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CRA 7 of 2021

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Present:
The Hon’ble Justice Debangsu Basak
And
The Hon’ble Justice Md. Shabbar Rashidi

CRA 7 of 2021

Hasmat Molla & Anr.

Vs.
The State of West Bengal

For the Appellants :Mr. Dhananjay Banerjee

Ms. Oindrila Ghosh

For the State : Mr. Partha Pratim Das

Mrs. Manasi Roy

Hearing concluded on : May 10, 2023

Judgment on : May 10, 2023

DEBANGSU BASAK, J.:-

1. The appeal is directed against a judgment of conviction

dated January 11, 2019 and the order of sentence dated

January 17, 2019 passed by the learned Additional District

and Sessions Judge, Fast Track Court, Kalna in Sessions Trial

No.40 of 2016 arising out of Sessions Case No.30 of 2016.

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2. By the impugned judgment of conviction, the appellants

were convicted under Sections 498A/302/201 of the Indian

Penal Code, 1860. By the impugned order of sentence, the

appellant no.1 was sentenced to suffer rigorous imprisonment

for life and to pay a fine of Rs.5,000/- and in default, to suffer

further simple imprisonment for six months for the offence

punishable under Section 302 of the Indian Penal Code, 1860.

Appellant no.1 was sentenced to suffer rigorous imprisonment

for three years and to pay a fine of Rs.3,000/- and in default

to suffer further simple imprisonment for three months for the

offence punishable under Section 498A of the Indian Penal

Code, 1860 and appellant no.1 was sentenced to suffer simple

imprisonment for seven years for the offence punishable under

Section 201 of the Indian Penal Code, 1860. The appellant

no.2 was sentenced to suffer rigorous imprisonment for life

and to pay a fine of Rs.5,000/- and in default, to suffer further

simple imprisonment for six months for the offence punishable

under Section 302 of the Indian Penal Code, 1860. Appellant

no.2 was sentenced to suffer rigorous imprisonment for three

years and to pay a fine of Rs.3,000/- and in default to suffer

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CRA 7 of 2021

further simple imprisonment for three months for the offence

punishable under Section 498A of the Indian Penal Code,

1860 and appellant no.2 was sentenced to suffer simple

imprisonment for seven years for the offence punishable under

Section 201 of the Indian Penal Code, 1860.

3. Mother of the victim, the prosecution witness (P.W.) no.1

lodged a written complaint with the police on November 3,

2014 with regard to the death of the victim. In such written

complaint, it was stated that, the victim was married 20 years

ago to the appellant no.1. Right after marriage on different

grounds, appellant no.1 started torturing both physically and

mentally and frequently threatened to kill her. Appellant No.1

tried to burn the victim 15 years ago and about 10 years ago,

the appellant no.1 tried to kill the victim by pressing the pillow

on her face. On that occasion, the victim somehow escaped

and survived. Appellant no.1 married again about three years

ago and after marriage, degree of torture increased upon the

victim. On November 2, 2014, appellant nos.1 and 2 along

with the mother of the appellant no.1 with the help of two or

three women killed her daughter and drowned her in the water
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CRA 7 of 2021

of the pond. After searching continuously, on November 3,

2014 at 4.30 pm, the dead body of the victim was found

floating in the pond.

4. On the basis of such written complaint, Monteswar Police

Station Case No.185/14 dated November 3, 2014 under

Sections 498A/302/201/120B/34 of the Indian Penal Code,

1860 against the two appellants and the mother of the

appellant no.1 was registered.

5. Police submitted charge sheet against the two appellants

and the mother of the appellant no.1 and framed charges

against three persons on December 6, 2016 under Sections

498A/302/34/201 of the Indian Penal Code, 1860.

6. The accused persons pleaded not guilty and claimed to

be tried. At the trial, prosecution examined thirteen witnesses

and relied upon various documentary and material exhibits to

bring home the charges against the accused persons.

7. Learned Advocate appearing for the appellants submits

that the prosecution was unable to prove the case beyond any

reasonable doubt. Referring to the testimonies of the various

prosecution witnesses, learned Advocate appearing for the

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CRA 7 of 2021

appellants submits that, although presence of appellant no.2

in the house was sought to be established by the evidence of

P.W.3 and defence witness (D.W.) 1, the prosecution failed to

establish any active role being played by the appellant no.2.

8. Learned Advocate appearing for the appellants relies

upon 2013 (12) Supreme Court Cases 406 (Sujit Biswas vs.

