which Badal
Malik left the house and did not return. Soon, the mob outside
surrounded the house, and started throwing stones, brickbats,
etc. at the house. Thereafter, they set the house on fire, with a
view to smoke out the hiding persons, upon which the people
hiding inside took shelter in PW9 Mantu Mal’s house. This house
was also set on fire, though PW7 did not see the perpetrator. As
the hiding persons came out, they started getting assaulted. PW7
was assaulted by Sudeb Hazra (A30/R31 herein) with a tangi,
Jeydeb Hazra (A29/R30 herein) with an iron rod, Sitaram
Makar (A70/R71 herein) with a lathi, Sadhan Some (A78/R79
herein) with a lathi and by Becha Duley (A67/R68 herein) as
well.
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In his cross examination, PW7 stated that he did not know
of any provocation for the incident. He also stated that around
4050 persons had hidden inside Badal Malik’s house. He further
stated that he was beaten severely by the mob, and received 810
lathi blows, one rod blow, and was also assaulted by tangi, sabol,
etc.
PW14, Subhadra Malik is the mother of Manik Hazra
(deceased) and PW2, Badal Malik. She deposed that on the day of
the incident, Manik Hazra along with several IPF supporters took
shelter in Badal Malik’s house, where PW14 also lived, after
CPI(M) workers started threatening IPF workers. Soon, several
CPI(M) workers surrounded the house. Bhanu Hati and his son
Bhaluk Hati (A56/R57 herein) entered the house, and the latter
set the house on fire on his father’s instruction. After being thus
smoked out, the hiding persons sought shelter in PW9 Mantu
Mal’s house, which was set ablaze by Kachi Hati (possibly Kartik
Hazra, A28/R29 herein, see supra). The IPF persons started
coming out one by one and got assaulted. Sitaram Makar (A70/R71
herein), Abhoy Roy (A69/R70 herein), one Sakti Duley,
Joydev Duley, Joydev Hati (Joydeb Hazra, A29/R30 herein),
Sudeb Hati (Sudeb Hazra, A30/R31 herein), one Khudi Tah,
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Ganesh Kshetrapal (A39/R40 herein), one Promod Kshetrapal
and one Angad Kshetrapal began to assault Dilip Pakrey. One
Pranab Pakrey pierced his belly with a ballam. Sona (Som) Kora
(deceased) was assaulted by Sitaram (A70/R71 herein), Abhoy
Roy (A69/R70 herein), Joydeb (A20/R21 herein), Sudeb Hari
(Sudeb Hazra, A30/R31 herein), Joydeb Hari (Joydeb Hazra, A29/R30
herein) and others. Sadhan Nayak (deceased) was
dragged out of PW9 Mantu Mal’s house and assaulted by Sitaram
(A70/R71 herein), Abhoy (A69/R70 herein) and others. Suko
Kora (A53/R54 herein) assaulted Sadhan with an axe and killed
him. Manik Hazra (deceased) was assaulted by Sitaram (A70/R71
herein) with a ballam, and by Sudeb Hari (Sudeb Hazra, A30/R31
herein) with a sabol, after which he died. Sudeb inserted
a sabol in his rectum. Rajib Kora cut off Manik’s penis with a
banti. PW14 further deposed that she herself was assaulted by
one Sudeb Tah, one Kena Bagdi and others with a lathi, after
which she lost consciousness. She was in hospital for a number
of days due to her injuries. In her cross examination, she stated
that she did not recollect stating the above facts to the IO.
12. We could not find any significant variation in the
testimonies of all these witnesses. No major contradiction or
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variation is found. The presence of the witnesses on the spot has
not been seriously doubted by the defence during the crossexamination.
It is but natural to have certain minor variations in
the evidence of eyewitnesses, when a large number of people had
gathered to assault a smaller group of people and which resulted
in death of five persons and injuries to 24 persons. In such a
scenario, it could not have been possible to meticulously observe
all the actions of each and every accused. The Court also should
not expect from the witnesses to depose in a parrotlike fashion.
However, the overall evidence of these witnesses, prima facie,
appears to be untainted.
13. It is also evident that the above testimonies are consistent
on material facts, such as that on the day of the incident, CPI(M)
workers threatened IPF workers, who hid in PW2 Badal Malik’s
house. Thereafter, a mob of CPI(M) workers assembled outside
the house, which was set on fire to smoke out the hiding persons.
When they tried hiding in PW9 Mantu Mal’s house, that house
was set on fire as well. Finally, the IPF supporters ran out, at
which point they were assaulted by CPI(M) persons. All the
witnesses may not be consistent on each and every detail, such
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as who set the house on fire and who hit who with which
weapon, etc. It may be true that their depositions are found to
contain exaggerations such as the mutilation of deceased Manik
Hazra’s penis, which was found to be intact upon medical
examination. However, such embellishments and inconsistencies
do not go to the root of the matter. Additionally, we find from the
material on record that the improvements, if any, were only with
respect to weapons that had been used in the assaults and not to
the factum of assaults per se. The improvements, if any, made for
the first time before the Court, no doubt, need to be eschewed.
But that does not mean that the entire evidence of the witnesses
should be ignored only on the said ground.
14. It is a well settled position of law that the testimony of a
witness cannot be discarded in toto merely due to the presence of
embellishments or exaggerations. The doctrine of falsus in
uno, falsus in omnibus, which means “false in one thing, false in
everything” has been held to be inapplicable in the Indian
scenario, where the tendency to exaggerate is common. This
Court has endorsed the inapplicability of the doctrine in several
decisions, such as Nisar Ali v. State of Uttar Pradesh, AIR 1957
SC 366, Ugar Ahir v. State of Bihar, AIR 1965 SC 277, Sucha
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Singh v. State of Punjab, (2003) 7 SCC 643, Narain v. State of
Madhya Pradesh, (2004) 2 SCC 455 and Kameshwar Singh v.
