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Khalil Mondal & Anr vs The State Of West Bengal on 1 October, 2019

IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE

PRESENT:

THE HON’BLE JUSTICE TIRTHANKAR GHOSH

CRR 1788 of 2006
Khalil Mondal Anr.

-vs.-

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;
21/08/2019 20/09/2019
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
2

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
3

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
4

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.
5

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

case.

6

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
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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

bonds.

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.)

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