IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Joymalya Bagchi
The Hon’ble Justice Manojit Mandal
C.R.A. 475 of 2017
Kusum Mondal Ors.
Swadhin Mondal Anr.
For the Appellants : Mr. Partha Sarathi Bhattacharyya .. Advocate
Mr. Debangan Bhattacharjee .. Advocate
For the State : Mr. Madhusudan Sur .. Ld. A.P.P.
Mr. Manoranjan Mahato .. Advocate
Heard on : 24.04.2019
Judgment on : 24.04.2019
Joymalya Bagchi, J. :-
Supernatural forces were blamed for the death of a housewife. However, pre-
varicating witnesses resiling from their earlier stance and indifferent investigation
sounds the death knell for the prosecution case.
The prosecution case as alleged against the appellants is to the effect that
on 6th September, 2004 at about 6:00 A.M. the victim-housewife, Madhuri Mondal
was found dead with her eyes uprooted in the banana garden adjoining the
homestead of the appellants. She had been married to Sunil Mondal about two
and half years ago and was residing at her matrimonial home at the time of
occurrence. Chaitanya Mondal (since deceased) and Kusum Mondal (appellant
no.1 herein) were her parents-in-law while Sukumar Mondal and Suklal Mondal @
Pancha (absconding accused) were her brothers-in-law. Beni Madhab Mondal
(grandfather of Sunil Mondal) had gifted land which was cultivated by him. Other
family members exerted pressure for transfer and joint enjoyment of the land. It is
alleged that Madhuri was unwilling to such arrangement. As a result, she was
subjected to torture and ill-treatment. Under such circumstances, behind the
homestead of the appellants in the early hours of the fateful day her mutilated
dead body was recovered in the banana garden. The matter was reported to
Sadhin Mondal (PW16), brother of the victim. He along with other family members
rushed to the spot and found that the eyes of the victim-housewife had been
uprooted. Her ears had been cut and there was a ligature mark round her neck.
He heard from local people that the accused persons claimed that the victim-
housewife had been killed by a ghost. PW16 suspected the appellants for the
murder of his sister and lodged FIR resulting in registration of Jiaganj Police
Station Case No. 51 of 2004 dated 6th September, 2004 under Sections
498A/Section302/Section201/Section34 of the Indian Penal Code. In conclusion of investigation,
charge-sheet was filed against the appellants. The case being a sessions triable
one was committed to the Court of Sessions and transferred to the court of the
learned Additional Sessions Judge, Lalbagh, Murshidabad for trial and disposal.
As Suklal Mondal @ Pancha had absconded and Chaitanya Mondal had expired,
charges were framed against the appellants under Sections 498A/Section302/Section201/Section34 of
the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 21 witnesses and exhibited a number
of documents. In conclusion of trial, the trial Judge by the impugned judgment
and order dated 17th December/19th December, 2013 passed by the learned
Additional Sessions Judge, Lalbagh, Murshidabad in Sessions Trial No. 1 of May,
2009 [Sessions Case No. 45/2008] convicting the appellants for commission of
offence punishable under Sections 302/Section201/Section34 of the Indian Penal Code and
sentencing them to suffer rigorous imprisonment for life and to pay fine of
Rs.10,000/- each for the offence punishable under Sections 302/Section34 IPC and to
suffer rigorous imprisonment for six years and to pay fine of Rs.5,000/- each, in
default, to suffer rigorous imprisonment for six months more for the offence
punishable under Sections 201/Section34 IPC; both the sentences to run concurrently.
However, by the selfsame judgment, appellants were acquitted of the charges
under Section 498A IPC.
Hence, the present appeal.
Mr. Partha Sarathi Bhattacharyya, learned advocate appearing for the
appellants argued there is no direct evidence connecting the appellants with the
murder of the victim-housewife. Circumstances relied on by the prosecution have
not been proved and even so they do not unerringly point to the guilt of the
appellants. Dead body of the victim-housewife was recovered from a place which
was freely accessible to all and evidence has come on record that the victim-
housewife resided in a separate room with her husband namely, Sunil Mondal. No
forensic report with regard to presence of human blood from the seized articles
was produced in the instant case. Motive for commission of crime is vague and by
no stretch of imagination the husband could have shared the motive with other
appellants to the housewife. Hence, the appeal is liable to be allowed.
On the other hand, Mr. Madhusudan Sur, learned Additional Public
Prosecutor along with Mr. Manoranjan Mahato, learned advocate appearing for the
State submitted that the victim-housewife was residing with the appellants at her
matrimonial home at the time of occurrence. In the early morning of 6.9.2009
dead body of the victim was found in mutilated condition in the banana garden
adjoining the homestead of the appellants. No explanation is forthcoming from the
appellants with regard to the circumstances in which the victim suffered brutal
death. Appellants were exerting pressure upon the victim-housewife for joint
enjoyment of the land which had been gifted to her husband by his grandfather.
