ORDER: This revision petition at the instance of P.W.3, is directed against the order of acquittal of seventeen accused and discharge of A6 and A14 in C.C.No. 76 of 1986 on the file of Judicial Magistrate of First Class, Tirur. Prosecution case is that the nineteen accused committed offences under Secs.143 , 147 , 148 , 447 and 427 read with Sec.149, I.P.C., by entering on the property of P.W.3 at or about 2 a.m. on 5.12.1985 and demolishing the compound wall. P.Ws.3 to 6speak to the occurrence. Learned Magistrate observed that, ‘if the evidence of P. Ws.4 and 5 is to be believed, then the version of P.Ws3 and 6 cannot be believed and vice versa’. If there are two versions, it means not, that both are false. Court has to sift the chaff from the grain; unless the Court thinks that both versions are not reliable, the short cut path to acquittal is not the legitimate path; that precisely is the path the Magistrate followed. He again observed that P.W.6 did not see any stick in the hands of Ali. Occurrence was at 2 a.m. There could not have been very bright lights, and perhaps the witnesses were only half awake. Perfect precision in details, is not the virtue of every witnesses. Powers of observation and powers of retention vary from witnesses to witness, and dimensions of perception too, vary. In Abdul Gani v. State Abdul Gani v. State A.I.R. 1954 S.C. 31: 55 Crl.L.J. 323Supreme Court deprecated the tendency to take the easy course of holding the evidence discrepant and rejecting the whole case as untrue. In State of U.P. v. Anil Singh State of U.P. v. Anil Singh A.I.R. 1988 S.C. 1998 the Court reiterated: “It is our experience that invariably witnesses and embroidery to the prosecution case, for fear of being disbelieved. But that is no reason to throw the case overboard, if true, in the main…. It is necessary to remember that a Judge does not preside over a trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape - both are public duties”. Grounds for acquittal are not valid. 2. Learned counsel for accused submitted that the order could be sustained on other grounds. Question is whether the reasons stated by the Magistrate justify this findings. A Judge also presides to see that a guilty man does not escape - both are public duties”. Grounds for acquittal are not valid. 2. Learned counsel for accused submitted that the order could be sustained on other grounds. Question is whether the reasons stated by the Magistrate justify this findings. The revisional power is exercised not only over his decision, but also over the decision making process. The question is not whether the order could be justified for other reasons, but whether such reasons were in his mind. 3. Counsel further submitted that, in a revision against the order of acquittal, interference would be justified only on limited grounds. True, and such grounds exist in this case. Material evidence was shut out from consideration, and the Magistrate misdirected himself on law, persuading himself to the view that if there are two versions, both are unworthy of credit. I hasten to add that I am not any opinion on the merits. But, I am satisifed that the order is unsustainable, as it was made on wrong premises of law and without application of mind to the evidence on record. 4. Matter does not end there. Two of the accused were discharged, after charges were framed against seventeen others, and at the end of the trial. The Code gives very clear indication (Sec.239) when an order of discharge is to be made. Discharge is to precede and not follow trial. Rule 16 of the Criminal Rules of Practice also does not appear to have been in the view of the Magistrate. One gets the impression that the case of accused 6 and 14 was also tried in the mind of the Magistrate. Order of Court below is unsustainable, and is set aside. The trial Magistrate will take back the case on file, and proceed afresh in accordance with law. 5. In the result, Criminal Revision Petition is allowed. B.S. ----- Petition allowed.