IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
THE HON’BLE JUSTICE TIRTHANKAR GHOSH
CRR 1788 of 2006
Khalil Mondal Anr.
The State of West Bengal
For the Petitioners : Mr. Amitabha Karmakar
Mr. Arup Kumar Bhowmick
For the State : Ms. Sreyashee Biswas
Heard on : 10/07/2019; 25/07/2019;
Judgment on : 01/10/2019
Tirthankar Ghosh, J:-
The revisional application has been preferred against the judgment
and order dated 18th May, 2006 passed by the Ld. Additional Sessions
Judge, 2nd Court, Barasat in Criminal Appeal No. 21 of 2003 wherein the Ld.
Appellate Court was pleased to modify the judgment and order of conviction
and sentence passed by the Assistant Sessions Judge, 2nd Court, Barasat
dated 30th August, 2003 and 1st September, 2003 in ST Case No. 6(5) of
2002. It is apposite to state that the Ld. Assistant Sessions Judge being the
Trial Court convicted the petitioners both under Sections 498A and Section306 of
the IPC and sentenced them for two years and to pay a fine Rs. 1,000/-
each, in default simple imprisonment for three months for the offence under
Section 498A of the IPC and to suffer rigorous imprisonment for four years
and to pay a fine of Rs. 2,000/- each in default simple imprisonment for six
months for the offence under Section 306 of the IPC. The Appellate Court
acquitted the petitioners under Section 306 of the IPC however, retained the
conviction and sentence so imposed by the Ld. Trial Court under Section
498A of the IPC.
The present petitioners preferred this revisional application being
aggrieved by the conviction and sentence so passed under Section 498A of
the IPC by the Ld. Appellate Court being the Ld. Additional Sessions Judge,
2nd Court, Barasat.
The prosecution case in short is that the victim, Jahanara Bibi was
married with the accused Khalil Mondal about 8 years prior to the date of
the unfortunate incident of her death. According to the materials collected
by the Investigating Officer (IO), after her marriage the victim went to her
matrimonial home within the jurisdiction of Deganga Police Station, North
24 Parganas and started residing there. During the subsistence of her
marriage she gave birth to a female child and thereafter a male child was
born out of the same wedlock. It is alleged that after the birth of her first
child the accused persons started creating pressure upon her to bring more
money from her parents which from time to time was satisfied by her father
however, the accused persons continued assaulting the victim and inflicted
both physical and mental torture upon her. Such fact was brought to the
notice of her father, who tried to settle the matter amicably through the
respectful persons of the locality. A general diary being GD No. 850 dated
21st March, 1996 was also filed with the Deganga Police Station. Lastly on
18th November, 1999 at about 4 pm it was informed that victim Jahanara
Bibi committed suicide by consuming poison, she was shifted to Barasat
Hospital for treatment and on 19th November, 1999 at about 5:25 am she
breathed her last.
On the basis of a written complaint addressed to the Officer-in-Charge
of Deganga Police Station by the father of the victim, Deganga P.S. Case No.
186 dated 19th November, 1999 was registered for investigation against the
present petitioners being the husband and mother-in-law of the victim
under Sections 498A and Section306 of the IPC. On completion of investigation the
IO submitted chargesheet under the same sections and after complying with
the necessary provisions of law, the case was committed to the Court of
sessions. The Ld. Trial Court being the Ld. Assistant Sessions Judge, 2nd
Court, Barasat framed charge under Sections 498A and Section306 of the IPC. The
charge was read over to the accused persons to which they pleaded not
guilty and claimed to be tried.
The prosecution in order to prove its case relied upon as many as 15
witnesses which included the relations of the victim, the neighbors, medical
experts as well as three Police Officers. The prosecution witnesses who
supported the prosecution case are PW1, Didar Box Mondal (defacto
complainant / father of the victim); PW2, Arzel Mondal; PW3, Sajahan
Mondal; PW4, Dilwar Hossain; PW5, Hasem Ali Mondal; PW6, Md. Sahazur
Islam; PW7, Abdul Ohab Mondal; PW8, Gani Mondal; PW9, Haran Ali
Mondal; PW10, Khayer Ali Mondal; PW11, Sahabuddin Mondal; PW 12,
Chandra Sekhar Das (2nd IO); PW13, Tarun Kanti Bose; PW14, Sukumar
Chatterjee (3rd IO) and PW15, Sankar Choudhury (1st IO). The prosecution
also relied upon three documents namely, FIR, inquest report and the
written complaint which was admitted in evidence.
