Calcutta High Court (Appellete Side)
Swapan Kumar Pramanick vs Samir Das And Ors on 16 July, 2026
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Rajasekhar Mantha
And
The Hon'ble Justice Rai Chattopadhyay
CRA 669 of 2017
Swapan Kumar Pramanick
-Versus-
Samir Das and Ors.
For the Appellant/de facto complainant: Mr. Sudipto Moitra, Ld. Sr. Advocate
Mr. Vijay Verma
Mr. Dwaipayan Biswas
Mr. Anik Bhattacharya
For the State: Mr. Kallol Mondal, Ld. P.P
Dr. Pradip Banerjee, Ld. APP
Mr. A. Banerjee
For the Respondent nos. 1-5 /Accused Persons: Mr. Abhijit Ganguly
Mr. Ayan Pramanik
Judgment reserved on:- 14th July, 2026
Judgment pronounced on:- 16th July, 2026
RAJASEKHAR MANTHA, J:-
1. The subject appeal is directed against the judgment and order of acquittal
dated March 30th, 2017 passed by the Additional District and Session
2Judge Fast Track Court- 1, Diamond Harbour, South 24 Parganas in
Sessions Trial no. 02(07)2010 arising out of Sessions Case no. 01(03)07.
The said judgment and order of acquittal acquitted the accused
persons/respondent nos. 1-5 of the charge under section 498A, 306,
302/34 of the IPC. The de facto complainant has filed the subject appeal.
THE PROSECUTION CASE
2. The victim/wife was beaten and thereafter poisoned to death by the
accused persons/respondents. In the night of June 6 th, 2026, Samir Das,
the husband of the victim, assaulted and administered poison to the victim.
He was assisted by the other accused persons namely, Sabita Das, Samar
Das, Jharna Pramanik, Sankar Pramanik and Sanjay Pramanik. They were
present at the matrimonial house of the victim. Sankar Pramanik died after
passing of the judgment of acquittal.
3. Samir Das assaulted the victim and the victim fell on the floor of the PO.
Sabita Das and Samar Das arrived at the PO. The victim was lying
moribund. The victim asked for some water. Sabita Das left the PO and
instead came back with a bottle of poison and gave it to Samir Das.
4. Samir pressed his leg on the throat of the victim and poured the poison in
her mouth. She tried to vomit. Samir Das, however, covered the mouth of
the victim and she was forced to the swallow the poison. Jharna Pramanik
and Sankar Pramanik changed the saree of the victim and dressed her with
a new and fresh saree. The said events were witnessed by PW-3 who was
the son of the victim, hiding under the bed.
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5. The defense version was that the victim was being taken to a local PHC of
Dr. Golam Mosur. The Doctor advised the victim to be shifted to Diamond
harbour SD Hospital for better treatment. On the way to the Hospital,
accused Samar Das allegedly found that the victim’s body turned cold. He
then returned back home with the body of the victim, without going to the
Diamond SD Hospital.
6. Samar Das, the brother of the victim was informed by the accused Samir
Das at around 1:00 AM on the night of July 6 th, 2006, that the victim had
tried to commit suicide by consuming poison and she had been admitted to
a nursing home.
7. Accordingly, PW 1, 6, 8, 9, Swapan Pramanik, Tapan Kumar Pramanik,
Shyamal Ray, Partha Pratim Pramanik, respectively, hired a Tata Sumo
and arrived at the matrimonial home of the victim at Nainan from their
residence under Serampore PS. They found the body of the victim lying on
the veranda covered with a white cloth. They removed the cloth on the face
of the victim and found that froth was coming out from her mouth.
8. PW 1 touched body of the victim and sensed temperature therein, showing
signs of life. PW 1, 6, 8, and 9 tried shift the victim to a hospital, but were
resisted by accused, Sanjay, Sankar and Jharna. They overcame the
resistance and took the victim to Diamond Harbour SD Hospital. The victim
was declared brought dead thereat.
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9. PW 1, Swapan Pramanik, lodged the complaint dated July 7th, 2026 with
Usthi PS. Usthi PS case cum FIR no. 69 of 2006 dated July 7 th, 2006 was
lodged by the said PS under Sections 498A/306/34, IPC.
10. Inquest was conducted on July 7th, 2006, against the UD case no. 145
of 2006 upon being informed by the hospital. He found no signs of injury or
cut on the body of the victim except scratch marks on her face. The
postmortem was conducted on July 7th, 2006. The postmortem doctor
noted that the victim has died due to poisoning. The postmortem doctor
found external injuries on the person of the victim, discussed herein below.
11. Investigation was completed and charge sheet filed. Initially, charges
were framed under Section 498A, and 306/34, IPC against the
respondents/accused persons on July 28 th, 2010. The charge under
Section 302 of the Indian Penal Code was later framed on February 14 th,
2014. Trial Commenced.
THE TRIAL AND EVIDENCE
12. PW 1 Swapan Pramanik, was the de facto complainant and elder
brother of the victim. He lodged the complaint dated June 7th 2006 with
the Usthi PS. He has deposed that initially the victim and accused husband
Samir Das led a happy married life. It lasted for four years from the date of
marriage.
13. PW 1 deposed that the accused husband/Samir was a farmer. His
income was not substantial. Hence, he used to compel the victim to bring
money from her paternal home. Lastly, on the Jamaishasthi of 2006, the
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accused husband sent the victim to her paternal house for bringing a sum
of Rs 50,000, which could not be paid by the family of the victim.
14. PW 1 has deposed at around 1 AM in the night of July 6 th, 2006, Samar
Das, the co-accused and elder brother of the accused husband Samir
Das, telephoned PW 1 and informed that the victim has consumed poison
and is admitted to a nursing home. PW 1 immediately hired a car and
arrived at the PO. The paternal family of the victim was residing in
Sonarpur.
15. PW 1 has deposed that at the PO, he found the victim lying on the
veranda of her matrimonial home. Her body was covered with a white cloth.
He removed the said cloth and found that froth and foam is emanating out
from her mouth. He touched her body and sensed some temperature
therein. He decided to shift her to a nearby hospital.
16. PW 1, 6, 8, 9 were, however, resisted by Sanjay Pramanik, Sankar
Pramanik, and Jharna Pramanik. Ultimately, the said PWs were successful
in taking the victim to the Diamond Harbor SD Hospital. The treating doctor
there declared the victim brought dead.
17. The next morning of July 7th 2006, PW 1 went to the Usthi PS and lodged
a written complaint against the accused persons. PW 1 was a witness to the
inquest report.
18. During cross-examination, the defense suggested to PW 1 that the other
three sisters of the victim namely Dipali, Shyamali, and Tapati are having
their respective matrimonial homes in Sonarpur. The paternal home of the
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victim is in Sonarpur. Thus, the victim was persisting with the accused
husband to purchase a house at Sonarpur and settle thereat. The accused
husband could not make the said purchase and thus the victim committed
suicide. The said suggestion was denied by PW 1.
19. PW 1 has deposed that PW 3, the minor son of the victim and accused
husband, was handed over to them in the Usthi PS. At the time of
handover, the accused husband was in the custody of police.
