Asraf Mondal & Ors vs State Of West Bengal
2022 Latest Caselaw 1099 Cal

Form J(2)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                             Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                                 C.R.A. 48 of 2016

                                  Asraf Mondal & Ors.
                                         -Vs-
                                  State of West Bengal


      For the Appellants:        Mr. Kallol Kumar Basu, Adv.,
                                 Md. Jannat Ul Firdous, Adv.,
                                 Ms. Tithi Majumdar, Adv.

     For the State:              Mr. Saibal Bapuli, Ld.A.P.P.,
                                 Mr. Bibaswan Bhattacharyya

      Heard on:       22.12.2021


     Judgement on: 09.03.2022.




Bibek Chaudhuri, J.:-

     The    appellants   faced    trial   under   the   charge   of   Section

498A/304B of the Indian Penal Code in Sessions Trial No.15 (4)/11

and were convicted under the charge of Section 498A of the Indian

Penal Code by the Court below. The learned trial Judge passed order

of sentence directing the appellants to suffer simple imprisonment for

two years each and also to pay fine of Rs.1,000/- each, in default, to

suffer simple imprisonment for three months each for the offence

under Section 498A of the Indian Penal Code. The present appeal is

filed by the accused/appellants assailing the judgment and order of

conviction and sentence.

Basirhat P.S. Case No.372 of 2005 was registered under

Sections 498A/304B of the Indian Penal Code on 29 th December, 2005

on the basis of a written complaint submitted by one Md. Anisur

Rahaman Gazi. It is alleged by the de facto complainant that marriage

of his sister Ajmira Khatun was held with the appellant Asraf Mondal.

In the said marriage the de facto complainant gave gold ornaments

and a sum of Rs.40,000/- to the bridegroom as per his demand.

Unfortunately, since after marriage the father-in-law of Ajmira

namely, Ahamed Mondal, mother-in-law, married sister-in-law and

her husband used to torture her both physically and mentally on

illegal demand of dowry. On 28th December, 2005 the accused

persons assaulted Ajmira. The de facto complainant further suspected

that the accused persons poured some poison in the mouth of his

sister forcibly and admitted her to a local hospital. Subsequently, she

died in the hospital on the date of lodging complaint.

It is submitted by the learned advocate for the appellant that

during trial prosecution examined eight witnesses. Amongst them

P.W.1 is the de facto complainant. P.W.2 is a co-villager of the de

facto complainant. P.W.3 Amena Bibi is the mother of the victim.

P.W.4 Baburali Gazi is the father of the deceased. Dr. Anjan Kumar

Ghosh who medically treated the deceased Ajmira Bibi in the

emergency ward of Basirhat Sub-Divisional Hospital deposed during

trial as P.W.5. P.W.6 Dr. Kanchan Kumar Das is the autopsy surgeon.

P.W.7 is a constable of police and P.W.8 is the Investigating Officer.

It is submitted by the learned advocate for the appellant that

apart from P.W.5 to P.W.8, other witnesses are interested witnesses.

P.W.1 is the elder brother of the deceased while P.W.2 and P.W.4 are

her parents.

It is submitted by the learned advocate for the appellant that

marriage of the deceased was held with the appellant No.1 in the

month of July, 2004. She died on 29 th December, 2005 i..e, within

one and half years of marriage. It is deposed by the de facto

complainant that the husband of his sister demanded a sum of

Rs.10,000/- which they could not pay at the time of marriage. They

could not pay at the time of marriage for such failure on the part of

the defacto complainant and his family members Ajmira was

subjected to torture by the accused persons both physically and

mentally. P.W.-1 also stated that he went to the matrimonial home of

his sister seven days before 28 th December, 2005 to hand over a

woolen shawl of her at that time. He noticed Ajmira in a very

depressed condition.

It is pointed out by the learned advocate for the appellants that

the defacto complainant did not state in the written complaint that the

accused persons demanded further sum of Rs. 10,000/- from his

sister. It is alleged by the defacto complainant that his sister was

physically tortured and mentally harassed by the accused persons

since after her marriage. However, during her lifetime he did not

make any complaint in the local police station or to the local

Panchayet against the accused persons. In cross-examination, the

defacto complainant clearly admitted that she developed depression

before her death. As to the cause of death, it is submitted by the

learned advocate for the appellants that charge was framed under

Section 304B of the Indian Penal Code. Only on the basis of suspicion

of the defacto complainant that the accused persons poured some

poison in her mouth on 28th December, 2005.

It is further submitted by the learned advocate for the

appellants drawing my attention to the cross-examination of PW-3,

Amena Bibi who is the mother of the deceased that she admitted that

the deceased could not adjust with her husband and other

matrimonial relations. She further admitted that many a time she

made her understand and sent her back to matrimonial home.

The learned advocate for the appellants also draws my attention

to the evidence of PW-4, Babar Ali Gazi who is the father of the

deceased. Except some omnibus and bald allegation against the

accused persons, nothing specific transpires from the evidence of

PW-4. It is also pointed out by the learned advocate for the appellants

the autopsy surgeon did not give any opinion as to the cause of death

of said Ajmira. Thus, from over all appreciation of evidence, it is

ascertained that the learned Trial Judge framed charge against the

appellants under Section 304(B) of the Indian Penal Code. Only on the

ground of suspicion of the defacto complainant that the deceased

might be administered poison by the accused persons. There is

absolutely no evidence that the deceased was subjected to cruelty or

harassment by her husband and other matrimonial relations for, or in

connection with any demand for dowry. It is true that the victim died

within one and half years of her marriage at her matrimonial home

and she had met with an unnatural death but there is absolutely no

evidence to the effect that soon before her death Ajmira subjected to

torture cruelty and harassment for, or in connection with, any

demand for dowry. In the absence of such evidence the prosecution

was not entitled to get the benefit of presumption under Section

113(B) of the Evidence Act.

The learned Trial Judge held the accused persons guilty for

committing offence under Section 498A of the Indian Penal Code

holding, inter alia, that the prosecution was able to prove that Ajmira

was subjected to physical cruelty and mental harassment to such an

extent which forced her to commit suicide. Surprisingly enough no

case of suicide was made out by the de facto complainant. Except the

defacto complainant who is the elder brother of the deceased and her

parents, no other persons deposed in support of the prosecution case.

It is alleged that the victim was tortured at her matrimonial home.

The prosecution failed to produce any witness from the neighborhood

of the matrimonial home of the deceased. During her lifetime the

defacto complainant or the parents of the deceased did not lodge any

complaint to the police or local Panchayet etc.

It is found from the evidence of the mother of the victim that

the deceased could not adjust herself at her matrimonial home, she

made her understand and used to send her to her matrimonial home

during her lifetime. She noticed that Ajmira used to remain depressed

most of the time.

Therefore, Ajmira might have committed suicide out of

depression as she failed to adjust with her husband and other

matrimonial relations.

For the reasons stated above, the parents ought to have been

entitled to get benefit of doubt. The learned Trial Judge

mis-appreciated the evidence on record denying to offer benefit of

doubt to the appellants. Therefore, the impugned judgment and order

of conviction and sentence cannot be sustained.

As a result the instant appeal is allowed on contest.

The appellants, namely, Asraf Mondal, Ahamed Ali Mondal,

Beauty Khatun @ Charui Bibi and Anju @ Anjura Khatun are acquitted

from the charge and discharged from their respective bail bonds.

Let a copy of this judgment be sent to the learned court below

along with the lower court records.

(Bibek Chaudhuri, J)