Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present: The Hon’ble Justice Siddhartha Chattopadhyay
CRA 47 of 2013
(Ajoy Malik Ors vs. The State of West Bengal)
For the appellant : Mr. Sourav Chatterjee
(as State Defence)
For the State : Mr. Abhra Mukherjee
Mrs. Debjani Sahoo
Heard on : 22.09.2017
Judgment on : 22.09.2017
Siddhartha Chattopadhyay, J.:
The appellants call in question the legality and validity of the judgment and order of
conviction dated 19.12.12 and 21.12.12 passed by the learned District Sessions Judge, Fast
Track 2nd Court, Hooghly in S.T. No. 18/10 by which the said learned court below convicted the
male convicts for a period of six years and female convicts for a period of five years each.
According to the appellants, the learned trial court failed to appreciate the evidence of
the prosecution witnesses and failed to scrutinize the entire evidence for which the findings of the
learned trial court is required to be set aside.
To come to a finding I should now have a look upon the prosecution case.
Shorn of unnecessary details, prosecution case in a capsulated form is such that the
marriage of the victim took place on 28.11.2005 with the principal accused Ranjit Malik as per
Hindu rites and Ceremonies. Marital rituals were observed and some presentations were given.
After initial charm is over, the appellants used to inflict physical and mental torture
upon the victim and the victim disclosed this incident to them. The prosecution is very
categorical in saying that when the victim visited the house of her parents, she disclosed the story
of assault and torture. It has also been averred that they did not provide her sufficient food and
put pressure upon her to bring more money from her father’s house.
In the month of Jaistha, the victim was driven out and the parents of the victim took
steps for amicable settlement and, lastly, it was settled. But all on a sudden, they came to know
on 27.05.2006 that the victim died in hospital. It is their belief that due to torture, the victim had
to commit suicide by taking poison.
After registration of FIR, the investigating agency came into operation. After completion
of investigation, the I.O. concerned submitted chargesheet under Section 498A of the Indian
Penal Code and Section 306 of the Indian Penal Code
Now, I should consider the evidence of the prosecution witnesses to adjudicate
whether the prosecution has been able to prove the guilt beyond all reasonable doubts and
PW 1 is the father of the victim. In his examination-in-Chief, he has corroborated the
prosecution story. In course of examination-in-Chief, he has stated that at the time of marriage,
he had given Rs. 5000/- on demand made by the accused appellant. He also failed to recollect
whether he has mentioned the same in the FIR or not. He has also admitted that in the FIR, he
did not mention that a sum of Rs. 10000/- was demanded and paid. He also candidly admitted
that his daughter visited his house at the time of Dol Yatra of that year. But in the FIR, it has
been mentioned that the victim came to his house and he took them to the house of the appellant
and requested the appellant for amicable settlement and that was done. At the same time, he has
invited the accused son-in-law to attend Jamai Sasthi Ceremony. The Jamai Sasthi Ceremony is
generally held in the month of Jaistha and Dol Jatra falls in the month of February/March.
It further appears that the FIR was lodged on 06.02.12, i.e., long after nine days from
the date of incident. There is no explanation regarding such delay.
PW 2 has some acquaintance with the defacto-complainant. He was present at the
time of inquest. In course of cross-examination, he has stated that sometimes he went to the
house of the defacto-complainant. He did not say from whom he came to know that there was
family dispute between the parties. The mother of the victim has corroborated her husband (PW
1). In course of cross-examination, she stated that the victim visited her house for 4-5 times in
between the date of marriage and her death. In her examination-in-Chief, she has stated that the
victim told her about the torture but inspite of that, she did not lodge any complaint before any
authority. A suggestion was given to her that the victim died due to her breathing problem but
she turned down the said suggestion.
PW 4 is also a relation of the victim. He has corroborated the statement of PWs 1 to 3.
In his cross-examination, he admitted that he did not go to the house of the appellant with his
elder brother. He also admitted that after two to three days of the death of the victim, there is
consultation with him by the defacto-complainant and thereafter FIR was lodged. Other parts of
his evidence is in the form of denial.
PW 5 in his examination-in-Chief candidly admitted that he does not know whether
the appellants well-behaved with the victim or not. He failed to recollect if he had given
statement to the I.O. that the appellant drove out the victim from their residence.
So far the evidence of PW 6 is concerned, it is not relevant because he did not raise
any allegation against the accused rather he turned hostile.
The evidence of PW 7 has got no importance because he is a hearsay witness.
PW 8 is the barber.
PW 9 is the learned Executive Magistrate who conducted the inquest.
PW 11 is the doctor who had conducted the viscera test and concluded that no poison
was found in her body.
Other witnesses are Police Personnel who does not have any personal knowledge
regarding the alleged incident.
These are the sum and substance of the prosecution witnesses.
After scrutinizing the same, I do not find any ingredient of Section 498A of the Indian
Penal Code. Prior to the death of the victim, whether she was assaulted or not that has not been
proved. Whether such assault was inflicted upon her for dowry that has also not been proved.
There is no evidence in regard to the abetment to commit suicide.
It is perhaps needless to say for the purpose of bringing a person booked the
prosecution is under the obligation to show the ingredients of Section 107 also so far as evidence
of Section 306 of the Indian Penal Code is concerned.
All these are lacking in the evidence and yet why the learned trial court has convicted
the appellant under the aforesaid Sections are question of million dollar. The judgment rendered
by the learned trial court is hereby set aside.
The accused appellants are in custody for more than 4 years and nine months since
the date of conviction.
Therefore, at this stage, it would be appropriate to direct the Department to convey the
order of this court to the Correction House concerned as early as possible so that the appellant be
set at free at once.
Hence, with the above observations, the criminal appeal stands allowed.
Let a copy of this judgment be sent to the learned trial court for information and
The Department is directed to send the entire lower court record to the learned court
below at once.
Let a xerox plain copy of this order duly counter signed by the Assistant Registrar
(Court) on usual undertakings be supplied to the learned advocate for the appellant (as State
defence) so that he can communicate with the concerned Correction Home.
(Siddhartha Chattopadhyay, J.)