20. PW 2, Santosh Kumar Pramanik, was the father of the victim. He has
deposed that the victim was treated well in her matrimonial home till the
birth of her son. The accused husband used to send the victim to her
paternal home to demand money on behalf of her husband. Pursuant to
such demands, PW 2 provided rupees five to six thousand in two to three
installments to the victim.
21. PW 2 has deposed that that in the Jamaishashti of 2006 (the occasion
when the son-in-law is fed and presented gifts by the girl’s family), the
accused husband sent the victim to her parental home with a demand of
rupees fifty thousand. PW 2 could not pay the same. Sabita, Samar, and
Samir thereafter snatched all the gold ornaments of the victim.
22. PW 2 has confirmed that the accused Samar Das telephoned PW 1 and
informed that the victim has consumed poison and is admitted to a nursing
home. He has confirmed that PW 1, 6, 8 and 9 went to the matrimonial
home of the victim and found that the dead body of the victim is lying on
the verandah of the matrimonial home. The dead body was covered with a
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cloth. Froth was coming out from the mouth of the victim. He confirmed
that PW 1, 6, 8 and 9 faced vehement resistance from the accused persons
when they made an attempt to take the body of the victim from the
matrimonial home to the hospital for treatment.
23. PW 2 has confirmed that he has given a statement under section 164 of
the CrPC. He has identified the said statement before the trial Court. The
evidence of PW 2 relating to the events in the PO is however hearsay since
he was not present at the place of occurrence. His evidence relating to the
demand of dowry qualifies to be direct piece of evidence.
24. During cross examination, PW 2 has deposed that the financial condition
of the accused husband was good. He confirmed that the accused husband
has some tracts of land. He deposed that in the initial years of marriage, the
accused husband used to visit the parental house of the victim on the
occasion of Jamaishashti and used to stay there for the entire day. He,
however, reduced the said period of stay on the said occasion in the later
years of marriage.
25. PW 2 has confirmed that he has not stated to the police that he has given
rupees five to six thousand to the accused husband in two to three
installments. He offered an explanation that he was unwell when the police
visited their house and thus was unable to talk with the police.
26. PW 2 has confirmed that his other two son-in-law (s) have built houses
in Sonarpur. He however denied that the victim had the intention to settle
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in Sonarpur. He denied victim pressurized the accused husband to
purchase a house in Sonarpur.
27. PW 3, Soumyadip Das, was the minor son of the victim and the
accused husband Samir Das. At the time of the trial, PW 3, was aged about
12 to 13 years. The Ld. Trial Judge put questions to PW 3 to assess
whether he is capable of deposing before the Court.
28. The Ld. Trial Judge put the following questions to PW 3- what is the
shape of the earth to which, PW 3 said that the earth is round. His answer
further distinguished the shape of the earth from that of an apple. He
answered name of the river that flows beside the Diamond Harbor. He
distinguished that the sun is not a planet but a star. PW 3 was thus
capable of deposing before the Court.
29. PW 3 has deposed that the victim was assaulted by the accused persons,
Samar Das, Samir Das, and Sabita Das. Samir Das forcefully administered
poison to the victim. He has described in detail the events of the said fateful
night. He deposed that he hid under the bed after seeing his mother beaten
by his father and other accused persons
30. PW 3 has deposed that on July 6th, 2006 at around 12:00 a.m., he was
sleeping with his mother in the PO. His mother was not feeling well. The
door was locked from inside. They woke up hearing the shouting and
kicking on the said door by the accused husband. He was drunk. The victim
opened the door. The accused husband barged into the room and started
beating the victim. Samar Das and Sabita Das, the brother and sister-in-
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law of the accused husband, arrived at the PO and joined the accused
husband. Samar and Sabita were present in the matrimonial home since
morning of the fateful day.
31. PW 3 has deposed that when his mother had passed stool and
discharged bodily fluids as a result of the beating. She was gasping for
breath and crying and asked for water. PW 3 has specifically related the role
of Sabita Das from that moment. Sabita Das rushed outside the PO and
returned with a can of poison. She handed it over to the accused husband.
The latter put his leg on the throat of the victim and forcefully poured the
poison in the mouth of the victim. Sabita and Samar were present at that
time. The victim to get rid of the poison tried to vomit it out. The accused
husband covered the mouth of the victim.
32. PW 3 has thereafter narrated the role of Sankar Pramanik and Jharna
Pramanik. They changed the saree of the victim, which she was wearing at
the time of assault and forceful administration of poison, and dressed her in
a fresh saree.
33. PW 3 has deposed the victim was taken to a hospital by Maruti van. The
victim was treated by Dr. Golam Masur. She was given an injection. The
doctor advised the victim to be taken to a proper hospital. However, on the
way to the Diamond Harbour Hospital, Sankar Pramanik touched the body
of the victim and sensed that the body of the victim. He said that the
victim’s body was cold thus there was no use of taking her to the Hospital.
He turned the car back to the matrimonial home of the victim.
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34. PW 3 has deposed the dead body of the victim was put on a mat in the
veranda of the house. Sabita Das and one girl named Ivy put PW 3 to sleep.
On the next morning, Sabita Das and Ivy asked him to hand over the diary
of the victim, which was handed over by PW 3 to them.
35. PW 3 has deposed that Samar Das and Sabita Das took him to Sabita’s
paternal house and later to an unknown house. He stayed there for a few
days.
36. PW 3 has confirmed the version of PW 1 and 2 that the said Samar and
Sabita Das brought him to Usti Police Station. His maternal uncles were
present at the said police station. PW 3 started residing with his maternal
uncles.
37. PW 3 has confirmed he has given a statement before the judicial
Magistrate under section 164 of the Criminal Procedure Code. He has
identified the accused persons in the court.
38. During cross-examination, PW 3 has deposed that the police did not
meet him during his stay with Samar Das and Sabita Das. The police met
him for the first time in the house of his maternal uncle. He has deposed
that the accused husband and victim frequently used to enter into a heated
altercation. He denied that his mother has committed suicide.
39. The defense suggested to PW 3 that since his mother came to learn that
the accused husband is a dacoit, she committed suicide. The said
suggestion was denied by PW 3. PW 3 has firmly confirmed the entire case
of the prosecution.
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40. PW 4, Arun Pramanik, was the cousin brother of the male accused
persons. He has deposed that he had no knowledge of the murder of the
victim. He was declared hostile by the prosecution. During cross-
examination by the prosecution, he denied the entire prosecution case.
However, he revealed that he has good relations with the accused persons.
41. PW 5, Goutam Das, was the neighbor of the accused persons. He has
deposed that the police did not interrogate him. He has denied the entire
case of the prosecution. He was declared hostile by the prosecution. During
cross-examination, he has deposed that he has good relations with the
accused persons. He has, however, clarified that he is not deposing falsely
because of such good relations.
42. He was also cross-examined by the defense. He has deposed that in
2006, when the fateful incident took place, facility of private vehicle
transport did not start in the village.
43. He deposed that a person cannot be taken to any nursing home by Tata
Sumo or Maruti car since none of the villagers had one. A person has to
undertake a break journey to reach the hospital. First, one has to reach
Usti by a hand pulled rickshaw van. Thereafter, one has to hire Tata Sumo
or Maruti car to reach the hospital.
44. PW 5 deposed that Sankar and Jharna, did not live in the matrimonial
home of the victim. They lived at Belpukur under Sonarpur PS, 30 Kms
from the matrimonial village of the victim. He has deposed that Sanjay was
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not a regular relative of Samir i.e. Sanjay and Samir were not related to
each other by blood.