State of Bihar, (2018) 6 SCC 433. In Krishna Mochi v. State of
Bihar, (2002) 6 SCC 81, this Court highlighted the dangers of
applying the doctrine in the Indian scenario:
“51. …The maxim falsus in uno, falsus in
omnibus has no application in India and the
witnesses cannot be branded as liars. The
maxim falsus in uno, falsus in omnibus (false in one
thing, false in everything) has not received general
acceptance nor has this maxim come to occupy the
status of rule of law. It is merely a rule of caution. All
that it amounts to is, that in such cases testimony
may be disregarded, and not that it must be
disregarded. The doctrine merely involves the
question of weight of evidence which a court may
apply in a given set of circumstances, but it is not
what may be called “a mandatory rule of evidence”.
(See Nisar Ali v. State of U.P. [AIR 1957 SC 366 : 1957
Cri LJ 550] )… The doctrine is a dangerous one,
specially in India, for if a whole body of the testimony
were to be rejected, because the witness was
evidently speaking an untruth in some aspect, it is to
be feared that administration of criminal justice
would come to a dead stop. Witnesses just cannot
help in giving embroidery to a story, however true in
the main. Therefore, it has to be appraised in each
case as to what extent the evidence is worthy of
acceptance, and merely because in some respects the
court considers the same to be insufficient for placing
reliance on the testimony of a witness, it does not
necessarily follow as a matter of law that it must be
disregarded in all respects as well. The evidence has
to be sifted with care. The aforesaid dictum is not a
sound rule for the reason that one hardly comes
across a witness whose evidence does not contain a
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grain of untruth or at any rate exaggeration,
embroideries or embellishment. (See Sohrab v. State
of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819]
and Ugar Ahir v. State of Bihar [AIR 1965 SC 277 :
(1965) 1 Cri LJ 256] .) An attempt has to be made to,
as noted above, in terms of felicitous metaphor,
separate the grain from the chaff, truth from
falsehood.”
15. It is not uncommon for witnesses to make exaggerations
during the course of evidence. But merely because there are
certain exaggerations, improvements and embellishments, the
entire prosecution story should not be doubted. In Ranjit Singh
v. State of Punjab, (1974) 4 SCC 552, this Court observed:
“26. It is trite that even when exaggerations and
embellishments are galore the courts can and indeed
are expected to undertake a forensic exercise aimed
at discovering the truth. The very fact that a large
number of people were implicated in the incident in
question who now stand acquitted by the High Court
need not have deterred the High Court from
appreciating the evidence on record and discarding
what was not credible while accepting and relying
upon what inspired confidence. That exercise was
legitimate for otherwise the Court would be seen as
abdicating and surrendering to distortions and/or
embellishments whether made out of bitterness or
any other reason including shoddy investigation by
the agencies concerned. The ultimate quest for the
court at all times remains “discovery of the truth”
and unless the court is so disappointed with the
difficulty besetting that exercise in a given case, as to
make it impossible for it to pursue that object, it
must make an endeavour in that direction.”
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This Court in State of Punjab v. Hari Singh (1974) 4 SCC 552,
observed as follows:
“16. As human testimony, resulting from widely
different powers of observation and description, is
necessarily faulty and even truthful witnesses not
infrequently exaggerate or imagine or tell half truths,
the Courts must try to extract and separate the hard
core of truth from the whole evidence. This is what is
meant by the proverbial saying that Courts must
separate “the chaff from the grain”. If, after
considering the whole mass of evidence, a residue of
acceptable truth is established by the prosecution
beyond any reasonable doubt the Courts are bound
to give effect to the result flowing from it and not
throw it overboard on purely hypothetical and
conjectural grounds.”
16. Thus, it cannot be doubted that it is the duty of the Court to
separate the chaff from the grain. Moreover, minor variations in
the evidence will not affect the root of the matter, inasmuch as
such minor variations need not be given major importance,
inasmuch as they would not materially alter the
evidence/credibility of the eye witnesses as a whole.
17. In light of the above discussion, prima facie, we find from
the records that the versions of the eye witnesses cannot be said
to be untrustworthy, especially in light of the observation of this
Court in Masalti’s case (supra). There are as many as 24 injured
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eye witnesses in the case and their presence cannot be doubted.
In this situation, we find that the High Court has not applied its
judicial mind in determining whether the judgment of the trial
court was perverse inasmuch as the entire body of evidence was
discarded, simply on the basis that some of the witnesses had
deposed for the first time before the Court.
18. Curiously, the High Court has not at all considered the
evidence concerning charges other than murder. Although, the
charges had been framed on questions such as burning houses,
unlawful assembly, etc., the evidence on these questions was
entirely overlooked and no finding was made by the trial Court as
well as the High Court. For instance, the Trial Court has
overlooked the entire evidence related to burning of houses, on
the sole ground that the burnt articles were not produced before
the Court. On the other hand, we find from the records that the
burnt articles were seized and produced before the Court, as is
clear from the seizure list (Ex. 1).
19. So far as the issue of unlawful assembly and common object
of the unlawful assembly is concerned, the Court generally could
determine those aspects based on the evidence on record. In the
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matter on hand, 36 eyewitnesses are available. According to the
case of the prosecution, all the accused came in a group to the
house of PW2, Badal Malik and PW9, Mantu Mal, and torched
these houses knowing fully well that the IPF party men had
assembled in those houses. Prima facie, the Court can visualize
the common object of unlawful assembly from this evidence. The
Court cannot expect the prosecution to prove its case by leading
separate evidence with respect to unlawful assembly and
common object. If those factors can be found out based on the
available material on record, there is no reason as to why the
Courts should ignore the same.
