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

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

Signature Not Verified

Digitally signed by
VISHAL ANAND

acquittal passed by the Sessions Judge at Burdwan dated 15 th

Date: 2018.08.28
16:47:57 IST
Reason:
 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.
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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
 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

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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
 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 respondent­
accused, 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

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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

 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/R­

41 herein), struck Dilip Pakrey with a ballam. Sakti Gadi (A­

15/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/R­

9 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.
 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 (A­

70/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, A­

29/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/R­

71 herein) with a ballam, and by Sudeb Hari (Sudeb Hazra, A­

30/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 cross­

examination. 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.”
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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

 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

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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

 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 non­

furnishing 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]