Barin Ghosh, C.J. -
(1.) THE conviction in the instant case has been awarded on the basis of evidence given by a child witness, who was ten years old at the time of incident and 11 years old at the time of deposition. The First Information Report, in the instant case was lodged by the husband of the victim. It was alleged in the First Information Report that the appellant and his companion caused the death of the deceased. In course of evidence, the informant appeared as PW 4 and stated that he came to learn from his daughter, the child witness, PW1, that the death of his wife was caused by the appellant and his brother, which information was not furnished in the First Information Report. The child witness namely, PW 1 disposed that the appellant and his brother entered their house at 8:00 am in the morning, when the mother of the witness offered the appellant and his brother Tea and at that time, the brother of the appellant caught hold of the hands of her mother and the appellant gave a blow to her mother and as a result, she died and at the same time, appellant gave a blow to her, which made her unconscious and she regained consciousness in the hospital, which according to the evidence of the said witness was regained 14 days after the incident. In the circumstances, the court below did not apply its mind at all, as to how the informant, PW -4, came to learn that it was the appellant and his companion, who caused the death, as was reported in the First Information Report. Further if PW 4 came to learn from PW 1 that the appellant and his brother caused the death, why the name of the brother did not figure in the first information report was also not considered by the court below. The brother of the appellant, upon being summoned under Section 319 Cr.P.C., and thereupon being tried, has been exonerated by the court below, whereas, the appellant has been held guilty only on the basis of the evidence given by PW 1. PW 4 stated in course of his evidence that on the fateful day, he went to the school of his son and thereafter, he had a heir cut and subsequent thereto, he returned to his home, when the school bus, which takes his daughter to school, had already arrived and two servants were opening the shop. He stated that his shop and his residence are situate side by side. He stated that when he entered the house, he found the dead body of his wife and also found that his daughter is lying unconscious on the double -bed situated in the bedroom. On his enquiry, he stated that PW 1 told him about the involvement of the appellant, and his brother. If PW 1 was unconscious, how she responded to the enquiry of PW 4 was not attempted to be ascertained by the court below. None of those two servants of PW 4 was called to depose. PW 1, the daughter of PW 4 deposed that she regained consciousness in the hospital.
(2.) She also stated in course of her evidence that she regained her consciousness 14 days after the incident. In the circumstances, the logical conclusion would be that prosecution utterly failed to establish that at the time of lodgment of the First Information Report, there was any means by which PW 4 could come to learn that the death has been caused by the appellant. The evidence as was lead, could not in the circumstances, even if the evidence tendered by a child is believed to be correct, could put home the charge against the appellant. The alleged motive was refusal by PW 4 to give remission of a loan of Rs. 21,000/ - ; taken by the appellant; to reemploy the appellant; and to give a further loan of Rs. 15,000/ - to the appellant. Some evidence was brought on record to show that the appellant was indebted to PW -4 to the tune of Rs. 21,000/ - , but no evidence, except oral assertions by the PW -4, was brought on record to establish claim of remission of the said loan; and grant of reemployment and further loan. In the circumstances, we allow the appeal, set aside the judgment and order under appeal and set free the appellant. The appellant is in jail. Let him be set free forthwith. Let a copy of this Judgment be sent to the court below along with lower court record, with direction upon the court below to ensure that the appellant is set free forthwith.;