TaxTMI 
TaxTMI 
2018 (8) TMI 2141
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.... 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 250-300 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. 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 fo....
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....etition, 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 non-determination 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 reach a particular conclusion, and would also complicate the issue in the g....
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....an 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. 9. In the case of State of Rajasthan v. 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 thi....
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....ulted by Jiten Kora (A-1/R-2 herein), Kena Kora (A-7/R-8 herein), Bhola Mukherjee (A-77/R-78 herein), and Sitaram Makar (A-70/R-71 herein), with deadly weapons such as tangi, bogi, and kencha. Pranab Bouri (A-40/R-41 herein), struck Dilip Pakrey with a ballam. Sakti Gadi (A-15/R-16 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 (A-8/R-9 herein) with a shavol and by one Santana Majhi (a reference to Sanatan Mandi, A-44/R-45 herein) by a bamboo lathi. PW5 further stated that Manik Hazra (deceased) was assaulted by Sudeb Hati (a reference to Sudeb Hazra, A-30/R-31 herein), and that one Rajib Kora cut off Manik Hazra's penis. 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 11-11.30 am, around 100-150 persons armed with lathis, rods, sabol, tangi, etc.....
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.... Nayak (deceased) was dragged out of PW9 Mantu Mal's house and assaulted by Sitaram (A-70/R-71 herein), Abhoy (A-69/R-70 herein) and others. Suko Kora (A-53/R-54 herein) 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, 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 Ors. 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 variation is found. The presence of the witnesses on the spot has not been seriously doubted by the defence during the cross-examination. It is but natural to have certain minor variations in the evidence of eye-witnesses, when a large number of people had gathered to assault a smaller group of people....
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....3. 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 ma....
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....uthful 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 eye witnesses in the ....
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....as house 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. v. 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 revisional jurisdi....
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....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. 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 di....