MENOKA MALIK AND OTHERS versus THE STATE OF WEST BENGAL AND OTHERS on 28 August 2018

[2018] 10 S.C.R. 707

MENOKA MALIK AND OTHERS

v.

THE STATE OF WEST BENGAL AND OTHERS

(Criminal Appeal No. 1198 of 2006)

AUGUST 28, 2018

[N. V. RAMANA AND

MOHAN M. SHANTANAGOUDAR, JJ.]

Penal Code, 1860: ss.147, 148, 149, 342, 448, 325, 326,436, 379, 307 and 302 – Political rivalry – Mob assault – Use ofsharp and pointed weapons – Death of 5 persons and seriousinjuries to several persons – Prosecution case was that the offenderparty broke into the houses of the locality, destroyed household,stole valuables and set the houses on fire and thereafter assaultedcomplainant party members causing death of 5 persons and seriousinjuries to 24 persons – Acquittal by trial court on benefit of doubt– High Court found no error in acquittal order – Complainant’sappeal against acquittal – Held: The observation of courts belowthat the injuries must have been suffered in a stampede is notconvincing as there was no reason for only one group of people tohave sustained injuries in the alleged stampede – The contradictionsand improvements were minor in nature – It is natural to have certainminor variations in the evidence of eye-witnesses, when a largenumber of people had gathered to assault a smaller group of people– In such a scenario, it is not possible to meticulously observe allthe actions of each and every accused – The overall evidence ofthese witnesses, prima facie, appeared untainted – Certainexaggerations, improvements and embellishments would not makethe entire prosecution story doubtful – There were as many as 24injured eye witnesses in the case and their presence cannot bedoubted – Presence of the witnesses on the spot was also notseriously doubted by the defence during the cross-examination – Inthis situation, the High Court did not apply its judicial mind indetermining whether the judgment of the trial court was perverseinasmuch as the entire body of evidence was discarded, simply onthe basis that some of the witnesses had deposed for the first timebefore the Court – High Court also did not at all consider the

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Aevidence concerning charges other than murder – Although, thecharges were framed on questions such as burning houses, unlawfulassembly, etc., the evidence on these questions was entirelyoverlooked and no finding was made by the trial court as well asthe High Court – High Court thus failed to exercise its revisionaljurisdiction in accordance with established principles – MatterBremitted to High Court to decide the revision petition on merits inaccordance with law.

Revision: Exercise of revisional jurisdiction – Where thematerial evidence was overlooked either by the trial Court or bythe appellate Court or the order is passed by considering irrelevantCevidence, the revisional jurisdiction can be exercised by the HighCourt – Penal Code, 1860.

Evidence: Embellishments or exaggerations in the testimony– Evidentiary value of the testimony – Held: The testimony of awitness cannot be discarded in toto merely due to the presence ofDembellishments or exaggerations – The doctrine of falsus in uno,falsus in omnibus, which means “false in one thing, false ineverything” is inapplicable in the Indian scenario,where thetendency to exaggerate is common – Doctrine.

Evidence: In cases involving a large number of offenders andEa large number of victims, the evidence of only two or three witnesseswho give a consistent account of the incident is sufficient to sustainconviction.

Evidence: Ocular and medical evidence – Conflict betweenthe ocular testimony and the medical evidence – Medical evidenceFcannot override the evidence of ocular testimony of the witnesses –Ocular testimony to prevail – Where the eye witnesses account isfound to be trustworthy and credible, medical opinion pointing toalternative possibilities is not accepted as conclusive.

Conclusion

Constitution of India: Art.136 – Scope of – Held: TheGrestriction as contained under s.401(3) of the Cr.P.C. on the HighCourt cannot restrict the powers of the Supreme Court under Art.136of the Constitution – Code of Criminal Procedure, 1973– s.401(3).

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Allowing the appeal, the Court

HELD: 1. It is open for the Supreme Court to review theentire material and there is no limitation on its jurisdiction underArticle 136 to come to a just conclusion if it determines that theHigh Court’s view was not reasonable. The restriction ascontained under Section 401(3) of the Cr.P.C. on the High Courtcannot restrict the powers of the Supreme Court under Article 136 of the Constitution. [Para 10] [716-B-C]

Dharma v. Nirmal Singh 1996 AIR SC 1136:[1996] 2 SCR 115 ; State of Rajasthan v. Islam (2011)