20. The nonconsideration of such vital issues by the High
Court, without which a question before the Court could not have
been satisfactorily determined, has led to injustice of a serious
and substantial character, warranting interference of this Court
and remand of the matter to the High Court for rehearing. We
find that the High Court has failed to consider whether the trial
Court brushed aside material evidence related to the issue of
murder, attempt to murder and grievous hurt, and entirely
overlooked material evidence on vital issues such as house
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burning, grievous hurt and unlawful assembly. Thus, in this
aspect too, the High Court has failed to apply its judicial mind to
verify whether the judgment of acquittal passed by the trial Court
was perverse or not.
21. With regard to the conflict between the ocular testimony
and the medical evidence, in our considered opinion, the High
Court has ignored the fact that lathis were also used while
assaulting along with sharp edge weapons. Moreover, it is by
now well settled that the medical evidence cannot override the
evidence of ocular testimony of the witnesses. If there is a
conflict between the ocular testimony and the medical evidence,
naturally the ocular testimony prevails. In other words, where
the eye witnesses account is found to be trustworthy and
credible, medical opinion pointing to alternative possibilities is
not accepted as conclusive [See State of U.P. vs. Krishna Gopal,
(1988) 4 SCC 302]. We do not wish to comment further on the
merits of the matter at this stage since the matter needs
remittance to the High Court.
22. The High Court has not at all assigned any cogent reason
for reaching its conclusion. We are conscious of the fact that
22
revisional jurisdiction must be exercised by the High Court only
in exceptional circumstances, where there is a gross miscarriage
of justice, manifest illegality or perversity in the judgment of the
lower court. Interference would be warranted only if there is a
manifest illegality in the judgment of the lower court. But in the
matter on hand, in our considered opinion, because of nonfurnishing
of valid reasons by the Trial Court, while coming to its
conclusion, there is manifest illegality, and thus, the view taken
by the High Court cannot be termed as reasonable. When there is
a glaring defect or manifest error leading to a flagrant miscarriage
of justice, this Court cannot shut its eyes merely on
technicalities, particularly while exercising jurisdiction under
Article 136 of the Constitution. In our considered opinion, the
revisional jurisdiction vested in the High Court has not been
properly exercised by the High Court. The High Court should not
have proceeded casually while affirming the judgment of the trial
Court. Having regard to the material on record and having
regard to the magnitude of the offence, the High Court should
have been more serious while considering the revision petition.
23. In the case of Sheetala Prasad vs. Shree Kant (2010) 2 SCC
190, this Court noted the principles on which the revisional
23
jurisdiction can be exercised. The relevant observations of this
Court are as under:
“12. The High Court was exercising the revisional
jurisdiction at the instance of a private complainant
and, therefore, it is necessary to notice the principles
on which such revisional jurisdiction can be
exercised. Subsection (3) of Section 401 of the Code
of Criminal Procedure prohibits conversion of a
finding of acquittal into one of conviction. Without
making the categories exhaustive, revisional
jurisdiction can be exercised by the High Court at the
instance of a private complainant
(1) where the trial court has wrongly shut out
evidence which the prosecution wished to produce,
(2) where the admissible evidence is wrongly
brushed aside as inadmissible,
(3) where the trial court has no jurisdiction to try
the case and has still acquitted the accused,
(4) where the material evidence has been
overlooked either by the trial court or the appellate
court or the order is passed by considering
irrelevant evidence, and
(5) where the acquittal is based on the
compounding of the offence which is invalid under
the law.
13. By now, it is well settled that the revisional
jurisdiction, when invoked by a private complainant
against an order of acquittal, cannot be exercised
lightly and that it can be exercised only in
exceptional cases where the interest of public justice
requires interference for correction of manifest
illegality or the prevention of gross miscarriage of
justice. In these cases, or cases of similar nature,
retrial or rehearing of the appeal may be ordered.”
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(Emphasis Supplied)
24. From the aforementioned decision, it is clear that where the
material evidence has been overlooked either by the trial Court or
by the appellate Court or the order is passed by considering
irrelevant evidence, the revisional jurisdiction can be exercised by
the High Court. In the matter on hand, as already mentioned,
material evidence has been overlooked by the Trial Court and the
High Court was incorrect in observing that the witnesses have
deposed for the first time before the court. We have already
clarified that the contradictions and improvements were minor in
nature, e.g. mainly with regard to weapons used. In the matter
on hand, the presence of the witnesses is not in dispute, and the
fact that 24 witnesses have suffered injuries cannot be disputed
either. Five deaths have also taken place. Curiously, the Courts
have observed that the injuries must have been suffered in a
stampede. There is no reason as to why only one group of people
would sustain injuries in the alleged stampede, if any. Thus, the
theory of stampede also prima facie may not be available to the
defendant having regard to the evidence on record. Moreover,
25
the material evidence regarding the charges other than murder
has also been ignored.
25. Thus, the High Court has failed to consider whether the
Trial Court discarded material evidence in the form of eyewitness
testimony on the issues of murder, attempt to murder and
grievous hurt and completely overlooked evidence on other
charges such as unlawful assembly and houseburning.
Consequently, we find that the High Court has not given due
consideration to the evidence on record to arrive at a reasoned
conclusion and has thus failed to exercise its revisional
jurisdiction in accordance with established principles. In our
opinion, it would be appropriate for the High Court to undertake
proper consideration of the material of the matter once again with
due application of the judicial mind to find out as to whether the
trial Court’s order has caused gross miscarriage of justice,
manifest illegality or perversity.
26. Before parting with the matter, we hasten to add that any
observations made in this order will not influence the High Court
in deciding the revision petition on merits. With these
observations, the appeal is allowed, the impugned judgment and
order of the High Court dated 30.06.2004 passed in C.R.R. No.
26
765 of 2002 is set aside and the matter is remitted to the High
Court to decide the revision petition on merits, in accordance
with law.
……………………………………..J.
[N.V. RAMANA]
NEW DELHI; ………………………………………J.
