IMPORTANT POINTS
Bar on High Court u/s 401(3) does not restrict the power of the Supreme Court under Article 136.
In cases involving a large number of offenders and victims, evidence of only two or three witnesses giving consistent account of the incident would be sufficient.
Variations in statements not going to the root are immaterial.
Issue of unlawful assembly and common object of the unlawful assembly generally can be determined based on the evidence on record. (Para 20)
Ocular evidence will prevail upon medical evidence.
Revisional jurisdiction should be exercise only in exceptional cases, such as 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.

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 the houses of IPF members, including the party leader Badal Malik, assaulted IPF members and broke into the houses of the locality and destroyed household articles, apart from stealing an amount of Rs.700/- and snatching a pair of gold earrings. In the assault on IPF members, five persons expired and 24 persons were seriously injured.

3. The first information came to be lodged by Menoka Malik (PW1/appellant no.1 herein) before Memari Police Station, Burdwan District, which came to be registered in Case No. 82/1993 dated 31.05.1993 for the offences punishable under Sections 147, 148, 149, 342, 448, 325, 326, 436, 379, 307 and 302 of the Indian Penal Code.

4. Charges were framed 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 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 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