6 SCC 343 : [2011] 6 SCR 988 – relied on.

2. In cases involving a large number of offenders and alarge number of victims, the evidence of only two or threewitnesses who give a consistent account of the incident is sufficientto sustain conviction. The testimonies of Pws 5, 7 and 14 showsthat there was no significant variation or major contradiction intheir testimonies. The presence of the witnesses on the spotwas not seriously doubted by the defence during thecross-examination. The Court should not expect from thewitnesses to depose in a parrot-like fashion. However, theoverall evidence of these witnesses, prima facie, appears to beuntainted. It is also evident that these testimonies wereconsistent on material facts, such as that on the day of theincident, CPI(M) workers threatened IPF workers, who hid inPW2’s house. Thereafter, a mob of CPI(M) workers assembledoutside the house, which was set on fire to smoke out the hidingpersons. When they tried hiding in PW9’s house, that house wasset on fire as well. Finally, the IPF supporters ran out, at whichpoint they were assaulted by CPI(M) persons. All the witnessesmay not be consistent on each and every detail, such as who setthe house on fire and who hit who with which weapon, etc. It maybe true that their depositions are found to contain exaggerationssuch as the mutilation of deceased’s penis, which was found to beintact upon medical examination. However, such embellishmentsand inconsistencies do not go to the root of the matter. It is theduty of the Court to separate the chaff from the grain. There are A

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Aas many as 24 injured eye witnesses in the case and theirpresence cannot be doubted. [Paras 11, 12, 13, 16, 17] [716-F-G;718-G-H; 719-A, B-E]

Masalti v. State of U.P., AIR 1965 SC 202 :[1964] SCR 133 ; Nisar Ali v. State of Uttar PradeshBAIR 1957 SC 366 : [1957] SCR 657 ; Ugar Ahir v.State of Bihar AIR 1965 SC 277 ; Sucha Singh v. Stateof Punjab, (2003) 7 SCC 643 : [2003] 2 Suppl. SCR35 ; Narain v. State of Madhya Pradesh, (2004) 2 SCC455 : [2004] 2 SCR 82 ; Kameshwar Singh v. State ofBihar, (2018) 6 SCC 433 ; Krishna Mochi v. State ofCBihar, (2002) 6 SCC 81 : [2002] 3 SCR 1 ; Ranjit Singhv. State of Punjab (1974) 4 SCC 752 ; State of Punjabv. Hari Singh (1974) 4 SCC 552 – relied on.

3.1 Although, the charges had been framed on questionssuch as burning houses, unlawful assembly, etc., the evidence onDthese questions was entirely overlooked and no finding was madeby the trial Court as well as the High Court. The Trial Court hasoverlooked the entire evidence related to burning of houses, onthe sole ground that the burnt articles were not produced beforethe Court. On the other hand, the burnt articles were seized andEproduced before the Court. [Para 18] [722-C-D]

3.2 So far as the issue of unlawful assembly and commonobject of the unlawful assembly is concerned, the Court generallycould determine those aspects based on the evidence on record.In the matter on hand, 36 eye-witnesses were available. AccordingFto the case of the prosecution, all the accused came in a group tothe house of PW2, and PW9, and torched these houses knowingfully well that the IPF party men had assembled in those houses.Prima facie, the Court can visualize the common object of unlawfulassembly from this evidence. The Court cannot expect theprosecution to prove its case by leading separate evidence withGrespect to unlawful assembly and common object. If those factorscan be found out based on the available material on record, thereis no reason as to why the Courts should ignore the same. Thenon-consideration of such vital issues by the High Court, withoutwhich a question before the Court could not have been H

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satisfactorily determined, has led to injustice of a serious andsubstantial character, warranting interference of this Court andremand of the matter to the High Court for rehearing. With regardto the conflict between the ocular testimony and the medicalevidence, the High Court has ignored the fact that lathis werealso used while assaulting along with sharp edge weapons.Moreover, it is by now well settled that the medical evidencecannot override the evidence of ocular testimony of the witnesses.[Paras 19, 20, 21] [722-E-H; 723-C]

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State of U.P. v. Krishna Gopal (1988) 4 SCC 302 :

[1988] 2 Suppl. SCR 391 – relied on.

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4. Where the material evidence was overlooked either bythe trial Court or by the appellate Court or the order is passedby considering irrelevant evidence, the revisional jurisdiction canbe exercised by the High Court. In the matter on hand, materialevidence was overlooked by the trial court and the High Courtwas incorrect in observing that the witnesses deposed for thefirst time before the court. Five deaths took place. The Courtsobserved that the injuries must have been suffered in a stampede.There is no reason as to why only one group of people wouldsustain injuries in the alleged stampede, if any. Thus, the theoryof stampede also prima facie may not be available to the defendanthaving regard to the evidence on record. [Paras 24] [724-G-H;725-A, B-C]

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Sheetala Prasad v. Shree Kant (2010) 2 SCC 190 :[2009] 16 SCR 686 – relied on.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1198 of 2006.