They had floated a false plea of murder by ghosts. Hence, the chain of
circumstances pointing at their guilt is fully established. Accordingly, the appeal
ought to be dismissed.
From the evidence on record as well as the submissions made at the bar, it
appears that the prosecution case is based on circumstantial evidence.
P.Ws. 4, 5, 16 and 17 are the relations of the deceased.
P.W. 16, Sadhin Mondal, is her brother and de facto complainant. He
deposed that around 6 a.m. they received information that dead body of their
sister was lying on the banana garden behind her matrimonial house. They were
informed by the neighbour of the appellants that her sister had been killed by
ghosts. They rushed to the banana garden and found marks of injuries on the
throat of her sister. They noticed that her eyes had been uprooted and ear cut. He
deposed two years and five months prior to the incident Madhuri was married to
Sunil. Sunil had been gifted a piece of land and money by his grandfather. Other
in-laws were unhappy and wanted that the said gifted property be shared jointly.
Madhuri did not agree to such proposal and was subjected to mental and physical
torture. As the dead body of Madhuri was discovered in the garden behind the
house of the accused persons he suspected that they had a hand in the murder.
He had heard from Madhuri that his mother-in-law threatened her that she would
uproot her eyes whereupon Madhuri had threatened that she would ruin the
family. He lodged written complaint scribed by Kartick Chandra Mondal, his uncle
(P.W. 10). He signed on the inquest report. His evidence is corroborated by the
other bothers viz. Nikhil Mandal (P.W. 4) and Gora chand Mandal (P.W. 7).
P.W. 5, Kamala Mandal, mother of the victim, also supported the evidence of
her sons, as aforesaid.
P.W. 19, Dr. Tapash Kumar Das, held post mortem examination over the
body of the victim and found the following injuries:-
“1. Both eyes of the victim were enucleated from the eye cavity by
2. Lower half of right ear including lobule missing, cut by sharp cutting
3. Well defined transverse continuous ligature mark just below the
4. Bruises in the subcutaneous tissue.
5. Extravassation of blood in the neck muscles.
6. Fracture of right corner of the hyoid bone.”
He opined that the death of the victim was due to cardiac respiratory failure
due to asphyxia and strangulation which is ante mortem and homicidal in nature.
He proved the post mortem report marked as ‘Ext.-7’.
From the aforesaid evidence it appears that the victim Madhuri was married
to Sunil Mondal two years and five months prior to the incident. She was residing
with her husband at her matrimonial home. Other appellants viz. Kusum and
Sukumar are her mother-in-law and brother-in-law respectively. Sunil had been
gifted land and money by his grandfather, Beni Madhab. In-laws of Madhuri
including appellant nos. 2 and 3 insisted that the gifted property be shared jointly.
Madhuri did not agree. As a result, she was subjected to ill treatment at her
matrimonial home. Finally on 06.09.2004 her mutilated dead body was recovered
from the banana garden adjoining to the homestead of the appellants. Post
mortem doctor opined that the housewife suffered asphyxia death due to
However, the prosecution case which is based on circumstantial evidence
has suffered a jolt as the neighbouring witnesses namely, P.W.s 1, 2, 6, 11, 12, 13,
18 have turned hostile and have not supported the prosecution case.It may be
profitable to recount relevant parts of their evidence in précis.
P.W. 2, Swapan Mandal, admitted his signature on the seizure list relating
to seizure of earth and lungi in front of the house of the appellants Sukumar and
Pacha (absconding accused) as well as seizure of earth from the place where the
body was recovered, he did not support the prosecution case that he had seen the
accused persons taking something towards their garden. On the other hand, in
cross-examination, he claimed that there was cordial relationship between the
Similarly, his wife Pabitri Mandal, (P.W.3) also did not support the
prosecution case and was declared hostile. She, however, deposed that on the
night the victim was residing at her matrimonial home and had not gone out to
listen “Manasa Play” which was organized in the village.
P.Ws. 6 and 13 who were cited as witnesses to the seizure of ‘gamcha’ from a
bamboo bush near the house of the accused persons, turned hostile and did not
support the prosecution case. They, however, admitted their signatures on the
Another neighbour Dijen Mandal (P.W. 11) also retracted from his previous
statement that he has seen the appellants carry a heavy object out of their house
in the night.
P.W. 7, Gora Chand Mandal, deposed that he had informed the police after
hearing the incident and such information was diarised by P.W. 21 at the police
Subsequently, on receiving written complaint from P.W. 16, P.W. 20 (I.O.)
commenced investigation in the instant case. He came to the place of occurrence
around 7.25 a.m. He held inquest over the dead body (Ext.11). Subsequently he
requisitioned assistance of SDO, Lalbagh to conduct magisterial inquest over the
body. Executive Magistrate held inquest over the body marked as “Exbt.-12”.
