MENOKA MALIK AND OTHERSversusTHE STATE OF WEST BENGAL AND OTHERS

                         [2018] 10 S.C.R. 707                           707


                MENOKA MALIK AND OTHERS                                 A
                                 v.
         THE STATE OF WEST BENGAL AND OTHERS
                 (Criminal Appeal No. 1198 of 2006)
                        AUGUST 28, 2018                                 B
                 [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 of
                                                                        C
sharp and pointed weapons – Death of 5 persons and serious
injuries to several persons – Prosecution case was that the offender
party broke into the houses of the locality, destroyed household,
stole valuables and set the houses on fire and thereafter assaulted
complainant party members causing death of 5 persons and serious
injuries to 24 persons – Acquittal by trial court on benefit of doubt   D
– High Court found no error in acquittal order – Complainant’s
appeal against acquittal – Held: The observation of courts below
that the injuries must have been suffered in a stampede is not
convincing as there was no reason for only one group of people to
have sustained injuries in the alleged stampede – The contradictions
                                                                        E
and improvements were minor in nature – It is 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
– In such a scenario, it is not possible to meticulously observe all
the actions of each and every accused – The overall evidence of
these witnesses, prima facie, appeared untainted – Certain              F
exaggerations, improvements and embellishments would not make
the entire prosecution story doubtful – There were as many as 24
injured eye witnesses in the case and their presence cannot be
doubted – Presence of the witnesses on the spot was also not
seriously doubted by the defence during the cross-examination – In
                                                                        G
this situation, the High Court did not apply 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 – High Court also did not at all consider the
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                                707
708            SUPREME COURT REPORTS                      [2018] 10 S.C.R.


A     evidence concerning charges other than murder – Although, the
      charges were 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 – High Court thus failed to exercise its revisional
      jurisdiction in accordance with established principles – Matter
B
      remitted to High Court to decide the revision petition on merits in
      accordance with law.
            Revision: Exercise of revisional jurisdiction – Where the
      material evidence was overlooked either by the trial Court or by
      the appellate Court or the order is passed by considering irrelevant
C     evidence, the revisional jurisdiction can be exercised by the High
      Court – Penal Code, 1860.
            Evidence: Embellishments or exaggerations in the testimony
      – Evidentiary value of the testimony – Held: The testimony of a
      witness cannot be discarded in toto merely due to the presence of
D     embellishments or exaggerations – The doctrine of falsus in uno,
      falsus in omnibus, which means “false in one thing, false in
      everything” is inapplicable in the Indian scenario,where the
      tendency to exaggerate is common – Doctrine.
            Evidence: In cases involving a large number of offenders and
E     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.
            Evidence: Ocular and medical evidence – Conflict between
      the ocular testimony and the medical evidence – Medical evidence
F     cannot override the evidence of ocular testimony of the witnesses –
      Ocular testimony to prevail – Where the eye witnesses account is
      found to be trustworthy and credible, medical opinion pointing to
      alternative possibilities is not accepted as conclusive.
             Constitution of India: Art.136 – Scope of – Held: The
G     restriction as contained under s.401(3) of the Cr.P.C. on the High
      Court cannot restrict the powers of the Supreme Court under Art.136
      of the Constitution – Code of Criminal Procedure, 1973
      – s.401(3).

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   MENOKA MALIK AND OTHERS v. STATE OF WEST BENGAL                      709
                    AND OTHERS

      Allowing the appeal, the Court                                    A
      HELD: 1. It is open for the Supreme Court to review the
entire material and there is no limitation on its 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         B
cannot 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.                         C
      2. In cases 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. The testimonies of Pws 5, 7 and 14 shows
that there was no significant variation or major contradiction in       D
their testimonies. The presence of the witnesses on the spot
was not seriously doubted by the defence during the
cross-examination. The Court should not expect from the
witnesses to depose in a parrot-like fashion. However, the
overall evidence of these witnesses, prima facie, appears to be
untainted. It is also evident that these testimonies were               E
consistent on material facts, such as that on the day of the
incident, CPI(M) workers threatened IPF workers, who hid in
PW2’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’s house, that house was          F
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 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’s penis, which was found to be       G
intact upon medical examination. However, such embellishments
and inconsistencies do not go to the root of the matter. It is the
duty of the Court to separate the chaff from the grain. There are

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710           SUPREME COURT REPORTS                    [2018] 10 S.C.R.