CFrom the Judgment and Order dated 30.06.2004 of the High Courtat Calcutta in C.R.R. No. 765 of 2002.

Anil Nauriya, Ms. Sumita Hazarika, Dibakar Bhattacharjya,Ms. Ipsita Behura, Jyotirmoy Adhikari, Brij Bhushan, Ms. PankhuriShrivastava, Rupesh Kumar, Suhaan Mukerji, Ms. Astha Sharma, AmitDVerma, Ms. Kajal Dalal (for M/s. PLR Chambers And Co.), Advs. forthe appearing parties.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J. 1. The instant appealarises out of the judgment and order dated 30[th] June, 2004 passed inEC.R.R. No. 765 of 2002 by the High Court of Judicature at Calcuttaconfirming the judgment of acquittal passed by the Sessions Judge atBurdwan dated 15[th]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,Fpanchayat 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, atabout 8:30 a.m., 15 to 16 members of the IPF party took shelter in thehouse of PW2, Badal Malik, their party leader, upon being chased bysome CPI(M) workers. At around 1:30 p.m., Bhanu Hathi, Kachi HathiGand Bhaluk Hathi(accused no.56/respondent no.57 herein) started toabuse PW3, Shyamali Pakrey, the wife of PW30, Sunil Pakrey, an IPFsupporter, upon whose protest, the CPI(M) persons mobilised around250-300 party workers, all being armed with weapons such as lathi,balam, tangi etc. It is further the case of the prosecution that the personsbelonging to CPI(M) party set on fire the houses of IPF members, H

including the party leader Badal Malik, assaulted IPF members and brokeinto the houses of the locality and destroyed household articles, apartfrom stealing an amount of Rs.700/- and snatching a pair of gold earrings.In the assault on IPF members, five persons expired and 24 personswere seriously injured.

3. The first information came to be lodged by Menoka Malik(PW1/appellant no.1 herein) before Memari Police Station, BurdwanDistrict, which came to be registered in Case No. 82/1993 dated31.05.1993 for the offences punishable under Sections147,148,149,342,448,325,326,436,379,307 and 302 of the Indian PenalCode.

4. Charges were framed for the aforementioned offences. Asmany as 82 accused were tried. 49 witnesses were examined by theprosecution, which included 36 eye witnesses, i.e. PWs 1-23, 29, 30, 31,33, 34, 35, 39, 40, 42, 43, 44, 45 and 47.Out of these, the testimonies ofPWs 17 and 18 ran counter to theprosecution’s case, and PW42 claimedto not recollect theincident on account of mental sickness.

5. The trial Court, at the outset, determined that there were cogentallegations only against 32 persons out of the 82 accused and proceededto examine the evidence against those 32 persons only. On evaluation ofthe material on record, the trial Court acquitted all the accused by givingthem the benefit of doubt. It was observed by the trial Court that theprosecution sought to establish the death of five persons through the useof sharp and pointed weapons, but such factum was not alleged in thefirst information report and only the factum of assault leading to thedeath of two persons was reported; the names of the assailants had notbeen disclosed in the first information report; several witnesses werefound to have admitted to have made disclosures of allegations for thefirst time before the Court at the time of recording their depositions; theevidence of the investigating officer disclosed a number of contradictionsin the evidence of eye witnesses; there was non-recovery of burnt articles,etc. It was also observed by the trial Court that the medical evidencewas contrary to the ocular testimony of the witnesses, inasmuch as thepost mortem reports of the deceased and medical reports of the injuredshowed the absence of incised or punctured wounds, wherein theprosecution witnesses had stated that the deceased and injured had beenassaulted with sharp weapons such as tangi, ballam, kencha, etc. The A

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Ainjuries found on the deceased as well as on the injured persons were inthe nature of bruises, abrasions and lacerations, which, according to thetrial 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 andBorder of acquittal passed by the trial Court. However, the first informantalong with three others filed a revision petition under Section 401 of theCode of Criminal Procedure before the High Court. During the courseof hearing of the revision petition, it was submitted on behalf of therevision 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 34Caccused. It may be noted at this juncture that in the course of argumentsbefore us, it was brought to our notice that 6 out of these 34 accused arenow dead.