Thereafter he sent the dead body for post mortem examination through head
constable. He prepared rough sketch map on the place of occurrence marked as
“Exbt.-13”. He also prepared another sketch map of the place of occurrence with
index i.e. house of Sukumar and Suklal alias Pacha marked as “Exbt.-14”. He
prepared another rough sketch map of the place of occurrence marked as “Exbt.-
15”. He could ascertain during investigation that victim was killed in her room
and her dead body was dragged to the room of Sukumar and Suklal and thereafter
body was thrown into the banana garden. He seized blood stained earth and
printed lungi with blood stains under a seizure list marked as “Exbt.-2”. He also
seized blood stained earth where the body was detected marked as “Exbt.-1”. He
also seized a red coloured gamcha from the back of the house of the accused
persons. He seized a brass metal kerosene lamp from the room of the deceased
marked as “Exbt.-4”. He identified the articles in the Court. He submitted charge-
sheet. In cross-examination, he stated that he had sent the blood stained lungi
and blood stained earth along with FSL blood of the deceased for chemical
examination. He, however, did not receive any report in that regard.
Lack of support from the neighbouring witnesses, as aforesaid, leaves the
court to rely on the opinion of the investigating officer P.W 20 alone with regard to
the manner and course in which the incident occurred. It is trite law that opinion
of investigating officer with regard to the manner in which the crime was
committed is not substantive evidence. Most of the neighbouring witnesses have
resiled from their earlier statements and have not supported the prosecution case
to establish a vital link in the chain of circumstances i.e. the appellants had been
seen carrying a heavy object from their house in the night of occurrence.
In the absence of cogent evidence proving the aforesaid fact, I am
constrained to hold the chain of circumstances sought to be established by the
prosecution against the appellants is broken. The situation is further aggravated
by non-production of chemical report of seized earth and ‘lungi’ to establish that
they were stained with blood of the deceased or at the least human blood. Absence
of legally admissible and cogent evidence with regard the aforesaid facts severly
impairs the prosecution case and one is left with a lingering grave suspicion
against the appellants which howsoever strong cannot take the place of proof
beyond reasonable doubt.
It is also important note that the motive of commission of crime is on a
shaky premise. Evidence has been led that the in-laws of the deceased pressurised
her to transfer the land gifted to her husband to joint family stock. Even if it is
accepted as motive of the crime, I find it difficult to believe that her husband
would join the other in-laws in that endeavour and commit murder of his wife.
Finally, it has been argued that the prosecution case ought to be believed as
the victim was residing at her matrimonial home at the time of occurrence and no
explanation is forthcoming from the appellants how her mutilated dead body was
recovered from a banana plantation adjoining their homestead. Burden of proof in
a criminal trial always rests on the prosecution. Only when the prosecution has
been able to establish a set of circumstances leading to the inference that
homicidal death of the victim is within the “special knowledge” of an accused, does
failure on his parts to explain the circumstances leading to the homicidal death
gives rise to an adverse inference against him. In the present case body of the
victim was found in a banana garden which is accessible to all. It is nobody’s case
that the banana garden was bounded by a wall or was in the exclusive possession
and control of the appellants alone. That apart it appears from the rough sketch
maps (Ext. 14 15) relied upon by the prosecution that the appellants
particularly, the appellant no. 3 was residing in a separate house from that of the
victim and her husband. Apart from the speculative opinion of the I.O. (P.W. 20)
which is inadmissible in law, there is no legally admissible evidence that the victim
was murdered inside her room and thereafter her dead body had been put into
banana plantation, as alleged. In the absence of cogent evidence on record with
regard to homicidal death of the deceased in a place which was within the
exclusive control and custody of the appellants, it is impermissible to draw
adverse inference against them for the reason that they have failed to come up
with an explanation as to how the victim suffered homicidal death. Even the
prosecution case that the appellants had floated a false plea amongst their
neighbours that the victim had been killed by ‘ghosts’ has not been supported by
the local people. P.W.s 1 and 18 who generally spoke of such rumour, however,
did not attribute it to the appellants.
Hence, the prosecution case has not been proved beyond reasonable doubt
and appellants are entitled to the benefit of doubt. Appellants are acquitted from
the charges levelled against them.
Hence, I set aside the conviction and sentence of the appellants.
Appeal is allowed.
Appellants shall be forthwith released from custody if they are not wanted in
any other case upon executing a bond to the satisfaction of learned trial court
which shall remain in force for a period of six months in terms of Sectionsection 437A
Let a copy of this judgment along with the lower court records be forthwith
sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made
available to the appellant within a week from the date of putting in the requisites.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)