Ashim Kumar Banerjee. J. - (1.) 1. BACKDROP : Defacto complainant approached this Court against the order of acquittal passed by the Additional Sessions Judge (2nd Fast Track Court) Hooghly 2 dated June 29, 2004 in Dhani Akhali Police Station case no. 95 of 1993 dated June 1, 1993, ultimately culminated in Sessions trial no. 50 of 2003, as against the respondent/opposite parties being respondents nos. 2 to 11. The facts would reveal that one Konka Tudu of village Benathali in the district of Hooghly crossed the political floor and joined B.J.P from C.P.I(M) and offered himself as a candidate in Panchayat ellection. Konka lost the election. As a retaliation, the accused belonging to C.P.I(M) accompanied by 50/60 supporters led by Sadan Shome and Prasanta Goswami armed lathi, ballam raided the house of Konka at about 10.30 a.m on 18th Jaistha corresponding to 1993 and killed Konka who was found dead in his house. 2. EVIDENCE : P.W. 1 (Sambhu Murmu) The witness lodged the complaint to the Police. According to Sambhu as per his statement made to the Police, Konka crossed floor and acquired enmity with his erstwhile political party. As a retaliation the persons belonged to the C.P.I(M) being led by Sadan and Prasanta and accompanied by Sankar Malik, Kochi Porel,Sk. Moral, Amal Master, Tapan Shome, Sakti Bagdi, Sk. Kuddus Mallick, Tarak Master and Dilip Ghosh attacked the house of Konka being 3 armed with lathi and ballam. Sankar, Kochi and others broke open the door of Konka with the help of axe and killed him and then threw the dead body on the railway track. Shambhu watched the entire incident. During trial shambhu was declared hostile. PW-2 & PW-3 (Dr. P.G.Bhattacharya, Haripada Ghosh) The witness, the medical officer deposed that he had held post mortem whereas PW-3 a Constable helped the investigating officer to hold the inquest and identified the dead body to the autopsy surgeon. PW-4 (Tulsi Charan Thakur) The witness was the Assistant Sub-Inspector of Police who seized the wearing apparels of the victim and sent them for forensic examinations, however was not aware of the result of such examination. PW-6,7 and 8 (Ratan Tudu, Monu Tudu and Sovan Tudu) The witnesses are neighbours. PW-9 (A.S.I.D.K. Nandi) The witness recorded the complaint. PW-10 (Smt. Mahia Tudu) The witness was the unfortunate widow of the deceased victim. PW-11 (Sri Kalipada Tudu) The witness was his son. PW-12 (S.I.Satya Prasad Banerjee) The witness recorded the statement of PW-1 and partly investigated the case before he handed over charge to another officer. PW-13 (S.I.D.P.Bakshi) The witness also investigated the case up to June 11, 1993. 3. JUDGEMENT: The learned Additional Sessions Judge analyzed the evidence. According to him, the cause of death was proved by the autopsy surgeon. PW-6,7 and 8 were post occurrence witnesses as they were not present at the time of commission of crime. PW-7 and 9 on being informed about the incident, rushed to the place of occurrence and found the door broke open. They also 5 found blood on the courtyard. They were told that Konka had been taken to the railway track. PW-7 came to know from the villagers that C.P.I(M) supporters were involved in the crime. PW- 6,7 and 8 neither could identify the weapon nor give any personal details as to the involvement of the assailants. PW-10 and 11 however gave details of the incident. The learned Judge however could not rely upon their evidence finding anomaly. According to the learned Judge, the evidence of the mother and son was contradictory and did not find support from the medical evidence with regard to the nature of injury. The learned Judge thus signed the order of acquittal in favour of the accused. 4. PRESENT PROCEEDING: Being aggrieved, PW- 11 the unfortunate son of the victim filed the instant application. 