7. The High Court found that there was no perversity or grossprocedural defect or error of law leading to glaring injustice, to warrantDinterference with the decision of the trial Court. Though a number ofcontentions were raised by the revision petitioners before the High Court,the High Court proceeded to decide the revision petition merely on thebasisof the above finding. The only other finding was that the non-determinationof the issue of unlawful assembly by the trial Court in the mannerEsuggested by the appellants was not a sufficient reason to remand thecase. This wasbased on the reasoning that a direction for reappraisal ofevidence would create an unconscious impression in the mind of the trialjudge that the High Court wished the lower court to reach a particularconclusion, and would also complicate the issue in the given situation,where a large number of persons were involved but no evidence existedFagainst most of them. The High Court further proceeded to observe thatthe trial Court had reached a finding of acquittal upon a consideration ofthe probative value of the evidence on record, in accordance with setcanons of law, and upon a meticulous examination of the same. Certaingeneral observations relating to the revisional powers of the High CourtGwere adverted to by the High Court, while coming to its conclusion.Practically, the High Court has not touched the case of the prosecutionon merits, at least prima facie, to find out as to whether the trial Court’sreasoning is just and proper or not.

Preliminary Issue:

8. We have heard learned counsel on either side. Beforeproceeding further, we would like to decide the preliminary question thatarose during the course of arguments regarding the scope of interferenceby this Court with a judgment of the High Court in exercise of its revisionalpower, 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 that the bar under Section 401(3) does not restrictthe 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 thecase, let a legal submission advanced by Shri Lalit, appearing forthe respondent-accused, be dealt with. His submission is that asthe complainant had approached the High Court in revision andas under the revisional power available to the High Court underSection 401 CrPC, the High Court could not have altered thefinding of acquittal into one of conviction, because of what hasbeen stated in sub-section (3) thereof, if we were to be satisfiedthat the acquittal was wrongful, it would not be within ourcompetence to convict the respondent; at best the case could besent back for retrial. We are not impressed with this submissioninasmuch as the approach to this Court being under Article 136 ofthe Constitution. We do not read the limitation imposed by Section401(3) of the Code qua the power available to us under theaforesaid provision. May it be pointed out that a similar submissionhad 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 isincompetent to issue rule of enhancement as had been done inthose cases. It was held in the aforesaid decision that the poweravailable to this Court under Article 136 is not circumscribed byany limitation. In any case, power under Article 142 is available topass such order as may be deemed appropriate to do completejustice. We, therefore, reject this contention of Shri Lalit andproceed to examine the materials to find out whether case ofconviction does exist, as the contention of the appellant.”

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9. In the case of State of Rajasthan vs. Islam, (2011) 6 SCC343, this Court relying upon the earlier judgment in Dharma’s case, heldthat if this Court is of the opinion that the acquittal is not based on areasonable view, then it may review the entire material and there will beno limitation on this Court’s jurisdiction under Article 136 of theConstitution to come to a just conclusion quashing the acquittal.

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10. From the aforementioned decisions, it is amply clear that it isopen for this Court to review the entire material and there is no limitationon this Court’s jurisdiction under Article 136 to come to a just conclusionif it determines that the High Court’s view was not reasonable.Therestriction as contained under Section 401(3) of the Cr.P.C. on the HighCourt cannot restrict the powers of this Court under Article 136 of theConstitution.Thus, it is for us to determine whether the view taken bythe High Court was reasonable or not based on available records.

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Main Issue:

11. The trial Court, while coming to its conclusion, has observedthat several eye witnesses had revealed the material facts before thetrial Court for the first time, inasmuch as such statements of the witnessesbefore the Court are material improvements; such statements were notmade by the witnesses during the course of investigation before thepolice officials and omissions are proved as per law.

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However, we have endeavoured to satisfy our conscienceregarding the consistency/inconsistency of the eyewitness accounts. Tothat end, we have gone through the testimonies of the PWs. As we donot wish to burden this judgment by discussing the testimonies of allPWs, we would like to revisit, as examples, the testimonies of PWs 5, 7Fand 14. Moreover, we are mindful of the principle that in cases of thisnature involving a large number of offenders and a large number ofvictims, the evidence of only two or three witnesses who give aconsistent account of the incident is sufficient to sustain conviction, aswas observed by this Court in the case of Masalti vs. State of U.P.,AIR 1965 SC 202.