AUGUST 28, 2018. [MOHAN M. SHANTANAGOUDAR]
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1198 OF 2006
Menoka Malik and others ..Appellants
Versus
The State of West Bengal and others ..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. The instant appeal arises out of the judgment and order
dated 30th June, 2004 passed in C.R.R. No. 765 of 2002 by the
High Court of Judicature at Calcutta confirming the judgment of
acquittal passed by the Sessions Judge at Burdwan dated 15th
2
December, 2001 in Sessions Case No. 91/1998 (Sessions Trial
No. 10(7)/2000).
2. The case of the prosecution in brief is that on 30.05.1993,
panchayat elections were held in Karanda village, wherein the
CPI(M) party won and the IPF party lost. On the next day, i.e. on
31.05.1993, at about 8:30 a.m., 15 to 16 members of the IPF
party took shelter in the house of PW2, Badal Malik, their party
leader, upon being chased by some CPI(M) workers. At around
1:30 p.m., Bhanu Hathi, Kachi Hathi and Bhaluk Hathi (accused
no.56/respondent no.57 herein) started to abuse PW3, Shyamali
Pakrey, the wife of PW30, Sunil Pakrey, an IPF supporter, upon
whose protest, the CPI(M) persons mobilised around 250300
party workers, all being armed with weapons such as lathi,
balam, tangi etc. It is further the case of the prosecution that the
persons belonging to CPI(M) party set on fire the houses of IPF
members, including the party leader Badal Malik, assaulted IPF
members and broke into the houses of the locality and destroyed
household articles, apart from stealing an amount of Rs.700/
and snatching a pair of gold earrings. In the assault on IPF
members, five persons expired and 24 persons were seriously
injured.
3
3. The first information came to be lodged by Menoka Malik
(PW1/appellant no.1 herein) before Memari Police Station,
Burdwan District, which came to be registered in Case No.
82/1993 dated 31.05.1993 for the offences punishable under
Sections 147, 148, 149, 342, 448, 325, 326, 436, 379, 307 and
302 of the Indian Penal Code.
4. Charges were framed for the aforementioned offences. As
many as 82 accused were tried. 49 witnesses were examined by
the prosecution, which included 36 eye witnesses, i.e. PWs 123,
29, 30, 31, 33, 34, 35, 39, 40, 42, 43, 44, 45 and 47. Out of
these, the testimonies of PWs 17 and 18 ran counter to the
prosecution’s case, and PW42 claimed to not recollect the
incident on account of mental sickness.
5. The trial Court, at the outset, determined that there were
cogent allegations only against 32 persons out of the 82 accused
and proceeded to examine the evidence against those 32 persons
only. On evaluation of the material on record, the trial Court
acquitted all the accused by giving them the benefit of doubt. It
was observed by the trial Court that the prosecution sought to
establish the death of five persons through the use of sharp and
pointed weapons, but such factum was not alleged in the first
4
information report and only the factum of assault leading to the
death of two persons was reported; the names of the assailants
had not been disclosed in the first information report; several
witnesses were found to have admitted to have made disclosures
of allegations for the first time before the Court at the time of
recording their depositions; the evidence of the investigating
officer disclosed a number of contradictions in the evidence of eye
witnesses; there was nonrecovery of burnt articles, etc. It was
also observed by the trial Court that the medical evidence was
contrary to the ocular testimony of the witnesses, inasmuch as
the post mortem reports of the deceased and medical reports of
the injured showed the absence of incised or punctured wounds,
wherein the prosecution witnesses had stated that the deceased
and injured had been assaulted with sharp weapons such as
tangi, ballam, kencha, etc. The injuries found on the deceased as
well as on the injured persons were in the nature of bruises,
abrasions and lacerations, which, according to the trial Court,
might have been suffered due to a stampede. On these, among
other grounds, the trial Court acquitted the accused.
6. The State did not prefer any appeal against the judgment
and order of acquittal passed by the trial Court. However, the
5
first informant along with three others filed a revision petition
under Section 401 of the Code of Criminal Procedure before the
High Court. During the course of hearing of the revision petition,
it was submitted on behalf of the revision petitioners that no case
is made out against 48 of the 82 accused, and that the revision
petition would be concerned only with rest of the 34 accused. It
may be noted at this juncture that in the course of arguments
before us, it was brought to our notice that 6 out of these 34
accused are now dead.
7. The High Court found that there was no perversity or gross
procedural defect or error of law leading to glaring injustice, to
warrant interference with the decision of the trial Court. Though
a number of contentions were raised by the revision petitioners
before the High Court, the High Court proceeded to decide the
revision petition merely on the basis of the above finding. The
only other finding was that the nondetermination of the issue of
unlawful assembly by the trial Court in the manner suggested by
the appellants was not a sufficient reason to remand the case.
This was based on the reasoning that a direction for reappraisal
of evidence would create an unconscious impression in the mind
of the trial judge that the High Court wished the lower court to
6
reach a particular conclusion, and would also complicate the
issue in the given situation, where a large number of persons
were involved but no evidence existed against most of them. The
High Court further proceeded to observe that the trial Court had
reached a finding of acquittal upon a consideration of the
probative value of the evidence on record, in accordance with set
canons of law, and upon a meticulous examination of the same.
Certain general observations relating to the revisional powers of
the High Court were adverted to by the High Court, while coming
to its conclusion. Practically, the High Court has not touched the
case of the prosecution on merits, at least prima facie, to find out
as to whether the trial Court’s reasoning is just and proper or
not.
Preliminary Issue:
8. We have heard learned counsel on either side. Before
proceeding further, we would like to decide the preliminary
question that arose during the course of arguments regarding the
scope of interference by this Court with a judgment of the High
Court in exercise of its revisional power, affirming a conviction.