45. PW 6, Tapan Kumar Pramanik, was another elder brother of the
victim. He has described the relations amongst the accused persons. Samir
Das was the husband of the victim. Samar Das was the elder brother of
Samir. Sabita Das was the wife of Samar Das. Sankar Pramanik was the
cousin brother of Samir Das. Jharna Pramanik was the wife of Sankar
Pramanik. Sanjay Pramanik was the son of the paternal aunt of Samir.
46. PW 6 has confirmed the version of PW 1, 2, 6, 8, and 9. He has deposed
that he, Swapan Pramanik, Partha Pratim Pramanik, and Shyamal Roy,
who was the husband of the sister of the Pramaniks, arranged a car and
came to Nainan after receiving information, from Samir, that the victim has
consumed poison and is admitted to a nursing home.
47. In addition to PW 1 and 2, PW 6 also saw the victim lying on the veranda
of her matrimonial home and her body was covered with a piece of white
cloth. They removed the cloth from the face of the victim and saw froth and
foam coming therefrom. They did not find Samir, Samar, and Sabita at the
PO. They also did not find PW 3 at the PO. He found Sankar, Sanjay, and
Jharna at the PO.
48. PW 6 asked the whereabouts of the Samir, Samar, and Sabita to Sankar,
Sanjay, and Jharna. The latter(s) however could not give any answer. PW 6,
1, 8 and 9 made an attempt to take the body of the victim to the nearest
hospital. They were, however, resisted by Sankar, Jharna, and Sanjay. PW-
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6, PW-1, and PW 8 and PW 9 were, in fact, assaulted by lathi and
broomstick by the said accused persons.
49. PW 6 confirmed the version of PW-1 and 2 that they managed to take the
body of the victim to the Diamond Harbour SD Hospital, where she was
declared brought dead.
50. The accused Sanjay who some time ago was resisting PW 1, 6, 8, and 9,
now informed them that the victim was first taken to the nursing home of
Dr. Golam Masur. Sanjay further informed them that Samir, Samar and
Sabita were assaulting the victim since the morning of July 6th, 2007.
51. During cross-examination, PW 6 reaffirmed the entire prosecution case.
He added that Samir was not poor. The accused husband did not live in
penury. PW 6 reaffirmed that the victim has not committed suicide. PW 6
was suggested that due to the difficult financial condition of the accused
husband, the victim has committed suicide. He denied the same.
52. PW 7, Subrata Halder, was the neighbor of the accused persons. He
has deposed that he is not the relative of the accused persons. He has
denied the entire prosecution case. He was declared hostile by the
prosecution.
53. PW 8, Shyamal Ray, was the brother-in-law of the victim and the
scribe of the FIR. He was married to one sister of the victim. He has
deposed that on July 6th, 2006, at about 12:10 to 12:50 AM at night,
Swapan Pramanik, PW 1, informed him that the accused Samar Das has
informed PW 1 that the victim has committed suicide by consuming poison
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and is admitted to a nursing home. He has confirmed the version of P.W. 1,
2, and PW 6 that they reached at the P.O. by hiring a Tata Sumo car.
54. PW 8 has deposed that Sankar, Sanjay and Jharna, the accused
persons, were standing on the veranda where the body of the victim was
kept. He has deposed that they, however, did not find Samir, Samar, Sabita
and the minor son of the victim at the PO. PW 8 asked Sankar the
whereabouts of Samir, Samar and Sabita. Shankar, however, could not give
any answer.
55. On the lines of P.W. 1, 2 and PW 6, PW 8 has deposed that the victim’s
body was covered with a white cloth. Upon removing the cloth, froth and
foam was seen to be coming out from her mouth. He also deposed that
Shankar, Sanjay and Jharna resisted them when they made an attempt to
take the body of the victim to a nearby hospital.
56. PW 8 has deposed along the lines of PW 6 that Sanjay told them that
since the morning of the fateful day, Sabita, Samir, Samar, Sankar and
Jharna were torturing the victim. Sanjay informed PW 8 that the victim got
senseless during such assault and torture. Sanjay further informed that the
victim came to her senses at night and asked for a glass of water. Sabita
brought a can of poison and Samir rammed it into the mouth of the victim.
57. PW 8 has deposed that Sanjay has revealed to them that the victim was
taken to the nursing home of one Dr. Golam Masur, who declared the
victim dead. Sanjay, however, did not mention any administration of an
injection on the victim.
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58. PW 8 has identified his signature in the FIR. He was also an inquest
witness. He was also a witness to the seizure list. He has deposed that, they
were searching for the son of the victim. The son of the victim was brought
to the Usti Police Station. From there, he started residing with Swapan
Pramanik.
59. During cross-examination, PW 8 has deposed that the financial condition
of the accused husband Samir was good. PW 8 was suggested that the
victim had committed suicide due to the financial stringencies in the family
of Samir. PW 8 denied the said suggestion.
60. PW 8 has deposed that he first went to the Diamond Harbor Police
Station and informed that the victim has been murdered in her matrimonial
home. He was advised by the Diamond Harbor PS to report the matter to
the Usti PS.
61. PW 8 has deposed that Sonarpur to Nainan is not connected by any bus
route. He has deposed that to reach Nainan, one has to travel via the train.
He has deposed that he has no land phone.
62. PW 9, Partha Pratim Pramanik, was another brother of the victim.
He has deposed that the victim told him that the accused persons used to
torture her. The accused husband used to pressurize the victim to bring a
sum of Rupees 50,000 from her paternal home. He came to learn from PW 3
that on July 6th, 2006, the victim was again assaulted and tortured in her
matrimonial home.
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63. During cross-examination, PW 9 has deposed that the accused Sanjoy
Pramanik has told him that the victim was first taken to the doctor Golam
Masur for treatment. He confirmed that Samar Das has constructed a
house at Sonarpur. He confirmed that PW 3, the minor son of the victim,
was taken to his house from the Usti police station. PW 3 did not have any
personal articles with him when he was handed over to PW 9 in the police
station.
64. PW 10, Ramendra Nath Mitra, was the investigating officer of the case.
PW 10 has deposed that Arun Pramanik, Gautam Das, Subrata Haldar and
Shyamal Roy have stated before him that the accused husband used to
torture the victim. The victim was pressurized to bring a sum of rupees
50,000 only from her parental home.
65. Samar Das, Sankar Pramanik (since deceased), Jharna Pramanik and
Sanjay Pramanik also used to abuse and torture the victim. The said
witnesses have told PW 10 that on the fateful day, the said accused persons
were torturing the victim since morning. The victim committed suicide by
consuming poison upon being unable to bear any further torture.
66. PW 10 has deposed that he seized two pages from one diary from the
house of Swapan Pramanik at Sonarpur. He confirmed that he has not
examined Dr. Golam Masur, who is stated to have initially treated the
victim.
67. During cross-examination, PW 10 has deposed that PW 2, Santosh
Pramanik, the father of the victim, has not informed him that the accused
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husband created pressure on the victim for bringing money from her
paternal home. PW 2 did not reveal to the said I.O. that he paid a sum of
rupees five to six thousand to the accused husband. He also did not inform
the I.O. that the accused husband sent the victim wife to collect a sum of
50,000 only from her parental home.
