9911796707
TMI Blog2018 (8) TMI 2141X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Punjab, [ 2003 (7) TMI 704 - SUPREME COURT] , Narain v. State of Madhya Pradesh, [ 2004 (2) TMI 742 - SUPREME COURT] and KAMESHWAR SINGH AND ORS. VERSUS STATE OF BIHAR AND ORS. [ 2018 (4) TMI 1965 - SUPREME COURT] . In Krishna Mochi v. State of Bihar, [ 2002 (4) TMI 971 - SUPREME COURT] , this Court highlighted the dangers of applying the doctrine in the Indian scenario holding that 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. 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. It is found 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 [ 1964 (5) TMI 45 - SUPREME COURT] . There are as many as 24 injured eye witnesses in the case and their presence cannot be doubted. In this situation, it is found that the High Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PLR Chambers and Co. JUDGMENT 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 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Procedure, the High Court could not have altered the finding of acquittal into one of conviction, because of what has been stated in Sub-section (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 Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Badal Malik on being threatened by some CPI(M) workers. After some time, around 200-250 CPI(M) workers, including Harigopal Goswami (A-80/R-81 herein), Ram Tah (A-68/R-69 herein) and Satya Chakroborty (A-71/R-72 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, A-28/R-29 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chi Hati (possibly Kartik Hazra, A-28/R-29 herein, see supra). The IPF persons started coming out one by one and got assaulted. Sitaram Makar (A-70/R-71 herein), Abhoy Roy (A-69/R-70 herein), one Sakti Duley, Joydev Duley, Joydev Hati (Joydeb Hazra, A-29/R-30 herein), Sudeb Hati (Sudeb Hazra, A-30/R-31 herein), one Khudi Tah, Ganesh Kshetrapal (A-39/R-40 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 (A-70/R-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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence 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 non-consideration 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 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 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