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PW5, Anna Pakrey, deposed that on the day of the incident, someIPF workers took shelter in the house of PW2, Badal Malik on beingthreatened by some CPI(M) workers. After some time, around 200-250CPI(M) workers, including Harigopal Goswami (A-80/R-81 herein), Ram H

Tah (A-68/R-69 herein) and Satya Chakroborty (A-71/R-72 herein)assembled around the house, hurling abuses at the persons inside. TheCPI(M) workers asked Bhanu Hati (chargesheeted as accused, sincedeceased) to set the house on fire, upon which the hiding people rushedout and took shelter in the house of PW9, Mantu Mal, which was set onfire by one KachiHati (a reference to Kartik Hazra, A-28/R-29 herein).Thereafter, the IPF workers started running from room to room. DilipPakrey (deceased), PW5’s husband, came out of the house, at whichpoint he was assaulted by Jiten Kora (A-1/R-2 herein), KenaKora(A-7/R-8 herein), Bhola Mukherjee (A-77/R-78 herein), andSitaram Makar (A-70/R-71 herein), with deadly weapons such as tangi,bogi, and kencha. Pranab Bouri (A-40/R-41 herein), struck Dilip Pakreywith a ballam. Sakti Gadi (A-15/R-16 herein) passed urine in his mouth.At this point, PW5 fainted. After she regained consciousness, she wentaround looking for her children and got assaulted by RadhiKora (A-8/R-9 herein) with a shavol and by one Santana Majhi (areference to Sanatan Mandi, A-44/R-45 herein) by a bamboo lathi. PW5further stated that Manik Hazra (deceased) was assaulted by SudebHati (a reference to SudebHazra, A-30/R-31 herein), and that one RajibKora cut off Manik Hazra’s penis.

PW7, NemaiHazra is an injured witness. He deposed that on theday of the incident, on being threatened by CPI(M) workers, he, hiselder brother Manik Hazra (deceased), PW10, Uttam Hazra, PW33,Uday Hazra, one Madan Hazra (referring to PW43, MadauHazra) andNarayan Hazra (referring to PW39, HarayanHazra) took shelter in PW2Badal Malik’s house. At around 11-11.30 am, around 100-150 personsarmed with lathis, rods, sabol, tangi, etc. assembled nearby, upon whichBadal Malik left the house and did not return. Soon, the mob outsidesurrounded the house, and started throwing stones, brickbats, etc. at thehouse. Thereafter, they set the house on fire, with a view to smoke outthe hiding persons, upon which the people hiding inside took shelter inPW9 Mantu Mal’s house. This house was also set on fire, though PW7did not see the perpetrator. As the hiding persons came out, they startedgetting assaulted. PW7 was assaulted by Sudeb Hazra (A-30/R-31herein) with a tangi, Jeydeb Hazra (A-29/R-30 herein) with an iron rod,Sitaram Makar (A-70/R-71 herein) with a lathi, Sadhan Some (A-78/R-79 herein) with a lathi and by Becha Duley (A-67/R-68 herein) as well.

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In his cross examination, PW7 stated that he did not know of anyprovocation for the incident. He also stated that around 40-50 personshad hidden inside Badal Malik’s house. He further stated that he wasbeaten severely by the mob, and received 8-10 lathi blows, one rod blow,and was also assaulted by tangi, sabol, etc.

BPW14, 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 BadalMalik’s house, where PW14 also lived, after CPI(M) workers startedthreatening IPF workers. Soon, several CPI(M) workers surroundedthe house. Bhanu Hati and his son Bhaluk Hati (A-56/R-57 herein)Centered the house, and the latter set the house on fire on his father’sinstruction. After being thus smoked out, the hiding persons soughtshelter in PW9 Mantu Mal’s house, which was set ablaze by Kachi Hati(possibly Kartik Hazra, A-28/R-29 herein, see supra). The IPF personsstarted coming out one by one and got assaulted. Sitaram Makar (A-70/DR-71 herein), Abhoy Roy (A-69/R-70 herein), one Sakti Duley, JoydevDuley, Joydev Hati (Joydeb Hazra, A-29/R-30 herein), Sudeb Hati (SudebHazra, A-30/R-31 herein), one Khudi Tah, Ganesh Kshetrapal (A-39/R-40 herein), one Promod Kshetrapal and one Angad Kshetrapal beganto assault Dilip Pakrey. One Pranab Pakrey pierced his belly with aballam. Sona (Som) Kora (deceased) was assaulted by Sitaram (A-70/ER-71 herein), Abhoy Roy (A-69/R-70 herein), Joydeb (A-20/R-21 herein),Sudeb Hari (Sudeb Hazra, A-30/R-31 herein), Joydeb Hari (Joydeb Hazra,A-29/R-30 herein) and others. Sadhan Nayak (deceased) was draggedout of PW9 MantuMal’s house and assaulted by Sitaram (A-70/R-71herein), Abhoy (A-69/R-70 herein) and others. Suko Kora (A-53/R-54