68. During cross-examination, PW 10 has deposed that the PW 3, the minor
son of the victim, did not inform the IO that Sabita left the PO and brought
with her a can of poison and handed it over to Samir. PW 3 did not inform
the IO that Jharna and Sankar undressed the victim and dressed her with a
new saree.
69. PW 10 has deposed that he did not find any blood or stool or urine at the
PO. PW 10 has, however, confirmed that PW 3 has informed him that the
said Sabita and Ivy demanded the diary of the victim from PW 3, which was
handed over by PW 3 to them.
70. PW 10 has deposed that Shri Arun Pramanik, PW 4, has informed him
that the accused husband Samir was a farmer. He used to consume
alcohol. Upon returning home at night under the spell of alcohol, he used to
torture and beat his wife/ victim. Shri Arun Pramanik further informed the
IO that Samir sent the victim to bring rupees fifty thousand from her
paternal house. The said money was demanded to start a business.
71. PW 4 has informed the I.O. that Samir and Sabita were visiting
matrimonial home of the victim on the fateful day. The victim was beaten in
the morning by Samir. The victim was thereafter again beaten by Samir,
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Sabita, Jharna and Sankar in the evening. The victim became senseless
after being assaulted in the evening. She sought for a glass of water. Sabita
handed over poison instead in the hands of Samir, who rammed the poison
in the mouth of the victim.
72. PW 4 has informed the I.O. that the victim was first taken to a nursing
home. Thereafter, she was brought back to her matrimonial home. The
decision to bring her back to the matrimonial home and not to take her to
the Diamond Harbour Sub-Divisional Hospital was taken at the instance
the deceased accused Sankar Pramanik. He found that the victim’s body
has no temperature.
73. The accused persons were examined under section 313 of the CrPC. They
claimed to be innocent and were falsely implicated. Based on the evidence
on record, the Ld. trial Judge held that the evidence of PWs are
inconsistent with each other. Some of the PWs have deposed that the
accused husband and family demanded dowry. Some of them, however,
have not mentioned about the demand of dowry.
74. The Ld. trial Court held that eyewitness account of PW 3 is not
consistent with the medical evidence flowing from the postmortem report.
The trial judge therefore acquitted the said accused person.
75. The de facto complainant PW 1 preferred an application for special leave
to appeal C.R.M.S.P.L. 59 of 2017 under section 378(4) of the Code of
Criminal Procedure against the said judgment and order of acquittal. By
order dated November 10th, 2017, a coordinate Bench granted special leave
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to prefer an appeal. By order dated December 15th, 2017, the appeal C.R.A.
669 of 2017, being the subject appeal, was admitted.
ANALYSIS OF THIS COURT
76. The prosecution has relied on the eyewitness account of PW 3, the minor
son of the victim wife and accused husband, to establish the guilt and role
of the accused persons in the death of the victim. PW 3 has witnessed the
murder of his mother.
77. In addition to the above, the prosecution has also relied on the eye
witness account of the PW 1, 6, 8 and 9. The said PWs have witnessed the
events at the PO and conduct of the accused persons thereat, after
commission of the crime. The accused Samar Das informed PW 1 that the
victim has been admitted to a nursing home after she tried to commit
suicide by consuming poison. PW 1 in turn informed PW 6, 8, and 9 about
it.
78. The evidence of PW 3 needs to be discussed first, given that he was an
eye-witness to the events that took place in night of July 6th and early
morning of July 7th, 2006. PW 3 was a minor. His ability to depose before
the Court has been assessed by the Ld. trial Judge. Upon perusal of the
questions put to him and answers given by PW3, we are satisfied that PW 3
was capable of deposing before the Court.
79. PW 3 understood the importance of the occasion in which he was called
on to depose. He was aware that he was narrating the facts and
circumstances relating to the death of his mother at the hands of his own
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people, namely, his father and the brothers and sisters of his father. This is
evident from his detailed evidence tendered before the Court.
80. The Ld. trial Judge has, however, discarded the evidence of PW 3 on the
ground that the inquest and the postmortem report have not found any
injuries in the person of the victim. PW 3, however, has deposed that the
victim was assaulted by the accused persons since the morning of the
fateful day. He has deposed that his father has put his leg on the throat of
the victim while ramming poison in her mouth. The victim tried to vomit out
the poison. The accused husband covered the mouth of the victim.
81. The Ld. Trial judge held that in absence of the injuries in the inquest and
postmortem report, it cannot be held that the victim has been assaulted by
the accused persons. The PW3’s evidence in this regard was held completely
unreliable.
82. The aforesaid finding of the Trial judge is contrary to the post mortem
report. The said finding is therefore perverse in terms of the dicta in H.D.
Sundara v. State of Karnataka, reported in (2023) 9 SCC 581. It was
held that a perverse finding leading to an acquittal deserves to be set aside.
83. The post mortem report has found the following injuries in the person of
the victim:-
A) Multiple bruises over the face, neck, chest, trunk, wrists, and
limbs;
B) Nail scratch abrasion on the left side of the face;
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C) Extravasation of blood in the occipital (back of head), parietal (side
of head), and orbital (around the eye) regions; and
D) Bruises on the wrists.
84. The first set of injuries are ordinarily a result fist blows and kicks. The
said injuries have been found on the person of the victim. This indicates
repeated assault on the victim. The involvement of multiple persons in the
death of victim/wife, therefore, is established.
85. The next set of injuries are fingernail scratches. The said scratch marks
may have been caused by the assailant while overpowering the victim. This
is ordinarily caused when the victim attempts to remove a hand forced
upon her face or neck. This is consistent with the accused husband putting
his hand on the mouth of the victim when the latter attempted to vomit out
the poison so administered.
86. The third set of injuries are blunt force trauma inflicted on the head.
Such injuries ordinarily result from punches or kicks. Bruising around the
wrists is often suggestive of gripping, restraint, or forceful holding. This
supports an inference that the victim was restrained during the
commission of the crime.
87. The aforesaid injuries are consistent with the assault committed upon
the victim. It is specifically consistent with the evidence of PW 3 that the
husband accused put his leg on the throat of the victim.
88. Learned Counsel for the accused persons/respondent nos. 1 to 5 has
submitted that the PM Doctor was not examined by the prosecution during
22
the course of the trial. Therefore, the post mortem report cannot be
admitted in evidence.
89. Section 294(3) of the CrPC states that when the genuineness of the
document has not been questioned in the trial by the rival party, the Court
may read the said document in evidence. Admittedly, the defense has not
disputed the genuineness of the PM Report. Therefore, the said report
should have been accepted by the Trial Court. In fact, the trial Judge has
considered the PM report and did not find any injuries recorded in the said
report. This finding of the Ld. Trial Judge is palpably erroneous as
discussed above.
90. The Ld. Trial Court has further doubted PW 3 in that he deposed that he
and the victim were sleeping in the room when at 12:00 midnight, the
accused husband aggressively knocked and kicked on the door. The door
was locked from the inside. The victim opened the door, and the accused
husband started assaulting her. The Ld. trial Judge reasoned that a minor
child would not be awake until 12:00 midnight. If PW 3 was indeed awake,
the accused persons would not have assaulted and administered poison to
the victim in front of him.