State of Assam) and submits that, there is a distinction

between proof beyond reasonable doubt and suspicion. He

contends that, the circumstantial evidence established by the

prosecution at the trial does not lead to the conviction of any

of the appellants.

9. Learned Advocate appearing for the appellants submits

that there are no eye-witnesses to the incident. The

prosecution relied upon circumstantial evidence to bring home

the charges.

10. Learned Advocate appearing for the appellants relies upon

AIR 1956 SC 404 (Shambhu Nath Mehra vs. The State of

Ajmer), CRA 25 of 2016 (Bulu Bag & Ors. Vs. State of West

Bengal, 2022 SCC OnLine SC 1399 (Md. Anowar Hussain

vs. State of Assam) in support of the contention that even on

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CRA 7 of 2021

the basis of the provisions of Section 106 of the Evidence Act,

1872, the appellant no.2 cannot be convicted. He contends

that prior to the Section 106 of the Evidence Act, 1872, being

attracted, the prosecution is required to establish the charge

as against the accused beyond reasonable doubt. According to

him, the prosecution failed to do so.

11. Learned Advocate appearing for the State submits that

the prosecution was able to establish the charges as against

the appellants beyond reasonable doubt. He refers to the

various testimonies of the prosecution witnesses. He submits

that, the victim was strangulated and then drowned in a pond

which was at a distance from a house where the victim and

the appellants lived. The dead body of the victim was

discovered one day subsequent to the incident of murder. He

refers to the post-mortem and submits that the victim died by

strangulation. He submits that there was a motive for both

the appellants to get rid of the victim.

12. The mother of the victim deposed as P.W.1. She stated

that the victim was given in marriage with the appellant no. 1

about 20 years ago. The victim used to reside at her

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CRA 7 of 2021

matrimonial home. Since after marriage, the appellant no. 1

and the mother of the appellant no. 1 used to torture the

victim by various means. They did not provide the victim food.

The victim was compelled to work under 100-days work

scheme at the Panchayet. Appellant no. 1 and his mother

used to assault the victim. Once, appellant no. 1 tried to kill

the victim by pouring kerosene oil upon her. Appellant no. 1

made another attempt to kill the victim by putting pillow in

her mouth. Appellant no. 1 married for the second time to the

appellant no. 2. On the relevant date of the incident, the

accused persons locked all the three children of the victim in a

room and forced the victim to sleep outside the room. On the

fateful night, the accused persons killed the victim and after

committing murder, they plunged the victim in a nearby pond

and placed boulder upon her. On such night, appellant no. 1

rang her elder son and informed her that the victim fled away

with someone. On such fateful night, she could not go to the

matrimonial home of the victim. On the following morning,

she along with her son-in-law and another daughter went to

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CRA 7 of 2021

the matrimonial home of the victim who could not find her.

They searched for the victim.

13. P.W. 1 stated that appellant no. 1 told them to go to the

police station. She went to the police station, when they were

informed of the discovery of the dead body of the victim. She

along with police personnel of the police station rushed to the

place where the dead body of the victim was found, in a police

vehicle. The police lifted the dead body of the victim from the

pond and held inquest over the dead body of the victim. She

put her left thumb impression on the inquest report. She

lodged the written compliant with the police station. She

identified the accused persons in Court.

14. P.W. 1 was cross-examined at length on behalf of the

defence. Nothing favourable to the defence was extracted from

such lengthy cross-examination.

15. P.W. 2 is the son of the appellant no. 1. He stated that he

heard about the incident from his younger brother, P.W. 3. He

was living at Mumbai for the last 11 months from the date of

the death of the victim. He stated that the victim used to

reside in a distressed condition. She used to earn her

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CRA 7 of 2021

livelihood by dint of manual labour. Appellant no. 1 was with

no employment and there was quarrelling between the

appellant no. 1, victim and the mother of the appellant no. 1.

The mother of the appellant no. 1 sometimes told the victim to

leave the house. Once, the victim and the children left the

house and settled at Burdwan in a rented house. There, the

appellant no. 1 worked as a rickshaw puller. They stayed there

for three months. Then they came back to the house.

Appellant no. 1 used to assault the victim. During his stay at

Mumbai, he used to send money to the victim. Appellant no. 1

married to appellant no. 2 and the victim accepted such

marriage.