Fherein) assaulted Sadhan with an axe and killed him. Manik Hazra(deceased) was assaulted by Sitaram (A-70/R-71 herein) with a ballam,and by Sudeb Hari (Sudeb Hazra, A-30/R-31 herein) with a sabol, afterwhich he died. Sudeb inserted a sabol in his rectum. Rajib Kora cut offManik’s penis with a banti. PW14 further deposed that she herself wasassaulted by one Sudeb Tah, one Kena Bagdi and others with a lathi,Gafter which she lost consciousness. She was in hospital for a number ofdays due to her injuries. In her cross examination, she stated that shedid not recollect stating the above facts to the IO.

12. We could not find any significant variation in the testimoniesof all these witnesses. No major contradiction or variation is found. TheH

presence of the witnesses on the spot has not been seriously doubted bythe defence during the cross-examination. It is but natural to havecertain minor variations in the evidence of eye-witnesses, when a largenumber of people had gathered to assault a smaller group of people andwhich resulted in death of five persons and injuries to 24 persons. Insuch a scenario, it could not have been possible to meticulously observeall the actions of each and every accused. The Court also should notexpect fromthe witnesses to depose in a parrot-like fashion. However,the overall evidence of these witnesses, prima facie, appears to beuntainted.

13. It is also evident that the above testimonies are consistent onmaterial facts, such as that on the day of the incident, CPI(M) workersthreatened 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 triedhiding 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 assaultedby CPI(M) persons. All the witnesses may not be consistent on eachand every detail, such as who set the house on fire and who hit who withwhich weapon, etc. It may be true that their depositions are found tocontain exaggerations such as the mutilation of deceased Manik Hazra’spenis, which was found to be intact upon medical examination. However,such embellishments and inconsistencies do not go to the root of thematter.Additionally, we find from the material on record that theimprovements, if any, were only with respect to weapons that had beenused in the assaults and not to the factum of assaults per se. Theimprovements, if any, made for the first time before the Court, no doubt,need to be eschewed. But that does not mean that the entire evidenceof the witnesses should be ignored only on the said ground.

14. It is a well settled position of law that the testimony of awitness cannot be discarded in toto merely due to the presence ofembellishments or exaggerations. The doctrine of falsus inuno, falsusin omnibus, which means “false in one thing, false ineverything” hasbeen held to be inapplicable in the Indian scenario, where the tendencyto exaggerate is common. This Court hasendorsed the inapplicability ofthe doctrine in several decisions, such as Nisar Ali v. State of UttarPradesh, AIR 1957 SC 366, UgarAhir v. State ofBihar, AIR 1965SC 277, Sucha Singh v. State of Punjab, (2003) 7 SCC 643, Narain AB

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Av. State of Madhya Pradesh, (2004) 2 SCC 455 and KameshwarSingh v. State of Bihar, (2018) 6 SCC 433. In Krishna Mochi v.State of Bihar, (2002) 6 SCC 81, this Court highlighted the dangers ofapplying the doctrine in the Indian scenario:

“51. …The maxim falsus in uno, falsus in omnibus has noBapplication 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 hasthis maxim come to occupy the status of rule of law. It is merelya rule of caution. All that it amounts to is, that in such casestestimony may be disregarded, and not that it must be disregarded.CThe doctrine merely involves the question of weight of evidencewhich a court may apply in a given set of circumstances, but it isnot what may be called “a mandatory rule of evidence”.(See Nisar Ali v. State of U.P. [AIR 1957 SC 366 : 1957 Cri LJ550] )… The doctrine is a dangerous one, specially in India, for ifDa whole body of the testimony were to be rejected, because thewitness was evidently speaking an untruth in some aspect, it is tobe feared that administration of criminal justice would come to adead stop. Witnesses just cannot help in giving embroidery to astory, however true in the main. Therefore, it has to be appraisedin each case as to what extent the evidence is worthy ofEacceptance, and merely because in some respects the courtconsiders the same to be insufficient for placing reliance on thetestimony of a witness, it does not necessarily follow as a matterof law that it must be disregarded in all respects as well. Theevidence has to be sifted with care. The aforesaid dictum is not aFsound rule for the reason that one hardly comes across a witnesswhose evidence does not contain a grain of untruth or at any rateexaggeration, embroideries or embellishment. (See Sohrab v. Stateof M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819] and Ugar Ahirv. 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 felicitousGmetaphor, separate the grain from the chaff, truth from falsehood.”