The question is no more res integra, inasmuch as this Court in
the case of Dharma vs. Nirmal Singh, (1996) 7 SCC 471 has held
7
that the bar under Section 401(3) does not restrict the power of
the Supreme Court under Article 136 of the Constitution. While
concluding so, the following observations were made:
“4. Before we record our reading of the evidence
produced in the case, let a legal submission
advanced by Shri Lalit, appearing for the respondentaccused,
be dealt with. His submission is that as the
complainant had approached the High Court in
revision and as under the revisional power available
to the High Court under Section 401 CrPC, the High
Court could not have altered the finding of acquittal
into one of conviction, because of what has been
stated in subsection (3) thereof, if we were to be
satisfied that the acquittal was wrongful, it would not
be within our competence to convict the respondent;
at best the case could be sent back for retrial. We are
not impressed with this submission inasmuch as the
approach to this Court being under Article 136 of the
Constitution. We do not read the limitation imposed
by Section 401(3) of the Code qua the power available
to us under the aforesaid provision. May it be pointed
out that a similar submission had been advanced by
Shri Lalit himself in the case of E.K.
Chandrasenan v. State of Kerala [(1995) 2 SCC 99 :
1995 SCC (Cri) 329 : JT (1995) 1 SC 496] , then
contending that this Court is incompetent to issue
rule of enhancement as had been done in those
cases. It was held in the aforesaid decision that the
power available to this Court under Article 136 is not
circumscribed by any limitation. In any case, power
under Article 142 is available to pass such order as
may be deemed appropriate to do complete justice.
We, therefore, reject this contention of Shri Lalit and
proceed to examine the materials to find out whether
case of conviction does exist, as the contention of the
appellant.”
8
9. In the case of State of Rajasthan vs. Islam, (2011) 6 SCC
343, this Court relying upon the earlier judgment in Dharma’s
case, held that if this Court is of the opinion that the acquittal is
not based on a reasonable view, then it may review the entire
material and there will be no limitation on this Court’s
jurisdiction under Article 136 of the Constitution to come to a
just conclusion quashing the acquittal.
10. From the aforementioned decisions, it is amply clear that it
is open for this Court to review the entire material and there is no
limitation on this Court’s jurisdiction under Article 136 to come
to a just conclusion if it determines that the High Court’s view
was not reasonable. The restriction as contained under Section
401(3) of the Cr.P.C. on the High Court cannot restrict the
powers of this Court under Article 136 of the Constitution. Thus,
it is for us to determine whether the view taken by the High
Court was reasonable or not based on available records.
Main Issue:
11. The trial Court, while coming to its conclusion, has
observed that several eye witnesses had revealed the material
facts before the trial Court for the first time, inasmuch as such
statements of the witnesses before the Court are material
9
improvements; such statements were not made by the witnesses
during the course of investigation before the police officials and
omissions are proved as per law.
However, we have endeavoured to satisfy our conscience
regarding the consistency/inconsistency of the eyewitness
accounts. To that end, we have gone through the testimonies of
the PWs. As we do not wish to burden this judgment by
discussing the testimonies of all PWs, we would like to revisit, as
examples, the testimonies of PWs 5, 7 and 14. Moreover, we are
mindful of the principle that in cases of this nature involving a
large number of offenders and a large number of victims, the
evidence of only two or three witnesses who give a consistent
account of the incident is sufficient to sustain conviction, as was
observed by this Court in the case of Masalti vs. State of U.P., AIR
1965 SC 202.
PW5, Anna Pakrey, deposed that on the day of the incident,
some IPF workers took shelter in the house of PW2, Badal Malik
on being threatened by some CPI(M) workers. After some time,
around 200250 CPI(M) workers, including Harigopal Goswami
(A80/R81 herein), Ram Tah (A68/R69 herein) and Satya
10
Chakroborty (A71/R72 herein) assembled around the house,
hurling abuses at the persons inside. The CPI(M) workers asked
Bhanu Hati (chargesheeted as accused, since deceased) to set the
house on fire, upon which the hiding people rushed out and took
shelter in the house of PW9, Mantu Mal, which was set on fire by
one Kachi Hati (a reference to Kartik Hazra, A28/R29 herein).
Thereafter, the IPF workers started running from room to room.
Dilip Pakrey (deceased), PW5’s husband, came out of the house,
at which point he was assaulted by Jiten Kora (A1/R2 herein),
Kena Kora (A7/R8 herein), Bhola Mukherjee (A77/R78
herein), and Sitaram Makar (A70/R71 herein), with deadly
weapons such as tangi, bogi, and kencha. Pranab Bouri (A40/R41
herein), struck Dilip Pakrey with a ballam. Sakti Gadi (A15/R16
herein) passed urine in his mouth. At this point, PW5
fainted. After she regained consciousness, she went around
looking for her children and got assaulted by Radhi Kora (A8/R9
herein) with a shavol and by one Santana Majhi (a reference to
Sanatan Mandi, A44/R45 herein) by a bamboo lathi. PW5
further stated that Manik Hazra (deceased) was assaulted by
Sudeb Hati (a reference to Sudeb Hazra, A30/R31 herein), and
that one Rajib Kora cut off Manik Hazra’s penis.
11
PW7, Nemai Hazra is an injured witness. He deposed that
on the day of the incident, on being threatened by CPI(M)
workers, he, his elder brother Manik Hazra (deceased), PW10,
Uttam Hazra, PW33, Uday Hazra, one Madan Hazra (referring to
PW43, Madau Hazra) and Narayan Hazra (referring to PW39,
Harayan Hazra) took shelter in PW2 Badal Malik’s house. At
around 1111.30 am, around 100150 persons armed with lathis,
rods, sabol, tangi, etc. assembled nearby, upon which Badal
Malik left the house and did not return. Soon, the mob outside
surrounded the house, and started throwing stones, brickbats,
etc. at the house. Thereafter, they set the house on fire, with a
view to smoke out the hiding persons, upon which the people
hiding inside took shelter in PW9 Mantu Mal’s house. This house
was also set on fire, though PW7 did not see the perpetrator. As
the hiding persons came out, they started getting assaulted. PW7
was assaulted by Sudeb Hazra (A30/R31 herein) with a tangi,
Jeydeb Hazra (A29/R30 herein) with an iron rod, Sitaram
Makar (A70/R71 herein) with a lathi, Sadhan Some (A78/R79
herein) with a lathi and by Becha Duley (A67/R68 herein) as
well.