I have taken into account the evidence of the witnesses as relied upon
by the Ld. Trial Court and scrutinized by the Ld. Appellate Court. There is
an inherent weakness in the prosecution case in as much as the
prosecution did not collect the medical documents during the period when
the victim was admitted in the hospital neither the post mortem report was
available in the records nor the viscera was collected. The IO also did not
conduct any investigation at the place of occurrence to arrive at a
conclusion as to how and in what manner the victim died. So far as the
PW1 is concerned the father of the victim girl, he has stated in the complaint
that earlier a dispute arose for which information by way of general diary
entry being GD No. 850 dated 21st March, 1996 was made at Deganga Police
Station but, such GD entry was also not admitted in evidence or brought on
record. There is no evidence on record to show that just before the incident
or on the day of the incident or in close proximity of the incident there was
any physical or mental torture being inflicted upon the victim so as to end
her life. PW3, PW4, PW5, PW6 and PW7 have heard about the incident and
were not eyewitnesses to any incident of torture being inflicted upon the
victim although PW3, PW5 and PW6 happen to be neighbors.
PW2 in her deposition stated that the factum of torture were never
stated to the IO of the case and were first time deposed in Court. PW3 also
stated that so far as the factum of torture is concerned he has not stated to
the IO and has first time stated in Court. PW5 also claimed that he was not
examined by the IO of the case and whatever he has deposed was for the
first time in Court. The prosecution has tendered four police officers who
claimed that they were investigating officers of the case. PW12 in his
deposition restricted himself for only sending the viscera for chemical
examination and he did not do any other thing so far as the investigation of
the case is concerned. PW13 filled up the formal FIR and received the
written complaint. He also started UD Case No. 403 dated 19th November,
1999 but he was not aware regarding any other outcome regarding the case.
PW14 only submitted the chargesheet and he is not aware regarding any
investigation being made. PW15 deposed that he recorded the statements
under Section 161 of the CrPC of eight witnesses yet in his cross-
examination he deposed that he is unable to say anything about the case
without going through the case diary and the case diary was not available.
I am constrained to hold that the prosecution has stressed more upon
the quantity than the quality of the evidence required to prove a criminal
The Ld. Courts below ignored the major discrepancies appearing in
evidence and the veracity of the witnesses who appeared before the Ld. Trial
Court in support of the prosecution case.
SectionIn Jagdishraj Khatta vs. State of Himachal Pradesh reported in 2019
SCC OnLine SC 611, it has been observed as follows:-
“In these circumstances, a reliance on the evidence, would
be misplaced. Further, as the High Court itself indicated
somewhat contradictorily, reliance on the instances
testified to by the witnesses would not be appropriate as
the said incidents had taken place much before the
deceased’s death and could not be treated as conduct
which drove the deceased to commit suicide.”
It is a settled principle of law that mere suspicion cannot be the basis
of conviction and there is a difference between “may be true” and “must be
true” which is to be elicited from the evidence adduced by the prosecution.
The standard of proof in this case do not inspire such confidence to arrive at
a finding beyond reasonable doubt.
In view of the deficiency in collection of materials by the IO and the
prosecution case suffering from dearth of materials in a case which was
registered under Sections 498A and Section306 of the IPC, it would be unsafe to
convict the petitioners merely on general oral testimony of the prosecution
witnesses. Accordingly, the judgment and order of conviction and sentence
passed by the both the Courts below under Sections 498A and Section306 of the
IPC are set aside.
The petitioners are acquitted of the charges.
If the petitioners are on bail they shall be discharged from their bail
CRR 1788 of 2006 is accordingly allowed.
LCR if any be sent back to the Lower Court below. Department is
directed to communicate this order to both the Courts below.
Urgent Xerox certified photocopies of this judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)