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15. It is not uncommon for witnesses to make exaggerationsduring the course of evidence. But merely because there are certainexaggerations, improvements and embellishments, the entire H

prosecution story should not be doubted. In Ranjit Singh v. State ofPunjab, (1974) 4 SCC 752, this Court observed:

“26. It is trite that even when exaggerations and embellishmentsare galore the courts can and indeed are expected to undertake aforensic exercise aimed at discovering the truth. The very factthat a large number of people were implicated in the incident inquestion who now stand acquitted by the High Court need nothave deterred the High Court from appreciating the evidence onrecord and discarding what was not credible while accepting andrelying upon what inspired confidence. That exercise waslegitimate for otherwise the Court would be seen as abdicatingand surrendering to distortions and/or embellishments whethermade out of bitterness or any other reason including shoddyinvestigation by the agencies concerned. The ultimate quest forthe court at all times remains “discovery of the truth” and unlessthe court is so disappointed with the difficulty besetting thatexercise in a given case, as to make it impossible for it to pursuethat object, it must make an endeavour in that direction.”

This Court in State of Punjab v. Hari Singh (1974) 4 SCC 552,observed as follows:

“16. As human testimony, resulting from widely different powersof observation and description, is necessarily faulty and eventruthful witnesses not infrequently exaggerate or imagine or tellhalf truths, the Courts must try to extract and separate the hardcore of truth from the whole evidence. This is what is meant bythe proverbial saying that Courts must separate “the chaff fromthe grain”. If, after considering the whole mass of evidence, aresidue of acceptable truth is established by the prosecutionbeyond any reasonable doubt the Courts are bound to give effectto the result flowing from it and not throw it overboard on purelyhypothetical and conjectural grounds.”

16. Thus, it cannot be doubted that it is the duty of the Court toseparate the chaff from the grain. Moreover, minor variations in theevidence will not affect the root of the matter, inasmuch as such minorvariations need not be given major importance, inasmuch as they wouldnot materially alter the evidence/credibility of the eye witnesses as awhole.

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A17. In light of the above discussion, prima facie, we find from therecords that the versions of the eye witnesses cannot be said to beuntrustworthy, especially in light of the observation of this Court inMasalti’s case (supra). There are as many as 24 injured eye witnessesin the case and their presence cannot be doubted.In this situation, wefind that the High Court has not applied its judicial mind in determiningBwhether the judgment of the trial court was perverse inasmuch as theentire body of evidence was discarded, simply on the basis that some ofthe witnesses had deposed for the first time before the Court.

18. Curiously, the High Court has not at all considered theevidence concerning charges other than murder. Although, the chargesChad been framed on questions such as burning houses, unlawfulassembly, etc., the evidence on these questions was entirely overlookedand no finding was made by the trial Court as well as the High Court.For instance, the Trial Court has overlooked the entire evidence relatedto burning of houses, on the sole ground that the burnt articles were notDproduced before the Court. On the other hand, we find from the recordsthat the burnt articles were seized and produced before the Court, as isclear from the seizure list (Ex. 1).

19. So far as the issue of unlawful assembly and common objectof the unlawful assembly is concerned, the Court generally couldEdetermine those aspects based on the evidence on record. In the matteron hand, 36 eye-witnesses are available. According to the case of theprosecution, all the accused came in a group to the house of PW2, BadalMalik and PW9, Mantu Mal, and torched these houses knowing fullywell that the IPF party men had assembled in those houses. Primafacie, the Court can visualize the common object of unlawful assemblyFfrom this evidence. The Court cannot expect the prosecution to proveits case by leading separate evidence with respect to unlawful assemblyand common object. If those factors can be found out based on theavailable material on record, there is no reason as to why the Courtsshould ignore the same.G

20. The non-consideration of such vital issues by the High Court,without which a question before the Court could not have beensatisfactorily determined, has led to injustice of a serious and substantialcharacter, warranting interference of this Court and remand of thematter to the High Court for rehearing.We find that the High Court has H

failed to consider whether the trial Court brushed aside materialevidence related to the issue of murder, attempt to murder and grievoushurt, and entirely overlooked material evidence on vital issues such ashouse burning, grievous hurt and unlawful assembly. Thus, in thisaspect too, the High Court has failed to apply its judicial mind to verifywhether the judgment of acquittal passed by the trial Court wasperverse or not.

21. With regard to the conflict between the ocular testimony andthe medical evidence, in our considered opinion, the High Court hasignored the fact that lathis were also used while assaulting along withsharp edge weapons. Moreover, it is by now well settled that the medicalevidence cannot override the evidence of ocular testimony of thewitnesses. If there is a conflict between the ocular testimony and themedical 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 asconclusive [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 thisstage since the matter needs remittance to the High Court.

