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TMI Blog2002 (10) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... agabandhu Samal (D.W. 1) on the other near Motto Hat in connection with occupation/construction of a shed in a market area. When Jagabandhu suddenly got up his head struck against a bamboo protruding into the thatch and he sustained some injury. Subsequently, when Jairam Das (PW-1), Gagan Das (PW-5) and the deceased proceeded towards their village near Balabhadrapur Sasan, they found that the accused persons armed with lathi, tents etc. were coming. Being afraid, the deceased and his companions ran towards to the village. Gagan Das (P.W. 5) went inside the house of Sikhar Bal whereas the other three concealed themselves inside the house of Nilakantha Rath (P.W. 8). The house was surrounded by the accused persons who dealt blows on the door and walls of the house and some of them entered inside the house. Accused Panchanan (appellant 10 in the present appeal) and Subash Samal (appellant 7 in the present appeal) dragged the three persons and assaulted them. At that time, one of the accused persons shouted that police personnel were coming and subsequently all the accused persons fled away. PW-5 who saw the incident through an opening in the door leaf of the house of Sikhar Bal lodged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt heard the appeal again and by the impugned judgment has upheld the conviction of 10 and acquitted the rest of the accused. It is to be noted that in respect of Krishna Mohanty (accused No. 17) the High Court noticed that there was no finding recorded by the Trial Court either finding him guilty or otherwise, and therefore it was observed that it must be deemed that the said Krishna Mohanty had been acquitted by the Trial Court. The High Court by its impugned judgment specifically directed acquittal of four of the accused persons i.e. appellants 1, 2, 3 and 15 before it. The judgment of the High Court dated 16.7.1999 is the subject matter of challenge in this appeal. 8. At the Special Leave Petition stage because of non-surrender of accused appellant No. 7, Subash Samal, the petition was dismissed by order dated 18.7.2000, so far as he is concerned. 9. In support of the appeal, Mr. S. Misra, learned counsel has submitted that though by its previous judgment this Court had required the High Court to analyse the evidence vis-a-vis every accused, it has not been done. In fact, as was done previously, the High Court has proceeded on generalized basis. The main eye witnesses PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and credible. Merely because they belonged to a particular political party there is no reason as to why they would falsely implicate the accused persons. No foundation for falsely implicating them has been established. All the accused persons have been named. It has been clearly brought on evidence that they were armed while chasing deceased and the injured witnesses and were shouting to bring them out when they had taken shelter in the house of Sikhar Bal. Merely because Sikhar Bal has not been examined, that does not in any way dilute the evidence of eye witnesses. Further, much has been made out of the non-examination of Sanatan. It has been clearly brought on record that his whereabouts are not known and, therefore, he could not be examined. Further, PW 7 has not stated that except two accused persons whom he had named and identified, others were not present. He has never stated that the others were not there, and only stated that he knew the name of two persons. The common intention has been clearly established. Merely because some of the accused persons have been acquitted, that does not render the evidence of the eye-witnesses suspect. Two Courts have categorically found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' 1952CriLJ547 . We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel. 15. Again in Masalti and Ors. v. State of U.P. [1964]8SCR133 this Court observed: (p. 209-210 para 14): But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab 1956CriLJ827 ). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because 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 respect as well. The evidence has to be shifted 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 grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972CriLJ1302 and Ugar Ahir and Ors. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava [1992]1SCR37 ]. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admin.). 1978CriLJ766 ]. Vague hunches cannot take place of judicial evaluation. A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh AIR 1988 SC 1988. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portance and primacy of the quality of the trial process. Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the seals for a cumulative evaluation. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. what degree of probability amounts to 'proof' is an exercise particularly to each case. Referring to probability amounts to 'proof' is an exercise the inter-dependence of evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common' it must be shared by all. In other words, the object should be common to the persons, who compose the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti. 25. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplished the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit and offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by (sic) one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of the them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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