91. Admittedly the accused husband aggressively knocked and kicked on the
door of the room where the victim and PW-3 were sleeping. This would have
awakened PW 3 as has admittedly awoken the victim. PW-3 hid under the
bed terrified after seeing his mother assaulted, which is quite natural.
Accused Samir may not have given credence to the same as he was drunk
23
and inebriated. The other accused were busy ensuring the death of the
victim. The Ld. Trial judge, therefore, misread, misunderstood and
misplaced this vital piece of evidence.
92. The Ld. trial Judge held that PW 3 did not explain why his uncle Samar
and Sabita joined his father when the latter was assaulting the victim. A
witness is not called upon to explain and justify the reason for the
happening of an event. The same amounts seeking opinion from the
witness. Samar and Sabita were alerted by the assault of the wife at the
hands of the accused husband. The victim definitely would have raised a
hue and cry during such an assault. The presence of Samar and Sabita is
not out of the ordinary.
93. The Ld. Trial Judge thus has failed to see the irresistible inference
flowing from the evidence on record that the Sabita and Samar were alerted
by the hue and cry of the victim. The Ld. Trial judge has further committed
a fundamental error by failing to note that a witness states the event, but
not its cause. The Ld. Trial Court has insisted for the cause/justification of
the event from PW 3.
94. The Ld. trial Judge disbelieved the version of PW3 that the accused,
Sankar and Jharna, removed the saree of the victim and dressed her in a
fresh and new saree. It was held that PW3 deposed that the accused
husband placed his leg on the throat of the victim and forcefully
administered poison. The poison, therefore, would have spilled over on the
24
floor of the PO. No remains of poison were however found at the PO during
investigation.
95. The Ld. Trial Judge held that it was deposed that the victim was laid
down on the floor, tortured, and poisoned. The said acts would leave marks
of struggle on the floor of the PO. Neither the inquest report nor the post-
mortem report indicated any defecation by the victim. The inquest report
did not mention the presence of poison on the floor of the PO.
96. The victim was assaulted when she was in a saree. The victim suffered
injuries on her person. This is established by the post mortem report. The
injuries discussed hereinabove indicates that the victim was assaulted by
multiple persons. She also offered resistance to them. The saree worn by
the victim at the time of assault therefore may have torn or soiled by body
waste and discharge. Thus, the accused persons had to change the saree in
question.
97. Poison was forcefully administered to the victim. The victim tried to
vomit it out. The saree thus will contain remains of the poison. The saree
would bear testimony to poison administered to the victim. The accused
persons thus changed the saree so also have cleaned the floor of the PO.
98. The victim was first taken to a nursing home. On the way from the
nursing home to Diamond harbour SD Hospital, the accused person Sankar
checked the body temperature of the victim and announced that the victim
had died. This is clearly a part of the plan of the accused husband not to
take the victim to the Hospital and let her die. The victim was thereafter
25
brought to the matrimonial home and was laid down on the veranda. PW-3
has deposed this.
99. Upon arrival at the PO, PW 1, 6, 8 and 9 found that the body of the
victim is kept on the verandah. They however found that the victim’s body
has some temperature, indicating signs of life. The Ld. trial Judge therefore
held that the evidence of PW 1, 6, 8, and 9 is inconsistent with that of PW-3
since PW 3 has not deposed about any signs of life in the victim after the
latter was brought to her matrimonial home. The Ld Trial Judge failed to
notice that if the body of the victim was warm at the matrimonial house,
she could have survived if taken to the Diamond Harbour SD Hospital from
Dr Mosur’s Nursing home.
100. The said checkup of the body temperature of the victim was done by
laymen. Therefore, the evidence of PW 3 should not be discarded by placing
reliance on the medical opinion of the layperson as to when the victim died.
This is one of the many fundamental errors of law in the impugned
judgment
101. The conduct of the accused persons in first taking the body of the victim
to a private nursing home, thereafter bringing it back to her matrimonial
home on finding that her body has no temperature exposes the guilt of the
accused person. It must be held that if at all the accused persons had taken
the victim to the private nursing home upon finding that she has tried
commit suicide, the accused persons ought to have cited the said doctor of
the private nursing home as a witness. It true that the prosecution should
26
prove its case. At the same time, an adverse inference would be drawn
against the accused persons when they seek to reply on an event, but insist
the prosecution to prove it by adducing evidence.
102. The victim being taken to the said private nursing home, if at all taken,
was under the direct, special and singular knowledge of the accused
persons. They therefore ought to have adduced evidence of this event in the
trial, if at all they took the victim thereat.
103. On the evidence of PW-3 a child witness, it was held in State of M.P. v.
Ramesh reported in (2011) 4 SCC 78, as follows:-
12…….A child is always receptive to abnormal events which
take place in his life and would never forget those events for
the rest of his life. The child may be able to recapitulate
carefully and exactly when asked about the same in the future.
In case the child explains the relevant events of the crime without
improvements or embellishments, and the same inspire confidence
of the court, his deposition does not require any corroboration
whatsoever. The child at a tender age is incapable of having any
malice or ill will against any person. Therefore, there must be
something on record to satisfy the court that something had gone
wrong between the date of incident and recording evidence of the
child witness due to which the witness wanted to implicate the
accused falsely in a case of a serious nature
Emphasis applied
104. Witnessing the death of one’s mother at the hands of one’s father, uncles
and aunts is indeed an abnormal event in the life of an individual. The
same being witnessed by a minor child of seven years old only exacerbates
the situation. The evidence of PW 3, therefore, cannot be brushed aside.
The evidence describes in detail the events that unfolded on that fateful
day. PW 3 had no motive to falsely implicate his own father and the siblings
27
of his father. In the State Of Madhya Pradesh v. Balveer Singh,
reported in 2025 INSC 261, it was held as follows:-
36. ……It added that a child witness who has withstood his or her
cross-examination at length and able to describe the scenario
implicating the accused in detail as the author of crime, then minor
discrepancies or parts of coached deposition that have crept in will not
by itself affect the credibility of such child witness….
Emphasis Applied
105. The Ld. Trial judge has held that PW3 is a doubtful witness, given that
his statement under Section 164 of the CrPC was recorded 20 days after
commission of the crime. PW3 gave a statement under Section 164 of the
CrPC when he was residing in the home of his maternal uncle. Thus, PW 3
was susceptible to tutoring by his maternal uncle, the brother of the victim.
This state of affairs, therefore, created a doubt in the mind of the trial
Court.
106. After the death of the victim, PW 3 was in the custody of the accused
persons, namely, Sabita and Samar. He was handed over to the police seven
days thereafter. From the police station, he was taken to his maternal
uncle’s home. Sufficient explanation, therefore, is on record as to why the
statement of PW 3 under Section 164 of the CrPC was recorded 20 days
later.
107. PW 3 was a minor, who witnessed the crime against his mother,
committed by his own family members, namely, his father, uncle and
aunts. Therefore, PW 3 was under trauma, and he was given time to settle
and structure as to what he witnessed on the fateful day.
28
108. In Balveer Singh decision (supra) on the similar set of facts, the Court
held as follows:-
39. Indisputably the police statement of PW6 came to be recorded after
18-days of the incident. Although the police was well aware that she was
a vital witness to the entire case and could guide the investigation in the
right direction, yet to mechanically discard her testimony solely on
the ground of delay alone was not warranted in the peculiar facts
and circumstances of the case, particularly when no question in
this regard was put to the IO so as to give him an opportunity to
explain the reason for such delay.
