The State Of West Bengal vs Netai Mondal
2023 Latest Caselaw 5612 Cal

Item No. 01




                   IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL APPELLATE JURISDICTION
                             APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                   And
The Hon'ble Justice Gaurang Kanth

                                     G.A. 5 of 2002

                               The State of West Bengal
                                          Vs.
                                    Netai Mondal

For the Appellant-State              :

For Netai Mondal                     :

Heard on                             :     28.8.2023

Judgment on                          :     28.8.2023


Joymalya Bagchi, J. :-

1.     Appeal is ready for hearing.

2.     None appears for the appellant.

3.     Appeal is directed against judgment and order dated 14.06.2021

passed        by   the   learned   Additional   Sessions   Judge,   2nd   Court,

Murshidabad in sessions trial no. 4 of November, 2000 arising out of

Sessions Serial No.46 of 2000 acquitting the appellant of the charge

under Section 302 IPC.

4.     Prosecution case, as alleged against the appellant is as follows:

       Adhir Mondal (PW 1) alleged on 02.08.1999 at 9.15 A.M.

appellant being the husband of her niece Renuka had inflicted injury
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on her and killed her by throttling. Thereafter, he tied a rope around

her neck and tried to hang her from the window. His wife Saraswati

Mondal (PW 10), Nemai Murari's wife Renuka Murari (PW 11) and

others knocked the door of Renuka's house. Appellant opened the door

and tried to run away. Upon entering the room, the victim was found in

an injured condition with a rope tied round her neck. When PW 1 tried

to catch him, appellant fled away.

5.     On the aforesaid written complaint Jiaganj P.S. Case No.51 of

1999 dated 02.08.1999 under Sections 302/201 of the Indian Penal

Code   was   registered   against    the   appellant.   In   the   course   of

investigation, appellant was arrested. Post mortem shows death was

due to asphyxia by throttling which is homicidal in nature. Accordingly,

charge was framed under Section 302 IPC.

6.      In the course of trial, prosecution examined 14 witnesses and

exhibited a number of documents to prove its case. In conclusion of

trial, on an analysis of the evidence on record, appellant was acquitted.

Hence, the said appeal.

7.     It is pleaded in the petition of appeal that the evidence of the

prosecution witnesses have not been properly appreciated. Learned

Judge has also failed to take into consideration the statutory

presumption under section 113-A of the Evidence Act.

8.      I have considered the evidence on record in the light of the

aforesaid contentions on behalf of the State. I have also perused the

impugned judgment. Learned Judge had analysed the evidence on
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record. He noted PW 1 has not supported the prosecution case. He

merely stated he found Renuka lying in a kneeling position. His

deposition in Court is at variance with the First Information Report. It

was rightly held by the trial Judge contents of FIR cannot be relied on

as admissible evidence to record a conviction.

9.    P.Ws. 2 to 7 are witnesses to the inquest and seizure. Their

deposition does not establish the incriminating circumstances relied

upon by the prosecution to bring home the guilt of the respondent.

10. But one needs to consider the evidence of PWs. 8 to 11 with

regard to presence and role of the appellant at the place of occurrence.

11. Let me assess their evidence in the light of the attending

circumstances. Though PW1 is silent with regard to presence of the

appellant at the place of occurrence, Sarala Mondal (PW 8) deposed on

hearing shouts from Saraswati (PW 10), she came to the spot and found

Renuka in kneeling position. She splashed water on the face of Renuka

and found marks on her face. She noted the presence of the appellant.

Appellant helped to untie the rope from the neck of Renuka on the

direction of Surobala.

12. Namita Mondal (PW 9) was a ten year old child. She deposed she

was on a guava tree. She heard shouts 'save me mother' and 'save me

aunt (mami)', she called her aunt. She found appellant at the house.

13. During cross-examination, she was unable to come out with the

name of her aunt. She admitted she did not tell anyone that appellant

was fleeing away.

14. Saraswati Mondal (PW 10) is the wife of PW 1. She stated she

came to the spot upon hearing the information. She was talking with

Surobala in her house at that time. She found the door of the room

locked from inside. She saw appellant coming out from the house. On

seeing them, appellant left the spot quickly. Surabala caught hold of

the appellant.

15. During cross-examination she admitted she did not tell

darogababu that the door of the house of the appellant was locked from

inside. She also did not tell police that Surobala apprehended the

appellant.

16. Renuka Murari (PW 11) deposed she had also come to the spot.

She stated appellant came there and went inside and then he went

away crossing the wall. Before they could apprehend the appellant, he

managed to escape. During cross-examination, she admitted she had

not heard any sound from the room.

17. Prosecution would rely on the aforesaid evidence to establish that

the appellant was inside the room where his wife had been murdered. I

find that the prosecution witnesses have spoken in different voices with

regard to the said circumstance. PW 1 had come to the spot

immediately after the incident. In court, he was silent with regard to

the presence of the appellant at the place of occurrence. PW 8 who had

also come to the spot, did not state that the door of the room where the

victim was lying was locked. She merely claimed the appellant was

present and had untied the rope from the neck of Renuka. She also did

not support the prosecution case that the appellant was fleeing away

and was apprehended by Surobala. PW 9, a ten year old child claimed

that the appellant was in the house. But one can give little importance

to the evidence of the said child witness who while claiming that she

had gone to the house with her aunt (mami) was unable even to give

out the name of her own aunt.

18. The other two witnesses who seek to incriminate the appellant

are PWs. 10 and 11. PW 10 claimed in chief appellant came out from

the house and tried to flee away when Surobala apprehended him. But

in cross-examination she admitted she did not tell police that the door

was closed from inside and the appellant had tried to flee away.

Deposition of PW 11 with regard to the presence of the appellant inside

the room is contradictory. In-chief she claimed after they arrived

appellant came there and thereafter tried to flee away. But in cross-

examination, she stated that the appellant was inside the room and

tried to flee away when he was apprehended.

19. Thus, the evidence on record with regard to the fact that the

room was closed from inside and the appellant was inside the room are

clearly inconsistent and contradictory. Fact that the appellant had tried

to flee away and was apprehended by Surobala is also an

embellishment stated for the first time in Court. It may not be out of

place to note the vital witness Surobala has not been examined.

20. For these reasons, the trial Court was of the view PWs. 8 to 11

are not worthy of and their depositions with regard to the fact that the

room was closed and the husband i.e. the appellant was inside the

room has not been proved beyond doubt. Conduct of the appellant in

fleeing away from the spot is an embellishment. On the other hand,

evidence has come on record that he subsequently came to the spot

and removed the rope from the neck of his wife.

21. The aforesaid evidence do not establish the foundational facts to

attract the statutory presumption under Section 113-A of the Evidence

Act.

22. Analysis of the evidence by the trial Judge is a reasonable one. If

an order of acquittal is based on sound and reasonable logic, the

appellate court would not substitute its view in place of the trial Court.

23. Hence, the grounds for appeal are not convincing to set aside the

impugned order of acquittal which had been recorded for more than

two decades ago.

24. The appeal is accordingly dismissed.

25. Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial Court at once.

26. Photostat certified copy of this judgment, if applied for, shall be

made available to the appellants upon completion of all formalities.

I agree.

(Gaurang Kanth, J.)                               (Joymalya Bagchi, J.)



as/PA