NIHERKANA SINGHA ROY Vs. REKHA SINGHA ROY

JUDGEMENT

(1.) This revisional application has been filed under Section 401 read with Section 482 of the Cr. P.C. The case of the petitioner is that Kalyani Police Station Case No. 68/92 dated 25.04.92 under Sections 302/201/34 of the Indian Penal Code was started suo moto by the Officer-in-Charge of the Kalyani P.S. wherein it has been stated that on 23.2.1992 at about 23.50 hours he got an information over telephone that the house of Prabir Singha Roy was gutted. Accordingly Police rushed to the spot and thereafter breaking open the door of that house with the help of firemen they rescued one Prabir Singha Roy and Rekha Singha Roy. Prabir Singha Roy was completely burnt. Both the injured were sent to J.N.M. Hospital, Kalyani. On the next day information was received from the ward master of the said hospital that Prabir Singha Roy died, the dead body was sent for post mortem examination. On 25.4.1992 the post mortem report was received wherein it was opined by the Doctor that said Prabir Singha Roy was throttled to death first and thereafter he was burnt. On the basis of the said report the complainant lodged the F.I.R. against Rekha Singha Roy and others alleging therein that Rekha Singha Roy in conspiracy with others committed the murder of her husband Prabir Singha Roy. Case was investigated and after investigation charge- sheet under Sections 302/201/34 of the Indian Penal Code was submitted against Rekha Singha Roy, Gora @ Sankar Das Sarkar and Gouranga Baidya who was shown as absconder. The case was tried in the Court of the Additional Sessions Judge, First Court, Krishnanagar who was pleased to frame charge against Rekha Singha Roy and Gora @ Shankar Das Sarkar under Section 302/34 of the Indian Penal Code. During trial twenty witnesses were examined. But although there were sufficient materials against the accused persons the learned Additional Sessions Judge, by his order dated 26.2.2003 was pleased to acquit the accused persons. Being aggrieved and dissatisfied with the said order of acquittal the petitioner, who is the mother of deceased Prabir Singha Roy, filed the revisional application claiming therein that the order of acquittal as passed by the learned Additional Sessions Judge, is bad and perverse in nature and suffers from material illegality. She has prayed that the said order should be set aside. In the body of the revisional application it has been stated by the defacto- complainant that her son Prabir Singha Roy, since deceased, used to reside at U.S.A. and there he was married with a foreign lady. As the marriage did not last long, Prabir returned back to Kalyani where he again married Rekha who was at that time working as a maid servant in the house of the petitioner. It has been claimed that over this matter trouble was going on and ultimately Prabir started living in a separate house along with Rekha and his minor son aged about two and half years. The petitioner, the mother of the deceased has claimed that Rekha and his relations used to create pressure on Prabir in orderto grab his entire property. It has been claimed by the petitioner that Rekha with the active assistance of Gora and Gouranga actually committed murder of Prabir. She has claimed that the learned Additional Sessions Judge, was not at all justified in holding the accused persons not guilty of the offence charged with although there were sufficient evidence in orderto prove the guilty of the accused persons.