16. P.W. 2 stated that appellant no. 1 in presence of police

pointed out the place where he plunged the victim. As per

instruction of the police, he dove into the point and as pointed

out by the appellant no. 1, he found few boulders and pillows

strained with blood from that place of pond. The boulders

belonged to their house. The boulders and pillows were

marked as material exhibits. He recorded a statement under

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CRA 7 of 2021

Section 164 of the Criminal Procedure Code, which was

tendered in evidence and marked as Exhibit-1.

17. P.W. 3 is another son of the victim. He stated that, on the

fateful night, he along with his sister and another cousin sister

were sleeping in the room. Appellant no. 1 and the victim were

sleeping at the attached veranda. Appellant no. 1 used to

assault the victim, used filthy languages to her and did not

provide family expenses to her. Once, little finger of the victim

was broken by the appellant no. 1. The victim also received

injury at her forehead caused by the appellant no. 1. He saw

such incident of assault. The appellant no. 1 also tried to

hang the victim by rope. Appellant no. 1 tried to kill the victim

by pressing pillow in her mouth.

18. P.W. 3, with regard to relevant night, stated that at about

10 P.M., he woke up for answering nature’s call when he went

outside the room. At that time, he saw the victim and

appellant no. 1 sleeping at the veranda. After answering the

nature’s call, he again entered into his room and went to

sleep. After a while, he heard a sound from outside and again

woke up and tried to go outside the room and found the door
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CRA 7 of 2021

was closed from outside by sikal. He again went to bed for

sleep. At about 2 P.M. appellant no. 1 called him and woke

him up. Appellant no. 1 asked him whether the victim entered

into the room, when he said ‘no’. He told appellant no. 1 that

the victim was sleeping with appellant no. 1. Appellant no. 1

told him that the victim fled away with someone. He then

started searching for the victim but could not find the victim

at that night. He rang the maternal uncle from his mobile

phone. On the following morning, his maternal grandmother

and maternal uncle and his wife came to his house. They also

searched for the victim but could not find the victim. When

they failed to find the victim in spite of search, they went to

the police station for filing missing diary at about 5 P.M. The

dead body of the victim was found floating in the nearby pond.

Police came there and lifted the dead body of the victim. He

recorded a statement under Section 164 of the Criminal

Procedure Code which was tendered in evidence and marked

as Exhibit-2. He identified the accused persons in Court.

19. P.W. 4 is a seizure list witness. He identified the material

exhibits as well as signature of seizures list.

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CRA 7 of 2021

20. Daughter of P.W. 1, sister of the victim deposed as P. W.

5. She narrated how the appellants used to torture the victim.

She was not an eye-witness to the incident of murder. She is

a witness to the inquest report.

21. P.W. 6 is also not an eye-witness to the incident of

murder. She stated that she went to the nearby pond when

the dead body of the victim was found floating.

22. P.W. 7 is a seizure list witness. He identified the seized

articles which were marked as material exhibits. He also

identified his signature on the seizure list.

23. A police personnel deposed as P.W. 8. He prepared the

dead body challan, which was tendered in evidence and

marked as exhibit 4. He seized certain articles by a seizure

list, which was tendered in evidence and marked as exhibit 5.

24. A relative of the victim, namely, brother-in-law, deposed

as P.W. 9. He stated that, on November 2, 2014 after

midnight, the appellant no. 1 informed him over phone that

the victim was found missing. P.W. 3 also informed him over

phone that the victim was found missing. He stated that on

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CRA 7 of 2021

the following morning, he, P.W. 5 and the brother of the victim

went to the matrimonial home of the victim. After arrival at

the village, they started looking for the victim but all their

attempts went in vain. Finding no alternative, they went to

the police station to report to the missing of the victim from

her matrimonial home. Police told them that the husband is

required to lodge a missing diary for which the appellant no. 1

was called to the police station to lodge the missing diary of

his wife when in reply the appellant no. 1 informed that he

would be arriving shortly. They were waiting at the police

station when a message was received that a dead body was

found floating in a local pond. Accordingly, they rushed to

such spot when they found that the body was that of the

victim. He was a witness to the inquest. He spoke about P.W.

1 lodging a written complaint written by P. W. 13 in his

presence. He spoke about the appellant no. 1 marrying the

appellant no. 2 for the second time. He also spoke about

attempts made by the appellant no. 1 to murder the victim on

previous occasions.
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CRA 7 of 2021

25. A son of P.W. 1, brother of the victim deposed as P. W.

10. He spoke about the marriage between the victim and the

appellant no. 1 being turbulent. He stated that, appellant no.