A     as many as 24 injured eye witnesses in the case and their
      presence 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 Pradesh
B          AIR 1957 SC 366 : [1957] SCR 657 ; Ugar Ahir v.
           State of Bihar AIR 1965 SC 277 ; Sucha Singh v. State
           of Punjab, (2003) 7 SCC 643 : [2003] 2 Suppl. SCR
           35 ; Narain v. State of Madhya Pradesh, (2004) 2 SCC
           455 : [2004] 2 SCR 82 ; Kameshwar Singh v. State of
           Bihar, (2018) 6 SCC 433 ; Krishna Mochi v. State of
C          Bihar, (2002) 6 SCC 81 : [2002] 3 SCR 1 ; Ranjit Singh
           v. State of Punjab (1974) 4 SCC 752 ; State of Punjab
           v. Hari Singh (1974) 4 SCC 552 – relied on.
            3.1 Although, the charges had been framed on questions
      such as burning houses, unlawful assembly, etc., the evidence on
D     these questions was entirely overlooked and no finding was made
      by the trial Court as well as the High Court. 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, the burnt articles were seized and
E     produced before the Court. [Para 18] [722-C-D]
            3.2 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 matter on hand, 36 eye-witnesses were available. According
F     to the case of the prosecution, all the accused came in a group to
      the house of PW2, and PW9, 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
G     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. The
      non-consideration of such vital issues by the High Court, without
      which a question before the Court could not have been
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   MENOKA MALIK AND OTHERS v. STATE OF WEST BENGAL                    711
                    AND OTHERS

satisfactorily determined, has led to injustice of a serious and      A
substantial character, warranting interference of this Court and
remand of the matter to the High Court for rehearing. With regard
to the conflict between the ocular testimony and the medical
evidence, the High Court has ignored the fact that lathis were
also used while assaulting along with sharp edge weapons.
                                                                      B
Moreover, it is by now well settled that the medical evidence
cannot override the evidence of ocular testimony of the witnesses.
[Paras 19, 20, 21] [722-E-H; 723-C]
      State of U.P. v. Krishna Gopal (1988) 4 SCC 302 :
      [1988] 2 Suppl. SCR 391 – relied on.
                                                                      C
       4. Where the material evidence was 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, material
evidence was overlooked by the trial court and the High Court
was incorrect in observing that the witnesses deposed for the         D
first time before the court. Five deaths took place. The Courts
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    E
having regard to the evidence on record. [Paras 24] [724-G-H;
725-A, B-C]
      Sheetala Prasad v. Shree Kant (2010) 2 SCC 190 :
      [2009] 16 SCR 686 – relied on.
                          Case Law Reference                          F
      [1996] 2 SCR 115            relied on           Para 8
      [2011] 6 SCR 988            relied on           Para 9
      [1964] SCR 133              relied on           Para 11
      [1957] SCR 657              relied on           Para 14         G

      AIR 1965 SC 277             relied on           Para 14
      [2003] 2 Suppl. SCR 35      relied on           Para 14
      [2004] 2 SCR 82             relied on           Para 14
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712             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A           (2018) 6 SCC 433                relied on              Para 14
            [2002] 3 SCR 1                  relied on              Para 14
            (1974) 4 SCC 552                relied on              Para 15
            (1974) 4 SCC 752                relied on              Para 15
B           [1988] 2 Suppl. SCR 391 relied on                      Para 21
            [2009] 16 SCR 686               relied on              Para 23
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1198 of 2006.
C           From the Judgment and Order dated 30.06.2004 of the High Court
      at Calcutta in C.R.R. No. 765 of 2002.
            Anil Nauriya, Ms. Sumita Hazarika, Dibakar Bhattacharjya,
      Ms. Ipsita Behura, Jyotirmoy Adhikari, Brij Bhushan, Ms. Pankhuri
      Shrivastava, Rupesh Kumar, Suhaan Mukerji, Ms. Astha Sharma, Amit
D     Verma, Ms. Kajal Dalal (for M/s. PLR Chambers And Co.), Advs. for
      the appearing parties.
            The Judgment of the Court was delivered by
             MOHAN M. SHANTANAGOUDAR, J. 1. The instant appeal
      arises out of the judgment and order dated 30th June, 2004 passed in
E     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 15thDecember, 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,
F     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
G     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,
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   MENOKA MALIK AND OTHERS v. STATE OF WEST BENGAL                             713
      AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]

including the party leader Badal Malik, assaulted IPF members and broke        A
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               B
(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.
                                                                               C
       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 1-23, 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 theprosecution’s case, and PW42 claimed
to not recollect theincident on account of mental sickness.                    D

        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         E
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 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         F
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 non-recovery 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         G
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
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714             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     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
B     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
C     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
D     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 thebasis
      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
E     suggested by the appellants was not a sufficient reason to remand the
      case. This wasbased 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 given situation,
      where a large number of persons were involved but no evidence existed
F     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
G     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.


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   MENOKA MALIK AND OTHERS v. STATE OF WEST BENGAL                              715
      AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]

      Preliminary Issue:                                                        A
       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,              B
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 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          C
      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          D
      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         E
      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      F
      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               G
      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.”