43. Thus, even if the accused had failed in putting a question in regards
to delay in examination of PW6, the presiding judge was duty bound to
put this question to the IO in exercise of his powers under Section 165 of
the Evidence Act. Since in the present case no question whatsoever
was put to the IO to explain the reason for the delay in
examination of Rani, PW6, we should not willingly jump to discard
the testimony of PW6 on the ground of delay alone, and ought to be
circumspect while scrutinizing the effect of such delay. The court in
such a situation would be required to carefully see whether there is
anything palpable on the face of it to indicate any malice at the end of
the investigating agency in belatedly examining such witness.
45. One another reason for the High Court to discard the testimony
of PW6 on the ground of being tutored was due to the fact that at
the time of recording of her statement, PW6 was residing with PW3,
the complainant herein who is her maternal uncle and was also at
inimical terms with the accused. However, the High Court appears to
have lost sight of the fact that PW6 at the relevant point of time was
only of seven years of age. She had not only lost her mother but
had also been abandoned by her father i.e., the respondent accused
herein who went absconding. In such circumstances, the only
option available to PW6 was to reside with her maternal uncle.
Where else does the High Court expect a child of such tender age in such
circumstances to reside? How could the High Court even possibly
expect such child to go to the police station unaccompanied by any
adult family member to give her statement? The testimony of PW6
could not have been discarded solely on the ground that it was recorded
in the presence of PW3, an interested witness who is at inimical terms
with the accused, especially in view of the facts narrated above. The
courts are expected to deal with such cases in a more realistic manner
and not discard evidence on account of procedural technicalities,
perfunctory considerations or insignificant lacunas.
Emphasis Applied
29
109. The Court therefore has to examine the evidence of a child witness, who
has lost his mother in the hands of his family members, by factoring in his
lived realities after death of his mother. The Court should appreciate that
the minor child having witnessed the death of his mother, is equally a
victim.
110. In the present case, the accused husband was arrested. PW 3 had two
choices before him- one to live with the family of the accused father.
Second, to live with the family of his deceased mother. PW-3 chose to stay
with his maternal family given the fact that he saw his mother killed by the
accused persons.
111. PW 3 was taken to the police station and was handed over in presence of
the victim’s family and family of the accused husband. PW 3 was not
compelled to live with his maternal uncle. Instead, the circumstances of the
day called upon him to live with the family of the victim since the allegation
was that his mother has been killed by his father and family.
112. The Ld. Trial judge has held that PW 3 may be tutored. There is no
straight jacket formula to determine whether a witness has been tutored or
not. In Balveer Singh( supra), it was held as follows :-
50….., we take this opportunity to explain what is meant by a “tutored
testimony” and the test for determining or ascertaining a tutored
testimony. Where there has been tutoring of any witness, the same can
possibly produce two broad effects in their testimony; (i) improvisation
or (ii) fabrication.
51. Improvisation refers to instances where the tutored witness in
question adds new details, alters facts, or provides an inconsistent
version of events that were not previously stated in their initial
statements, such as those given to the police in their statement
30under Section 161 of the Cr.P.C. In such situations, the
improvisation by way of tutoring must be eradicated only in the
manner envisaged under Section 162 of the Cr.P.C. read with
Section 145 of the Evidence Act.
52. However, where the allegation of tutoring pertains to fabrication –
meaning that certain portions of both the testimony and the
previous statement of a particular witness have been doctored or
falsified – in such circumstances twin conditions would have to be
proved, namely; (i) the possibility or opportunity of the witness
being tutored AND (ii) the reasonable likelihood of the tutoring
53. The first condition, namely the ‘possibility or opportunity of the
witness being tutored’ can be established by demonstrating or laying
down certain foundational facts that suggest the probability that a
part of the testimony of the witness might have been tutored. This
may be done either by showing that there was a delay in recording
the statement of such witness or that the presence of such witness
was doubtful, or by imputing any motive on the part of such witness
to depose falsely, or the susceptibility of such witness in falling
prey to tutoring. A mere bald assertion that there is a possibility
of the witness in question being tutored is not sufficient.
54. The second condition ‘reasonable likelihood of tutoring’ requires that
the foundational facts established in the first step be further proven or
cogently substantiated before any portion of the witness’s testimony can
be deemed tutored. This may be done by leading evidence to prove a
strong and palpable motive to depose falsely that was imputed to
the witness, or by establishing that the delay in recording the
statement is not only unexplained but is indicative and suggestive
of some unfair practice by the investigating agency for the purpose
of falsely supporting the case of the prosecution as held in Ranbir
(supra), or by proving that the witness fell prey to tutoring and was
influenced by someone else either by cross-examining such witness
at length that leads to either material discrepancies or
contradictions, or exposes a doubtful demeanour of such witness
rife with sterile repetition and confidence lacking testimony, or
through such degree of incompatibility of the version of the witness
with the other material on record and attending circumstances that
negates their presence as unnatural.
Emphasis applied
113. Improvisation of evidence by a witness is the addition of a new detail or
mere modification of a fact stated by him during the investigation.
31
Improvisation has to be established by confronting the witness in the
witness box. Improvisation is not material alteration of a stand of a witness
taken pre-trial. During the trial for completeness, a witness may add what
he missed to state during the investigation or even for that matter what was
not stated under Section 164 of the CrPC.
114. During cross-examination, the Investigating Officer, PW 10, has deposed
that certain facts deposed by PW3 during the course of the trial were not
stated to him during investigation. In the statement given under Section
164 of the CrPC, PW3 did not state that Sabita left the PO and returned
with a can of poison.
115. The said improvisation is, however, not fatal given that the substance of
the statements given before the police and Judicial Magistrate by PW3 has
all along remained the same. The substance is that the accused husband
started assaulting the victim. He was joined by Sabita and Samar. Sabita
fetched the poison and handed over the same to the accused husband. The
husband forced the poison in the mouth of the victim. Thereafter, the saree
of the victim was changed by Jharna Pramanik and Sankar Pramanik. The
testimony of PW3 in this regard has remained uncontroverted during the
course of the trial.
116. However, fabrication of evidence becomes fatal to the prosecution case.
Fabrication of evidence amounts to making false statements before the
Court. The same can be proved by a two-fold test: whether the witness has
the opportunity to be tutored by a person. If the availability of opportunity
32
is established, the reasonable likelihood of the witness being tutored has to
be further established.
117. In the present case, the maternal uncle of the victim had the opportunity
to teach PW 3 to depose before the Court in particular way. PW 3 was
residing with him. His motive to falsely implicate the accused person is
however not established by the defense. The maternal uncle has lost his
sister who was the mother of the victim. This by itself cannot be a ground to
impute motive to him.
118. The motive if any to falsely implicate the accused persons was required
to be established by cross examining the PW 3. The PW 3 has withstood
cross examination. PW 3 was therefore not a tutored witness. He can at
best be said to have improvised his version. The said improvisation has not
departed away from the substance of the prosecution case. The evidence of
PW 3 therefore is believable.