22. The High Court has not at all assigned any cogent reason forreaching its conclusion.We are conscious of the fact that revisionaljurisdiction must be exercised by the High Court only in exceptionalcircumstances, where there is a gross miscarriage of justice, manifestillegality or perversity in the judgment of the lower court. Interferencewould be warranted only if there is a manifest illegality in the judgmentof the lower court. But in the matter on hand, in our considered opinion,because of non-furnishing of valid reasons by the Trial Court, whilecoming to its conclusion, there is manifest illegality, and thus, the viewtaken by the High Court cannot be termed as reasonable. When there isa glaring defect or manifest error leading to a flagrant miscarriage ofjustice, this Court cannot shut its eyes merely on technicalities, particularlywhile exercising jurisdiction under Article 136 of the Constitution. In ourconsidered opinion, the revisional jurisdiction vested in the High Courthas not been properly exercised by the High Court. The High Courtshould not have proceeded casually while affirming the judgment of thetrial Court. Having regard to the material on record and having regardto the magnitude of the offence, the High Court should have been moreserious while considering the revision petition.

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A23. In the case of Sheetala Prasad vs. Shree Kant (2010) 2SCC 190, this Court noted the principles on which the revisionaljurisdiction can be exercised. The relevant observations of this Courtare as under:

“12. The High Court was exercising the revisional jurisdiction atBthe instance of a private complainant and, therefore, it is necessaryto notice the principles on which such revisional jurisdiction canbe exercised. Sub-section (3) of Section 401 of the Code ofCriminal Procedure prohibits conversion of a finding of acquittalinto one of conviction. Without making the categories exhaustive,revisional jurisdiction can be exercised by the High Court at theCinstance of a private complainant

(1) where the trial court has wrongly shut out evidence which theprosecution wished to produce,

(2) where the admissible evidence is wrongly brushed aside asinadmissible, D

(3) where the trial court has no jurisdiction to try the case and hasstill acquitted the accused,

(4) where the material evidence has been overlooked either bythe trial court or the appellate court or the order is passed byEconsidering irrelevant evidence, and

(5) where the acquittal is based on the compounding of the offencewhich is invalid under the law.

13. By now, it is well settled that the revisional jurisdiction, wheninvoked by a private complainant against an order of acquittal,Fcannot be exercised lightly and that it can be exercised only inexceptional cases where the interest of public justice requiresinterference for correction of manifest illegality or the preventionof gross miscarriage of justice. In these cases, or cases of similarnature, 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 thematerial evidence has been overlooked either by the trial Court or by theappellate Court or the order is passed by considering irrelevant evidence,the revisional jurisdiction can be exercised by the High Court. In the H

matter on hand, as already mentioned, material evidence has beenoverlooked by the Trial Court and the High Court was incorrect inobserving that the witnesses have deposed for the first time before thecourt. We have already clarified that the contradictions and improvementswere minor in nature, e.g. mainly with regard to weapons used. In thematter on hand, the presence of the witnesses is not in dispute, and thefact that 24 witnesses have suffered injuries cannot be disputed either.Five deaths have also taken place. Curiously, the Courts have observedthat the injuries must have been suffered in a stampede. There is noreason as to why only one group of people would sustain injuries in thealleged stampede, if any. Thus, the theory of stampede also prima faciemay not be available to the defendant having regard to the evidence onrecord.Moreover, the material evidence regarding the charges other thanmurder has also been ignored.

25. Thus, the High Court has failed to consider whether the TrialCourt discarded material evidence in the form of eye-witness testimonyon the issues of murder, attempt to murder and grievous hurt andcompletely overlooked evidence on other charges such as unlawfulassembly and house-burning. Consequently, we find that the High Courthas not given due consideration to the evidence on record to arrive at areasoned conclusion and has thus failed to exercise its revisionaljurisdiction in accordance with established principles. In our opinion, itwould be appropriate for the High Court to undertake proper considerationof the material of the matter once again with due application of thejudicial mind to find out as to whether the trial Court’s order has causedgross miscarriage of justice, manifest illegality or perversity.

26. Before parting with the matter, we hasten to add that anyobservations made in thisorder will not influence the High Court indeciding the revision petition on merits. With these observations, theappeal is allowed, the impugned judgment and order of the High Courtdated 30.06.2004 passed in C.R.R. No. 765 of 2002 is set aside and thematter is remitted to the High Court to decide the revision petition onmerits, in accordance with law.

Devika Gujral

Appeal allowed.

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