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716             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A            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.
B
             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
C     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:
D            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 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.
E
             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
F     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.,
G     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 200-250
      CPI(M) workers, including Harigopal Goswami (A-80/R-81 herein), Ram
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   MENOKA MALIK AND OTHERS v. STATE OF WEST BENGAL                          717
      AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]

Tah (A-68/R-69 herein) and Satya Chakroborty (A-71/R-72 herein)             A
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 KachiHati (a reference to Kartik Hazra, A-28/R-29 herein).
                                                                            B
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      C
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
                                                                            D
further stated that Manik Hazra (deceased) was assaulted by Sudeb
Hati (a reference to SudebHazra, A-30/R-31 herein), and that one Rajib
Kora cut off Manik Hazra’s penis.
       PW7, NemaiHazra 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,              E
Uday Hazra, one Madan Hazra (referring to PW43, MadauHazra) and
Narayan Hazra (referring to PW39, HarayanHazra) 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. assembled nearby, upon which
Badal Malik left the house and did not return. Soon, the mob outside        F
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 (A-30/R-31              G
herein) 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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718            SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A           In his cross examination, PW7 stated that he did not know of any
      provocation for the incident. He also stated that around 40-50 persons
      had hidden inside Badal Malik’s house. He further stated that he was
      beaten severely by the mob, and received 8-10 lathi blows, one rod blow,
      and was also assaulted by tangi, sabol, etc.
B            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 (A-56/R-57 herein)
C     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, A-28/R-29 herein, see supra). The IPF persons
      started coming out one by one and got assaulted. Sitaram Makar (A-70/
D     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/
E     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 MantuMal’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
F     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 others with a lathi,
G     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
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   MENOKA MALIK AND OTHERS v. STATE OF WEST BENGAL                           719
      AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]

presence of the witnesses on the spot has not been seriously doubted by      A
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 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
                                                                             B
all the actions of each and every accused. The Court also should not
expect fromthe witnesses to depose in a parrot-like 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      C
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      D
by CPI(M) persons. All the witnesses may not be consistent on each
and every detail, such 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         E
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         F
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 inuno, falsus
in omnibus, which means “false in one thing, false ineverything” has         G
been held to be inapplicable in the Indian scenario, where the tendency
to exaggerate is common. This Court hasendorsed the inapplicability of
the doctrine in several decisions, such as Nisar Ali v. State of Uttar
Pradesh, AIR 1957 SC 366, UgarAhir v. State ofBihar, AIR 1965
SC 277, Sucha Singh v. State of Punjab, (2003) 7 SCC 643, Narain
                                                                             H
720            SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A     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
B           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.
C           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
D           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
E           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
F           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 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
G           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

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   MENOKA MALIK AND OTHERS v. STATE OF WEST BENGAL                          721
      AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]

prosecution story should not be doubted. In Ranjit Singh v. State of        A
Punjab, (1974) 4 SCC 752, 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      B
      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         C
      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   D
      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        E
      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       F
      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   G
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.
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722             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A            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 case and their presence cannot be doubted.In this situation, we
      find that the High Court has not applied its judicial mind in determining
B
      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
C     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
D     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
E     determine those aspects based on the evidence on record. In the matter
      on hand, 36 eye-witnesses 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
F     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.
G            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
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   MENOKA MALIK AND OTHERS v. STATE OF WEST BENGAL                                723
      AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]

failed to consider whether the trial Court brushed aside material                 A
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
                                                                                  B
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                  C
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].               D
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
jurisdiction must be exercised by the High Court only in exceptional              E
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        F
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          G
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.
                                                                                  H
724            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A            23. In the case of Sheetala Prasad vs. Shree Kant (2010) 2
      SCC 190, this Court noted the principles on which the revisional
      jurisdiction can be exercised. The relevant observations of this Court
      are as under:
            “12. The High Court was exercising the revisional jurisdiction at
B           the instance of a private complainant and, therefore, it is necessary
            to notice the principles on which such revisional jurisdiction can
            be exercised. Sub-section (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
C           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
D           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
E           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,
F
            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.”
G                                                         (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
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   MENOKA MALIK AND OTHERS v. STATE OF WEST BENGAL                            725
      AND OTHERS [MOHAN M. SHANTANAGOUDAR, J.]

matter on hand, as already mentioned, material evidence has been              A
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
                                                                              B
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        C
record.Moreover, 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 eye-witness testimony
on the issues of murder, attempt to murder and grievous hurt and              D
completely overlooked evidence on other charges such as unlawful
assembly and house-burning. 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     E
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 thisorder will not influence the High Court in           F
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. 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.                                               G


Devika Gujral                                               Appeal allowed.



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