119. Learned Counsel for the accused/respondent nos. 1 to 5 has argued that
PW 4 and PW 5 have turned hostile during the course of trial. The
prosecution has cross examined them, however was unable to extract any
evidence in favor of the prosecution case.
120. This Court, however, notes from the cross examination of the said PWs
that they have admitted that they had good relations with the said accused
persons. Therefore, it cannot be ruled out that the said accused persons
have distanced themselves from deposing the guilt of the accused persons
in the course of trial.
33
121. Learned counsel for the accused has argued that the IO did not examine
Dr. Golam Rasul, who initially treated the victim. He was a material
witness.
122. PW 5 has deposed that none of villagers of Nainan had any private
vehicle. The victim is stated to have been taken to the nursing home by a
car. This does not align with the evidence of PW 5 that the village had no
private car facility. The victim, therefore, could not be taken to the said
nursing home by car. For this reason, the accused persons did not make
any prayer for summoning any doctor of the said private nursing home
since it cannot be ruled out that the victim may not have been taken to the
said nursing home at all, if there any such nursing home. The evidence
instead points out that the victim was allowed to die in her matrimonial
home.
123. PW 1, 6, 8, and 9 have given eyewitness accounts of the events at the PO,
post-commission of the crime. They have deposed the following events:-
A) The co-accused, Samar Das, informed PW 1 that the victim
had consumed poison and was admitted to a nursing home.
B) The said PWs arrived at the PO and found the body of the
victim covered with a cloth. The body was laid on the ground.
Froth and foam was emanating from the mouth of the victim.
C) The said PWs found that Jharna, Sankar and Sanjay at the
PO. They did not find the PW 3 at the PO, and Samir, Samar,
and Sabita thereat.
34
D) Jharna, Sankar, and Sanjay feigned ignorance when they were
asked the whereabouts of Samir, Samar and Sabita.
E) The said PWs found life in the body of the victim since the
body had a temperature. Jharna, Sankar, and Sanjay resisted
the said PWs from taking the body of the victim to the
Diamond Harbour SD hospital.
F) Sanjay Pramanik is stated to have told PW 6 and PW 8 that
Samir Das tortured the victim in the morning. Samar and
Sabita Das instigated Samir. In the evening, the three of them
assaulted the victim. The victim was administered the poison.
She was taken to the nursing home. While returning
therefrom, the accused Sankar touched the body of the victim
and felt that the victim had died. She was taken back to the
matrimonial home.
124. The presence of all the accused persons at PO, therefore, has been
established. The said accused persons have not denied their presence, and
also the presence of PW 3 at the PO. Direct evidence of the crimes
committed in a matrimonial home need not always be available to the
investigating agency. In Trimukh Maroti Kirkan v. State of Maharashtra,
reported in (2006) 10 SCC 681, it was held as follows:-
14. If an offence takes place inside the privacy of a house and in
such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult for
the prosecution to lead evidence to establish the guilt of the
accused if the strict principle of circumstantial evidence, as
35noticed above, is insisted upon by the courts. A judge does not
preside over a criminal trial merely to see that no innocent man is
punished. A judge also presides to see that a guilty man does not
escape. Both are public duties. (See Stirland v. Director of Public
Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] — quoted with
approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh
[(2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a
duty on the prosecution to lead evidence of such character which
is almost impossible to be led or at any rate extremely difficult
to be led.
15. Where an offence like murder is committed in secrecy inside a
house, the initial burden to establish the case would undoubtedly
be upon the prosecution, but the nature and amount of evidence
to be led by it to establish the charge cannot be of the same
degree as is required in other cases of circumstantial evidence.
The burden would be of a comparatively lighter character. In view
of Section 106 of the Evidence Act there will be a corresponding
burden on the inmates of the house to give a cogent explanation
as to how the crime was committed. The inmates of the house
cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and there is
no duty at all on an accused to offer any explanation.
Emphasis applied
125. In Balveer Singh (supra), it was held as follows :-
22. Where an accused is alleged to have committed the murder of his wife
and the prosecution succeeds in leading evidence to show that
shortly before the commission of crime they were seen together or
the offence takes place in the dwelling home where the husband
also normally resided, it has been consistently held that if the
accused does not offer any explanation how the wife received
injuries or offers an explanation which is found to be false, it is a
strong circumstance which indicates that he is responsible for
commission of the crime.
78. Positive facts must always be proved by the prosecution. But the
same rule cannot always apply to negative facts. It is not for the
prosecution to anticipate and eliminate all possible defenses or
circumstances which may exonerate an accused. Again, when a person
does not act with some intention other than that which the character and
circumstances of the act suggest, it is not for the prosecution to
eliminate all the other possible intentions. If the accused had a
different intention that is a fact especially within his knowledge
and which he must prove (see Professor Glanville Williams–Proof of
Guilt, Ch. 7, page 127 and following) and the interesting discussion–para
36527 negative averments and para 528 — “require affirmative counter-
evidence” at page 438 and foil, of Kenny’s outlines of Criminal Law, 17th
Edn. 1958
86. Cases are frequently coming before the Courts where the
husbands, due to strained marital relations and doubt as regards
the character, have gone to the extent of killing the wife. These
crimes are generally committed in complete secrecy inside the
house and it becomes very difficult for the prosecution to lead
evidence. No member of the family like in the case on board, even if
he is a witness of the crime, would come forward to depose against
another family member.
87. If an offence takes place inside the four walls of a house and in such
circumstances where the accused has all the opportunity to plan and
commit the offence at the time and in the circumstances of its choice, it
will be extremely difficult for the prosecution to lead direct evidence to
establish the guilt of the accused. It is to resolve such a situation that
Section 106 of the Evidence Act exists in the statute book. In the case of
Trimukh Maroti Kirkan (supra), this Court observed that a Judge does
not preside over a criminal trial merely to see that no innocent man is
punished. The Court proceeded to observe that a Judge also presides to
see that a guilty man does not escape. Both are public duties. The law
does not enjoin a duty on the prosecution to lead evidence of such
character, which is almost impossible to be led, or at any rate,
extremely difficult to be led. The duty on the prosecution is to lead
such evidence, which it is capable of leading, having regard to the
facts and circumstances of the case.
Emphasis applied
126. In State of W.B. v. Mir Mohammad Omar and Ors. reported in (2000)
8 SCC 382, it was held as follows:-
31. The pristine rule that the burden of proof is on the prosecution to
prove the guilt of the accused should not be taken as a recognized
doctrine as though it admits no process of intelligent reasoning. The
doctrine of presumption is not alien to the above rule, nor would it
impair the temper of the rule. On the other hand, if the traditional rule
relating to burden of proof of the prosecution is allowed to be wrapped in
pedantic coverage, the offenders in serious offences would be the
major beneficiaries and the society would be the casualty.
Emphasis applied
37
127. The prosecution has proved that all the accused persons were present at
the PO on the fateful day. It has further been established that all the
accused persons were aware that the victim had consumed poison. The said
accused persons have not denied their presence at the PO. The prosecution
has also established that the body of the victim was kept in the matrimonial
home of the victim.
128. The prosecution, therefore, has clearly established that the said accused
persons shared the said matrimonial home with the victim on the fateful
day. Therefore, the accused persons were called upon to answer as to what
exactly happened to the victim.