12
In his cross examination, PW7 stated that he did not know
of any provocation for the incident. He also stated that around
4050 persons had hidden inside Badal Malik’s house. He further
stated that he was beaten severely by the mob, and received 810
lathi blows, one rod blow, and was also assaulted by tangi, sabol,
etc.
PW14, Subhadra Malik is the mother of Manik Hazra
(deceased) and PW2, Badal Malik. She deposed that on the day of
the incident, Manik Hazra along with several IPF supporters took
shelter in Badal Malik’s house, where PW14 also lived, after
CPI(M) workers started threatening IPF workers. Soon, several
CPI(M) workers surrounded the house. Bhanu Hati and his son
Bhaluk Hati (A56/R57 herein) entered the house, and the latter
set the house on fire on his father’s instruction. After being thus
smoked out, the hiding persons sought shelter in PW9 Mantu
Mal’s house, which was set ablaze by Kachi Hati (possibly Kartik
Hazra, A28/R29 herein, see supra). The IPF persons started
coming out one by one and got assaulted. Sitaram Makar (A70/R71
herein), Abhoy Roy (A69/R70 herein), one Sakti Duley,
Joydev Duley, Joydev Hati (Joydeb Hazra, A29/R30 herein),
Sudeb Hati (Sudeb Hazra, A30/R31 herein), one Khudi Tah,
13
Ganesh Kshetrapal (A39/R40 herein), one Promod Kshetrapal
and one Angad Kshetrapal began to assault Dilip Pakrey. One
Pranab Pakrey pierced his belly with a ballam. Sona (Som) Kora
(deceased) was assaulted by Sitaram (A70/R71 herein), Abhoy
Roy (A69/R70 herein), Joydeb (A20/R21 herein), Sudeb Hari
(Sudeb Hazra, A30/R31 herein), Joydeb Hari (Joydeb Hazra, A29/R30
herein) and others. Sadhan Nayak (deceased) was
dragged out of PW9 Mantu Mal’s house and assaulted by Sitaram
(A70/R71 herein), Abhoy (A69/R70 herein) and others. Suko
Kora (A53/R54 herein) assaulted Sadhan with an axe and killed
him. Manik Hazra (deceased) was assaulted by Sitaram (A70/R71
herein) with a ballam, and by Sudeb Hari (Sudeb Hazra, A30/R31
herein) with a sabol, after which he died. Sudeb inserted
a sabol in his rectum. Rajib Kora cut off Manik’s penis with a
banti. PW14 further deposed that she herself was assaulted by
one Sudeb Tah, one Kena Bagdi and others with a lathi, after
which she lost consciousness. She was in hospital for a number
of days due to her injuries. In her cross examination, she stated
that she did not recollect stating the above facts to the IO.
12. We could not find any significant variation in the
testimonies of all these witnesses. No major contradiction or
14
variation is found. The presence of the witnesses on the spot has
not been seriously doubted by the defence during the crossexamination.
It is but natural to have certain minor variations in
the evidence of eyewitnesses, when a large number of people had
gathered to assault a smaller group of people and which resulted
in death of five persons and injuries to 24 persons. In such a
scenario, it could not have been possible to meticulously observe
all the actions of each and every accused. The Court also should
not expect from the witnesses to depose in a parrotlike fashion.
However, the overall evidence of these witnesses, prima facie,
appears to be untainted.
13. It is also evident that the above testimonies are consistent
on material facts, such as that on the day of the incident, CPI(M)
workers threatened IPF workers, who hid in PW2 Badal Malik’s
house. Thereafter, a mob of CPI(M) workers assembled outside
the house, which was set on fire to smoke out the hiding persons.
When they tried hiding in PW9 Mantu Mal’s house, that house
was set on fire as well. Finally, the IPF supporters ran out, at
which point they were assaulted by CPI(M) persons. All the
witnesses may not be consistent on each and every detail, such
15
as who set the house on fire and who hit who with which
weapon, etc. It may be true that their depositions are found to
contain exaggerations such as the mutilation of deceased Manik
Hazra’s penis, which was found to be intact upon medical
examination. However, such embellishments and inconsistencies
do not go to the root of the matter. Additionally, we find from the
material on record that the improvements, if any, were only with
respect to weapons that had been used in the assaults and not to
the factum of assaults per se. The improvements, if any, made for
the first time before the Court, no doubt, need to be eschewed.
But that does not mean that the entire evidence of the witnesses
should be ignored only on the said ground.
14. It is a well settled position of law that the testimony of a
witness cannot be discarded in toto merely due to the presence of
embellishments or exaggerations. The doctrine of falsus in
uno, falsus in omnibus, which means “false in one thing, false in
everything” has been held to be inapplicable in the Indian
scenario, where the tendency to exaggerate is common. This
Court has endorsed the inapplicability of the doctrine in several
decisions, such as Nisar Ali v. State of Uttar Pradesh, AIR 1957
SC 366, Ugar Ahir v. State of Bihar, AIR 1965 SC 277, Sucha
16
Singh v. State of Punjab, (2003) 7 SCC 643, Narain v. State of
Madhya Pradesh, (2004) 2 SCC 455 and Kameshwar Singh v.