(2.) I have already pointed out that this revisional application has been filed by the mother of the deceased challenging the order of acquittal. The scope of this revisional Court in such an application is undoubtedly very limited. In this respect the decision, as reported in AIR 1968 Supreme Court page 707, Mahendra Pratap Singh v. Sarju Singh and Another is relevant. In the said decision it was clearly held by the Hon'ble Supreme Court that there is no scope for the High Court in re-weighing the evidence in a revision as it is permissible in case of an appeal. There is clear distinction in between the jurisdiction of the appellate Court and the revisional Court in case or order of acquittal has been challenged. In a revisional application High Court can only interfere where there is manifest illegality in the judgment of this Court of Sessions ordering the acquittal orthere must be a gross miscarriage of justice, it is the settled principle that in a revisional application, challenging the order of acquittal, the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappre elation of evidence. In the light of the legal principle as discussed above, let us now consider as to whether the learned Sessions Judge was justified in passing the order of acquittal and whether it is permissible for this Court to interfere into the matter. I have considered the entire evidence on record. It appears that there is only one alleged eye witness in this case. He is P.W.-10 Arijit Singha Roy. This witness is the son of the deceased. Admittedly at the time of the incident he was aged about two and half years and when be deposed before the Court he was aged about twelve years. It is also the admitted position that since the date of incident this witness was in the custody of the present petitioner that is the mother of the deceased. It is undoubtedly true that order of conviction in a criminal case can be passed on the basis of the evidence of a child witness. But at the same time it must be seen as to how far the evidence of the child should be believed. It is always open for the child to be influenced or tutored by some persons interested in the case. More particularly, so far as the present case is concerned, it is the admitted position that this P.W. 10 was at the material time aged only two and half years. It is always risky for a Court to pass an order of conviction on the basis of the statement of a child witness without any material corroboration whatsoever. I have already pointed out that this P.W.-10, after the incident, started living with the present petitioner, that is the mother of the deceased. It is practically impossible for a child aged about two and half years to remember distinctly about an incident which allegedly took place in the dead of night. It is also clear from the evidence that immediately aftet the incident this P. W.-10 did not disclose about the alleged incident that his mother with the help of others caused the death of his father by way of strangulation and thereafter set fire on the dead body of his father. Had it been the case, then it is expected that this witness would have immediately stated all these things at least to her grand mother, that is the present petitioner, if-that was narrated at that time then Police would have immediately started a case of murder instead of waiting fortwo months forthe receipt of the post mortem report. The present petitioner has been examined as P.W.-6. She in her evidence has claimed that P.W.-10 Arijit informed her about the incident immediately when he came to her house. If that is so, then I fail to understand as to what prompted this P.W.-6 to remain silent at least for two months. It is expected that when she allegedly heard about this incident from the P.W. 10, then she should have informed the Police about the same. She has stated in her cross-examination "I stated to the Police during investigation that I came to know from Arijit-my grand son that Rekha and Gouranga Killed my son by throttling." But if we look into the evidence of the P.W.18 Sekhar Bose, the I.O. of this case, then it will appear that he clearly stated that P. W.6 Rekha did not State before him that she came to know from Arijit, her grand son, that Rekha and Gouranga killed her son by throttling. This shows that this P.W.6 made a false statement before the Court. The statement in this regard, must be held to be an after thought forthe reasons best known to the P.W.6. The evidence of the P.W.6 in this respect appears to be highly suspicious in nature. Consequently it is difficult for a Court also to place reliance upon the evidence of the P.W. 10 so far as his claim regarding his witnessing the incident in question. There is reason to believe that this P.W.-10 has been tutored to depose falsely before the Court and as such, I am of opinion that the learned Court below was perfectly justified in not placing any reliance on the evidence of the P.W.-10. The alleged incident is undoubtedly very serious in nature and unfortunate too. But at the same time it is not proper that without any sufficient evidence the accused persons should be convicted forthe offence of murder.

(3.) I have already pointed out that after receiving the Post Mortem Report the Police Officer started the case under Section 302 I.PC. If we look into the Post Mortem Report then it will appear that the Doctor opined that cause of the death was the effect of throttling and the burnt was post mortem in nature. So, it appears that the Doctor was of the opinion that at first Prabir was throttled to death and thereafter his dead body was put to fire. But if we look into the evidence of the members of the Fire Brigade as well as the evidence of the Ward Master of the Hospital then it will appear that after Prabir was rescued from that house he was admitted in the hospital where he received treatment. This shows that Prabir was alive when he was admitted in the hospital. Surprisingly, no paper from the hospital has been brought into the record at the time of trial. There is no explanation for that. But the fact remains that Prabir on that night was taken to the hospital and admitted there. This necessarily mean that he was alive at that time. So the opinion of the post mortem Doctor that the death of Prabir was first caused by strangulation and thereafter the dead body was set to fire has got no leg to stand upon. The opinion of the post mortem Doctor in this respect appears to be misleading. Some suggestions have been given to the post mortem Doctor regarding his interested ness in connection with this case. But in.absence of any clear cut evidence of this point, it is not possible for us to reach a definite conclusion. But, the fact remains that the opinion of the post mortem Doctor is clearly confusing and to my mind it should not be relied upon.