5. CONTENTIONS: Learned Counsel appearing for the petitioner, contended that PW- 6, 7 and 8 were admittedly post occurrence witnesses whereas PW-1, 10 and 11 were ocular witnesses. PW-1 being declared hostile the evidence of PW-10 and 11 6 became more relevant. The learned Judge found contradiction in their evidence which were minor in nature. Such minor anomaly after about 11 years of the incident would be natural and the learned Judge should have taken a sum total of the evidence to find out whether the involvement of the accused were proved through such evidence or not. Mr.Sanat Chowdhury, learned Counsel appearing for the accused, while opposing the application, contended that the evidence of the prosecution witnesses did not inspire confidence in Court. The evidence of PW-10 and 11 being doubtful was rightly not relied upon by the learned Judge. Mr Chowdhury further contended that the investigating officer conducted the investigation in most perfunctory manner. No blood stained earth was seized. The Police also did not seize any arms said to have been used in the crime. Mr. Swapan Kumar Mallick learned Counsel appearing for the State contended that it was unfortunate that the State did not prefer any appeal from the judgment of acquittal. He also contended PW-13 investigating officer ought to have been more vigilant while conducting the investigation. 7 While giving reply, the learned Counsel for the petitioner contended that PW- 10 named the accused who were known to her. Hence the learned Judge should not have rejected the prosecution case in limine. 6. MY VIEW: I have considered the rival contentions. I have also considered the Apex Court decisions cited by Mr. Chatterjee reported in All India 1970 Supreme Court 272 (Khetra Basi Samal v. The state of Orissa) wherein the Apex Court once again spelt out the scope of revisional power being exercised by the High Court in a case of order of acquittal. From the sum total of the evidence it would appear that the PW-10 and PW- 11 were the only witnesses who supported the case of the prosecution as ocular witness. The learned Judge did not rely upon the said evidence in view of the anomaly and in absence of corroboration from the medical evidence. I have perused the evidence. I fully agree with Mr. Mallick that State should have preferred an appeal in the instance case. I am aware that any of my observations made herein would amount to loading of the dice heavily on the Court below in case I pass an order of remand. However, my conscience 8 pricks and I cannot but cheek my temptation to interfere as refusal would be grave in justice. The murder was gruesome. It was committed in the broad daylight when the villagers were obviously present who did not come forward to support the prosecution. PW-10 and 11 lost their next to kin, one of them a rustic village woman and the other a minor boy. Instead of lodging a complaint, out of fear, they rushed for their shelter. After about a decade they came before the Court and deposed. The minor anomalies appearing therein must be considered and weighed with the other ocular evidence they gave before the Court. In my view, some detailed discussion with regard to the evidence of PW 10 and 11 would have been perhaps necessary considering the gravity of the offence, before those were rejected on the ground of contradiction. I am aware of the Apex Court decision on the issue. I am aware of the provision of law which restricts me from converting judgment to acquittal into judgment of conviction. I am also aware that I should be cautious enough to make any observation with regard to appraisal of the evidence. I only feel that some detailed scrutiny of these two evidence was absolutely necessary before those were rejected in limine. 7. RESULT: The Revisional application succeed in part. The judgment and order of acquittal dated June 29, 2004 passed in Sessions trial No 50 of 2003, by the Additional Sessions Judge 2nd Fast Track Court Hooghly is set aside. The Sessions Trial No. 50 of 2003 is remanded back to the learned Judge with limited scope to reconsider and reappraise the evidence particularly PW- 10 and 11 and make a detail scrutiny and then come to final conclusion. The learned District and Sessions Judge Hooghly is earnestly requested either to hear the case personally or assign it to the senior most Additional Sessions Judge posted there. The learned Judge, while considering the matter on remand must not be, I repeat, must not be influenced by any of my observations made herein. I once again make it clear that I had to make few observations. Those are purely prima facie in nature, as those have been found necessary only to examine the issue of sending the matter on remand and not for, may I quote the Apex Court, loading the dice lightly or heavily on the learned Judge influencing him before hand. The Revisional application is thus disposed off with the above directions. Urgent photostat copy will be given to the parties, if applied for. Petition Disposed Of.;