1 developed an affair with the appellant no. 2 as a result of

which, appellant no. 1 and his mother along with appellant

no. 2 started torturing the victim. They physically assaulted

the victim and also attempted to kill her by setting the victim

on fire and by strangulation. Victim used to communicate the

same when she visited her paternal home. He identified his

signature on the carbon copy of the dead body challan, which

is marked as exhibit 6. He stated that the pond from where

the dead body of the victim was found was situated at a

distance of 10 feet away from the matrimonial home of the

victim.

26. The doctor who conducted the post mortem on the dead

body of the victim deposed as P.W. 11. He described the

nature of injuries he found on the dead body. He opined that

the death was due to the effect of strangulation by ligature,

ante mortem and homicidal in nature. The post mortem

report was tendered in evidence and marked as exhibit 7. He

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CRA 7 of 2021

stated that the injury mentioned against serial no. 1 was

consistent with strangulation with some ligature material.

27. The Investigating Officer deposed as P.W. 12. He

narrated about the course of investigations. He tendered the

sketch map with index with regard to the place of occurrence

which were marked as exhibits 9 and 9/1. He spoke about

the seizure list prepared by him. He stated that, on the

leading statement of the appellants, he discovered and seized

two big sized black stone, one wooden plank of more or less

three feet, two pillows soaked with blood and one piece of sari

from the pond. He submitted the charge-sheet against the

accused persons.

28. The scribe of the written complaint deposed as P.W. 13.

The written complaint was tendered in evidence and marked

as exhibit 16.

29. On conclusion of the evidence of the prosecution, the

appellants were examined under Section 313 of the Cr.P.C.

where they claimed to be innocent and falsely implicated.

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CRA 7 of 2021

30. The defence examined the daughter of the victim as D.W.

1. In her examination-in-chief stated that she along with the

accused persons and her brothers were present at the house

on the date of the incident. She stated that appellant no. 1

and the victim were sleeping in the varandah sharing the same

bed. She stated that about 2 a.m./3 a.m. she woke up but did

not find the victim in her bed. Thereafter, she went to her bed.

31. The dead body of the victim was discovered from a pond

on November 3, 2014. Dead body of the victim was sent to

Post Mortem. The Post Mortem Report being Exhibit-7 read

with the deposition of the doctor conducting the Post Mortem

on the victim being P.W.11 established that the victim was

murdered by strangulation. The opinion of P.W.11 that the

death of the victim was caused due to effect of strangulation

by ligature, ante mortem and homicidal in nature was not

dislodged by the accused persons despite cross-examination of

P.W.11.

32. The appellant no.1 and the victim were last seen together

sharing same bed in the night of November 2, 2014 at the

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CRA 7 of 2021

verandah of the matrimonial home of the victim by P.W.3 and

D.W.1. P.W.3 and D.W.1 are the children of appellant no.1

and the victim.

33. P.W.3 stated that he woke up around 10 o’ clock in the

night to answer the nature’s call. At that time, he saw

appellant no.1 and the victim to be sharing the same bed in

the varandah of their house. He came back after answering

the nature’s call and went back to sleep. He, thereafter, woke

after hearing the sound from outside. He tried to go out of

room but it was locked from outside. Thereafter, appellant

no.1 entered the room and asked him as to whether he knew

about the whereabouts of the victim with mother. He stated

that he did not know of the same. Appellant no.1 told him that

victim ran away with somebody else. P.W.3 called her

maternal uncle over mobile and informed the maternal uncle

about the same.

34. The maternal uncle of P.W.3 being P.W.10 corroborated

P.W.3 with regard to the phone call made by P.W.3 to him in

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CRA 7 of 2021

the intervening night of November 2, 2014 and November 3,

2014.

35. All the prosecution witnesses spoke in unison about the

torture being meted out by the appellant no.1 and his mother

on the victim. It appears from the deposition of the

prosecution witnesses that the marriage of the victim with the

appellant no.1 was turbulent at best. There were at least two

previous attempts to kill her by the appellant no.1.

36. Despite the quality of evidence of torture as against

appellant no.1 and the mother of the appellant no.1, the trial

Court was pleased to acquit the mother of the appellant no.1

from the charges under Section 498A of the Indian Penal

Code, 1860. State did not prefer any appeal from such

acquittal. The learned trial Judge, however, convicted

appellant no.1 in respect of charge under Section 498A of the

Indian Penal Code, 1860.