State of Bihar, (2018) 6 SCC 433. In Krishna Mochi v. State of
Bihar, (2002) 6 SCC 81, this Court highlighted the dangers of
applying the doctrine in the Indian scenario:
“51. …The maxim falsus in uno, falsus in
omnibus has no application in India and the
witnesses cannot be branded as liars. The
maxim falsus in uno, falsus in omnibus (false in one
thing, false in everything) has not received general
acceptance nor has this maxim come to occupy the
status of rule of law. It is merely a rule of caution. All
that it amounts to is, that in such cases testimony
may be disregarded, and not that it must be
disregarded. The doctrine merely involves the
question of weight of evidence which a court may
apply in a given set of circumstances, but it is not
what may be called “a mandatory rule of evidence”.
(See Nisar Ali v. State of U.P. [AIR 1957 SC 366 : 1957
Cri LJ 550] )… The doctrine is a dangerous one,
specially in India, for if a whole body of the testimony
were to be rejected, because the witness was
evidently speaking an untruth in some aspect, it is to
be feared that administration of criminal justice
would come to a dead stop. Witnesses just cannot
help in giving embroidery to a story, however true in
the main. Therefore, it has to be appraised in each
case as to what extent the evidence is worthy of
acceptance, and merely because in some respects the
court considers the same to be insufficient for placing
reliance on the testimony of a witness, it does not
necessarily follow as a matter of law that it must be
disregarded in all respects as well. The evidence has
to be sifted with care. The aforesaid dictum is not a
sound rule for the reason that one hardly comes
across a witness whose evidence does not contain a
17
grain of untruth or at any rate exaggeration,
embroideries or embellishment. (See Sohrab v. State
of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819]
and Ugar Ahir v. State of Bihar [AIR 1965 SC 277 :
(1965) 1 Cri LJ 256] .) An attempt has to be made to,
as noted above, in terms of felicitous metaphor,
separate the grain from the chaff, truth from
falsehood.”
15. It is not uncommon for witnesses to make exaggerations
during the course of evidence. But merely because there are
certain exaggerations, improvements and embellishments, the
entire prosecution story should not be doubted. In Ranjit Singh
v. State of Punjab, (1974) 4 SCC 552, this Court observed:
“26. It is trite that even when exaggerations and
embellishments are galore the courts can and indeed
are expected to undertake a forensic exercise aimed
at discovering the truth. The very fact that a large
number of people were implicated in the incident in
question who now stand acquitted by the High Court
need not have deterred the High Court from
appreciating the evidence on record and discarding
what was not credible while accepting and relying
upon what inspired confidence. That exercise was
legitimate for otherwise the Court would be seen as
abdicating and surrendering to distortions and/or
embellishments whether made out of bitterness or
any other reason including shoddy investigation by
the agencies concerned. The ultimate quest for the
court at all times remains “discovery of the truth”
and unless the court is so disappointed with the
difficulty besetting that exercise in a given case, as to
make it impossible for it to pursue that object, it
must make an endeavour in that direction.”
18
This Court in State of Punjab v. Hari Singh (1974) 4 SCC 552,
observed as follows:
“16. As human testimony, resulting from widely
different powers of observation and description, is
necessarily faulty and even truthful witnesses not
infrequently exaggerate or imagine or tell half truths,
the Courts must try to extract and separate the hard
core of truth from the whole evidence. This is what is
meant by the proverbial saying that Courts must
separate “the chaff from the grain”. If, after
considering the whole mass of evidence, a residue of
acceptable truth is established by the prosecution
beyond any reasonable doubt the Courts are bound
to give effect to the result flowing from it and not
throw it overboard on purely hypothetical and
conjectural grounds.”
16. Thus, it cannot be doubted that it is the duty of the Court to
separate the chaff from the grain. Moreover, minor variations in
the evidence will not affect the root of the matter, inasmuch as
such minor variations need not be given major importance,
inasmuch as they would not materially alter the
evidence/credibility of the eye witnesses as a whole.
17. In light of the above discussion, prima facie, we find from
the records that the versions of the eye witnesses cannot be said
to be untrustworthy, especially in light of the observation of this
Court in Masalti’s case (supra). There are as many as 24 injured
19
eye witnesses in the case and their presence cannot be doubted.
In this situation, we find that the High Court has not applied its
judicial mind in determining whether the judgment of the trial
court was perverse inasmuch as the entire body of evidence was
discarded, simply on the basis that some of the witnesses had
deposed for the first time before the Court.
18. Curiously, the High Court has not at all considered the
evidence concerning charges other than murder. Although, the
charges had been framed on questions such as burning houses,
unlawful assembly, etc., the evidence on these questions was
entirely overlooked and no finding was made by the trial Court as
well as the High Court. For instance, the Trial Court has
overlooked the entire evidence related to burning of houses, on
the sole ground that the burnt articles were not produced before
the Court. On the other hand, we find from the records that the
burnt articles were seized and produced before the Court, as is
clear from the seizure list (Ex. 1).
19. So far as the issue of unlawful assembly and common object
of the unlawful assembly is concerned, the Court generally could
determine those aspects based on the evidence on record. In the
20
matter on hand, 36 eyewitnesses are available. According to the
case of the prosecution, all the accused came in a group to the
house of PW2, Badal Malik and PW9, Mantu Mal, and torched
these houses knowing fully well that the IPF party men had
assembled in those houses. Prima facie, the Court can visualize
the common object of unlawful assembly from this evidence. The
Court cannot expect the prosecution to prove its case by leading
separate evidence with respect to unlawful assembly and
common object. If those factors can be found out based on the
available material on record, there is no reason as to why the
Courts should ignore the same.