129. The accused persons have faintly taken the plea that the victim had
committed suicide after consuming the poison. The said plea was a positive
plea advanced by the defense. Therefore, it was incumbent upon the
defense to establish that the poison was voluntarily consumed by the
victim.
130. The accused persons were further called upon to clear the doubt as to
why they had not stopped the victim from consuming the poison in view of
their plea that the victim has voluntarily consumed poison. The case of the
prosecution against the accused persons, therefore, stands established even
if one discounts the evidence of PW3, which, in the present facts of the
case, cannot at all be discounted.
131. The prosecution is duty-bound to prove the events at the PO which can
be witnessed by the witnesses. When a crime has been committed in the
38
privacy of a house, before the arrival of the witnesses, the prosecution
cannot be called upon to prove the events that took place before the arrival
of the witnesses. It was then the accused person who had to prove that
they had not committed the crime.
132. The prosecution is duty-bound to establish that the accused persons
were present with the victim at the PO. Thereafter, the burden would shift
upon the accused, to establish that preponderance of probabilities indicate
they were not at the PO, or, if they had been at the PO, they did not commit
the crime.
133. The direct evidence of PW 3 against the said accused persons, wherein
the role of each accused has been narrated by PW3, read with the evidence
of PW 1, PW 6, PW 8, and PW 9, who narrated the events at the PO after the
commission of the crime, have clearly established that the said accused
persons had the common intention to end the life of the victim.
134. Learned counsel for the accused has argued that the common intention
of the accused persons with the accused husband has not been proved. He
therefore argued that order of acquittal in favor of the other accused
persons therefore, deserves to be upheld.
135. The accused husband could not have poisoned the victim without the
assistance of the accused Samar, Sabita, Jharna, and Sankar. Samar and
Sabita joined the accused husband when the latter was beating his wife.
Sabita fetched the poison for the accused husband to administer it to the
victim. Jharna and Sanjay changed the saree of the victim.
39
136. The accused, Samar and Sabita, had their house in Sonarpur. Their
presence at the PO on the fateful day, therefore, was pre-planned. The said
Sabita and Samar have not denied their presence at the PO. Similarly,
Swapan Pramanik and Jharna Pramanik were also present at the PO, and
they have not denied their presence there. They also lived 30 kilometers
away from the matrimonial home of the victim. Sankar Pramanik, however,
died after passing of the impugned order of acquittal. Thus, the de facto
complainant has not preferred any appeal against his acquittal.
137. The role of Sanjay, however, needs to be discussed. Sanjay was present
at the PO. He, with Jharna and Sankar, has obstructed PW 1, 6, 8 and 9
from taking the body of the victim to the hospital for treatment. The said
Sanjay also happens to be the person who have informed PW 9 that
accused Samar, Sabita, Samir, Jharna and Sankar assaulted the victim
and the Samir administered poison in her mouth.
138. The clear knowledge of Sanjay about the role of the other accused
persons in the murder of the victim and its revelation to PW 9 after
unsuccessfully resisting the PW 1, 6, 8, and 9 from taking the body of the
victim to the hospital, exposes his mental condition to assist the other
accused persons to end the life of the victim. In Krishnamurthy alias
Gunodu and Ors. vs. State of Karnataka, reported in (2022) 7 SCC
521, it was held as follows:-
26……..Common intention can be formed just a minute before the
actual act happens. Common intention is necessarily a
psychological fact as it requires prior meeting of minds. In such
cases, direct evidence normally will not be available and in most
40cases, whether or not there exists a common intention has to be
determined by drawing inference from the facts proved. This
requires an inquiry into the antecedents, conduct of the co-
participants or perpetrators at the time and after the
occurrence. The manner in which the accused arrived, mounted the
attack, nature and type of injuries inflicted, the weapon used, conduct
or acts of the coassailants/perpetrators, object and purpose behind
the occurrence or the attack, etc. are all relevant facts from which
inference has to be drawn to arrive at a conclusion whether or not the
ingredients of Section 34 IPC are satisfied……..
Emphasis applied
139. The accused, Sanjoy is clearly culpable. He prevented the prosecution
witnesses from taking the body of the victim to the hospital. He narrated
each event that took place in the incident to PW 9. He therefore was privy to
the plan and its execution hatched to end the victim’s life. He, however,
chose to remain silent. He remained silent by choice, not by compulsion.
140. The presence of Sanjay at the PO is neither denied nor explained by him.
Thus, he was not a bystander. When he understood that the prosecution
witnesses PW 1, PW 6 PW 8, and PW 9 would not let go off the accused
persons and doubted foul play, he revealed and convicted the other accused
persons for the charge of killing the victim.
141. The presence of these accused persons at the PO has been established.
Their respective roles in assaulting the victim and thereafter wiping out
evidence by changing the saree of the victim have been proved beyond
reasonable doubt. The demand of dowry by the accused husband has been
established. The resistance offered by Jharna Pramanik, Sanjay Pramanik,
and Sankar Pramanik has been established beyond reasonable doubt.
41
142. Therefore, the prosecution has successfully established its case under
Section 498A against the accused husband and under Section 302 read
with Section 34, IPC against all the accused persons beyond a shadow of
reasonable doubt.
CONCLUSION
143. The present case clearly falls outside the scope of abetment to suicide
under Section 306 of the IPC in view of the evidence of PW 3 that the victim
tried to vomit out the poison rammed in the mouth of the victim by the
accused husband. All the accused persons/respondents, therefore, shall
stand convicted of the offences under Section 302, read with Section 34 of
the IPC, and accused husband also under Sec.498A.
144. The accused husband Samir Das, Samar Das, Sabita Das, Sanjay
Pramanik, and Jharna Pramanik are hereby convicted for offence under
section 302 of the IPC. They shall mandatorily suffer a rigorous life
imprisonment for a period of 24 years for the offence under Sec. 302, IPC
from the day they are taken in custody pursuant to this judgment and
order.
145. After serving the period of 24 years, the said convicted persons shall be
eligible to remission as applicable. The period of detention undergone pre-
trial and post-trial shall be set off from the said imprisonment of 24 years.
All the convicted persons shall individually pay a fine of Rs 15,000 only to
the State, which shall be remitted to the High Court Legal Services
42
Authority. In the event, the said convicts are unable to pay the fine amount
they shall further suffer a simple imprisonment of one (1) year.
146. The accused husband is hereby convicted under Sec. 498A of the IPC
and shall suffer a rigorous imprisonment of one (1) year for the offence
under Sec. 498A. The convict husband shall pay a fine of Rs 25,000 to the
State, which shall be remitted to the High Court Legal Services Authority. In
the event, the convict husband fails to pay the aforesaid fine amount he
shall further suffer a simple imprisonment of six (6) months.
147. The convicted Accused private respondents shall surrender before the
Trial Court within three weeks from date. In default the Trial Judge shall
take steps to apprehend them.
148. The State shall take all legal steps for recovering the aforesaid fine.
149. With the aforesaid observations and directions, CRA 669 of 2017 is
allowed and disposed of. There shall be no order as to costs. Consequently,
all connected applications, if any, shall stand disposed of in terms of this
judgment and order.
150. All parties shall act on the server copy of this order duly downloaded
from the official website of this Court.
(Rajasekhar Mantha, J.)
I Agree.
(Rai Chattopadhyay, J.)