37. The oral testimony of the prosecution witnesses amply

established that appellant no.1 was guilty of torturing the

victim. He did not provide her with any livelihood. The victim
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CRA 7 of 2021

was left to fend for herself, worked as manual labour and

earned her livelihood. He did not give her adequate food.

38. Appellant no.1 and the victim went to sleep on the fateful

night in the verandah of the matrimonial house of the victim.

P.W.3 and D.W.1 saw the appellant no.1 and the victim

together in such place. Thereafter, the victim went missing, to

be ultimately found dead from the pond nearby her

matrimonial home.

39. Appellant no.1 as the husband and who was last seen

together with the victim, by his two children, did not offer any

explanation in his examination under Section 313 of the Code

Criminal Procedure Code as to how the victim came to be

strangulated to death with such strangulation being homicidal

in nature and her dead body found from the pond.

40. Sambhu Nath Mehra (Supra), Bulu Bag and other

(Supra) and Md. Anowar Hussain (Supra) are of the view that

burden of proof of the prosecution to establish a charge

beyond any reasonable doubt is not reduced by the provisions

of Section 106 of the Evidence Act, 1872. Section 106 of the

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CRA 7 of 2021

Act of 1872 is designed to meet certain exceptional cases in

which it would be impossible, or at any rate disproportionately

difficult, for the prosecution to establish facts which are

especially within the knowledge of the accused and which he

could prove without difficulty or inconvenience.

41. In the facts of the present case, the prosecution did not

produce any person claiming that such person was an

eyewitness to the incident of murder. The victim was

murdered by strangulation and her dead body was thrown into

a pond near her matrimonial home. She was last seen together

with the appellant no.1 by their children being P.W.3 and

D.W.1. Both P.W.3 and D.W.1 stated that appellant no.1 and

the victim shared the same bed on the verandah of their

house. The victim was, thereafter, found dead in the manner

as noted above. Therefore, in the facts and circumstances of

the present case, it was incumbent, by dint of Section 106 of

the Evidence Act, 1872, for the appellant no.1 to explain how

the victim came to be found murdered and her dead body was

discovered from the pond nearby her matrimonial home.

Appellant no.1 despite being given opportunity in his

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CRA 7 of 2021

examination under Section 313 of the Criminal Procedure

Code chose not to offer any acceptable explanation.

42. Sujit Biswas (supra) notes the distinction between the

proof and reasonable doubt and suspicion. It reiterates the

principles that, a Court should ensure that mere conjecture or

suspicion does not take place of legal proof.

43. As noted above, prosecution did not examine any person

as an eyewitness. Prosecution did not bring forth any evidence

establishing any role of the appellant no.2 in the murder of the

victim. Presence of appellant no.2 in the house is established

by the prosecution. However, prosecution did not establish

that, appellant no.2 was present in the same vicinity as that of

appellant no.1 and the victim at the verandah at the material

point of time. That apart, the mother of the appellant no.1 was

also present in the house at the material point of time along

with three children and one cousin of the three children of the

victim. The mother of the appellant no.1 was acquitted of the

charge of murder by the learned Trial Judge with no appeal

being carried from such finding by the State.

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44. On the parity of such reasoning therefore, appellant no.2

is also required to be acquitted on the ground of benefit of

doubt; the prosecution is not establishing the complicity of the

appellant no.2 in the offence of murder or any other charges

as against her. As noted in the Sujit Biswas (supra), mere

suspicion is no substitute of the requirement of proof beyond

reasonable doubt.

45. In such circumstances, we set aside the conviction of the

appellant no.2 and acquit her on the principle of benefit of

doubt.

46. Appellant no.2 is on bail pursuant to order suspending

the sentence awarded as against her. Appellant no.2 will

furnish a bail bond to the satisfaction of the Trial Court which

shall continue for six months from date in terms of Section

437A of the Criminal Procedure Code.

47. So far as appellant no.1 is concerned, we affirm the

conviction and sentence awarded to him by the learned Trial

Judge.
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48. Period of detention of the appellant no.1 undergone will

be adjusted against the sentences awarded. All sentences will

run concurrently.

49. C.R.A. 7 of 2021 is disposed of accordingly.

50. A copy of this judgment and order along with trial court

records be remitted to the appropriate Court forthwith.

51. Urgent photostat certified copy of this order, if applied for,

be given to the parties on priority basis on compliance of all

formalities.

(Debangsu Basak, J.)

52. I agree.

(Md. Shabbar Rashidi, J.)

AD/Dd/Kaushik/ CHC