20. The nonconsideration of such vital issues by the High
Court, without which a question before the Court could not have
been satisfactorily determined, has led to injustice of a serious
and substantial character, warranting interference of this Court
and remand of the matter to the High Court for rehearing. We
find that the High Court has failed to consider whether the trial
Court brushed aside material evidence related to the issue of
murder, attempt to murder and grievous hurt, and entirely
overlooked material evidence on vital issues such as house
21
burning, grievous hurt and unlawful assembly. Thus, in this
aspect too, the High Court has failed to apply its judicial mind to
verify whether the judgment of acquittal passed by the trial Court
was perverse or not.
21. With regard to the conflict between the ocular testimony
and the medical evidence, in our considered opinion, the High
Court has ignored the fact that lathis were also used while
assaulting along with sharp edge weapons. Moreover, it is by
now well settled that the medical evidence cannot override the
evidence of ocular testimony of the witnesses. If there is a
conflict between the ocular testimony and the medical evidence,
naturally the ocular testimony prevails. In other words, where
the eye witnesses account is found to be trustworthy and
credible, medical opinion pointing to alternative possibilities is
not accepted as conclusive [See State of U.P. vs. Krishna Gopal,
(1988) 4 SCC 302]. We do not wish to comment further on the
merits of the matter at this stage since the matter needs
remittance to the High Court.
22. The High Court has not at all assigned any cogent reason
for reaching its conclusion. We are conscious of the fact that
22
revisional jurisdiction must be exercised by the High Court only
in exceptional circumstances, where there is a gross miscarriage
of justice, manifest illegality or perversity in the judgment of the
lower court. Interference would be warranted only if there is a
manifest illegality in the judgment of the lower court. But in the
matter on hand, in our considered opinion, because of nonfurnishing
of valid reasons by the Trial Court, while coming to its
conclusion, there is manifest illegality, and thus, the view taken
by the High Court cannot be termed as reasonable. When there is
a glaring defect or manifest error leading to a flagrant miscarriage
of justice, this Court cannot shut its eyes merely on
technicalities, particularly while exercising jurisdiction under
Article 136 of the Constitution. In our considered opinion, the
revisional jurisdiction vested in the High Court has not been
properly exercised by the High Court. The High Court should not
have proceeded casually while affirming the judgment of the trial
Court. Having regard to the material on record and having
regard to the magnitude of the offence, the High Court should
have been more serious while considering the revision petition.
23. In the case of Sheetala Prasad vs. Shree Kant (2010) 2 SCC
190, this Court noted the principles on which the revisional
23
jurisdiction can be exercised. The relevant observations of this
Court are as under:
“12. The High Court was exercising the revisional
jurisdiction at the instance of a private complainant
and, therefore, it is necessary to notice the principles
on which such revisional jurisdiction can be
exercised. Subsection (3) of Section 401 of the Code
of Criminal Procedure prohibits conversion of a
finding of acquittal into one of conviction. Without
making the categories exhaustive, revisional
jurisdiction can be exercised by the High Court at the
instance of a private complainant
(1) where the trial court has wrongly shut out
evidence which the prosecution wished to produce,
(2) where the admissible evidence is wrongly
brushed aside as inadmissible,
(3) where the trial court has no jurisdiction to try
the case and has still acquitted the accused,
(4) where the material evidence has been
overlooked either by the trial court or the appellate
court or the order is passed by considering
irrelevant evidence, and
(5) where the acquittal is based on the
compounding of the offence which is invalid under
the law.
13. By now, it is well settled that the revisional
jurisdiction, when invoked by a private complainant
against an order of acquittal, cannot be exercised
lightly and that it can be exercised only in
exceptional cases where the interest of public justice
requires interference for correction of manifest
illegality or the prevention of gross miscarriage of
justice. In these cases, or cases of similar nature,
retrial or rehearing of the appeal may be ordered.”
24
(Emphasis Supplied)
24. From the aforementioned decision, it is clear that where the
material evidence has been overlooked either by the trial Court or
by the appellate Court or the order is passed by considering
irrelevant evidence, the revisional jurisdiction can be exercised by
the High Court. In the matter on hand, as already mentioned,
material evidence has been overlooked by the Trial Court and the
High Court was incorrect in observing that the witnesses have
deposed for the first time before the court. We have already
clarified that the contradictions and improvements were minor in
nature, e.g. mainly with regard to weapons used. In the matter
on hand, the presence of the witnesses is not in dispute, and the
fact that 24 witnesses have suffered injuries cannot be disputed
either. Five deaths have also taken place. Curiously, the Courts
have observed that the injuries must have been suffered in a
stampede. There is no reason as to why only one group of people
would sustain injuries in the alleged stampede, if any. Thus, the
theory of stampede also prima facie may not be available to the
defendant having regard to the evidence on record. Moreover,
25
the material evidence regarding the charges other than murder
has also been ignored.
25. Thus, the High Court has failed to consider whether the
Trial Court discarded material evidence in the form of eyewitness
testimony on the issues of murder, attempt to murder and
grievous hurt and completely overlooked evidence on other
charges such as unlawful assembly and houseburning.
Consequently, we find that the High Court has not given due
consideration to the evidence on record to arrive at a reasoned
conclusion and has thus failed to exercise its revisional
jurisdiction in accordance with established principles. In our
opinion, it would be appropriate for the High Court to undertake
proper consideration of the material of the matter once again with
due application of the judicial mind to find out as to whether the
trial Court’s order has caused gross miscarriage of justice,
manifest illegality or perversity.
26. Before parting with the matter, we hasten to add that any
observations made in this order will not influence the High Court
in deciding the revision petition on merits. With these
observations, the appeal is allowed, the impugned judgment and
order of the High Court dated 30.06.2004 passed in C.R.R. No.
26
765 of 2002 is set aside and the matter is remitted to the High
Court to decide the revision petition on merits, in accordance
with law.
……………………………………..J.
[N.V. RAMANA]
NEW DELHI; ………………………………………J.
AUGUST 28, 2018. [MOHAN M. SHANTANAGOUDAR]
