Calcutta High Court (Appellete Side)
Biswatosh Mondal & Ors vs The State Of West Bengal on 20 June, 2025
2025:CHC-AS:1090
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Prasenjit Biswas
C.R.A. 564 of 2010
Biswatosh Mondal & Ors.
-Versus-
The State of West Bengal
For the Appellant : Mr. Q.A.M Firoz,
Ms. Torsa Min Bahar,
Ms. Shreya Srivastava,
Mr. Shibotash Naskar,
Mr. Debjit Ghosh.
For the State : Mr. Sanjay Bardhan,
Mr. Pravas Bhattacharya.
Hearing concluded on : 12.06.2025
Judgment On : 20.06.2025
Prasenjit Biswas, J:-
1.
The impugned judgment and order of conviction passed by the learned
Additional Sessions Judge, Fast Track Court-II, Baruipur, South 24 Parganas
dated 11th May, 2010 in S.T. Case No. 10(4)2009, S.C. No. 45(3)/2007 is
assailed in this appeal on behalf of the appellants/convicts.
2025:CHC-AS:1090
2
2. By passing the impugned judgment and order these appellants are found
guilty for commission of offence punishable under Section(s) 448/323/34 of
the Indian Penal Code and sentenced to suffer simple imprisonment for six
months each for the offences punishable under Section 448 of the Indian
Penal Code and they are also sentenced to suffer simple imprisonment for
another one year each for the offence punishable under Section 323/34 of the
Indian Penal Code. But the accused persons namely, Sukumar Mondal and
Dipankar Naskar are found not guilty to the charge under Sections
448/307/354/334 of the Indian Penal code and they are accordingly
acquitted from the case.
3. Being aggrieved and dissatisfied with the impugned judgment and order of
conviction passed by the learned Trial Court, the present appellants have
preferred this instant appeal.
4. During pendency of this appeal the appellant-convict no. 1, Biswatosh Mondal
was expired on 18.04.2024 and the appeal stood abated against him.
5. In short campus the story of the prosecution is that:
“One Binoy Bhusan Dey, husband of the victim lodged a written
complaint before Kolkata Leather Complex Police Station stating
interalia, that they are the tenants under Gopal Mondal having
residence at Bamanghata. On 05.07.2005 at about 9.30/10A.M. the
accused persons committed criminal trespass by entering into his
tenanted room and dragged his wife after covering her throat with cloth
from the tenanted room to the house of the accused Biswatosh Mondal.
The accused persons closed the gate with lock and bind the victim at
2025:CHC-AS:1090
3the jackfruit tree with rope and thereafter she was assaulted by
Biswatosh Mondal and his wife Anima Mondal with bamboo stick on
her person. The other accused persons who were present at the spot
told Biswatosh and his wife to murder the victim. It is further stated
that at the relevant point of time this de-facto complainant was not
present at the spot and he stayed at fishery. It is said that the accused
Biswatosh Mondal and his wife Anima Mondal also outraged the
modesty of his wife by tearing her wearing apparels. Thereafter, Gopal
Mondal and his children informed the incident to Nemai Naskar at
Bamanghata Bazar and thereafter, the owner of the fishery namely,
Nemai Naskar along with others went to the house of the Biswatosh
Mondal and rescued the victim when she was tied up with jackfruit
tree and took the victim at Bamanghata Bazar and handed over her to
this de-facto complainant. It is said that if Nemai Naskar did not
rescue the victim then Biswatosh Mondal and his wife would kill her”
6. Over the complaint made by the de-facto complainant a case was started by
the Kolkata Leather Complex Police Station Case being no. 55 dated
05.07.2005 under Sections 448/354/325/307/32 of the Indian Penal Code
against the accused persons. After completion of investigation charge-sheet
was submitted by the prosecution agency against the accused persons under
sections 448/354/325/307/34 of the Indian Penal Code.
7. The learned Trial Court framed charge against all the accused persons under
sections 448/307/34/354 of the Indian Penal Code on 21.04.2009 which was
read over and explained to the accused persons and in reply they pleaded not
guilty and claimed to be tried.
2025:CHC-AS:1090
4
8. In order to prove the substance of the case as made out in the written
complaint the prosecution has cited 12 witnesses in this case. Documents
were marked as exhibits on its behalf. Neither any oral nor documentary
evidences whatsoever has been adduced on the side of the accused persons in
order to prove the defence case.
9. Ms. Torsa Min Bahar, learned Advocate appearing on behalf of the appellants
said that there are irregularities and illegalities in the statements made by the
witnesses in this case and it would be appeared after proper assessment of
evidences on record. It is further said that the prosecution has completely
failed to bring home the charges levelled against the appellants. It is said by
the learned Advocate that no paper has been seized/produced before the
Court in support of tenancy by the de-facto complainant and his wife (victim)
under Gopal Mondal, inhabitant of Bamanghata and no reasonable and
cogent explanation has been given by the prosecution as to why the victim
and her husband used to reside as tenants under Gopal Mondal, though it is
said by them that this de-facto complainant is the owner of a residence
located at Kolkata where their sons have been residing. The learned counsel
further submitted that although it is the case of the prosecution that the
victim had been dragged by the accused persons after covering her cloth on
her throat from her rented room to the house of the accused Biswanath
Mondal but the Investigating Officer did not seize the cloth and no reasonable
explanation has been given on the side of the prosecution for non-seizing of
the cloth/wearing apparels of the victim on the alleged date of incident and
said cloth is very much important and vital in this case. So, adverse inference
may be drawn in favour of the prosecution.
2025:CHC-AS:1090
5
10. Learned Counsel further said that PW10 namely, Jyostna Mondal, a
neighbour has stated in his evidence that there was monetary dispute in
between accused persons and the de-facto complainant and the victim and as
such, out of rancour the de-facto complainant lodged the written complaint by
alleging false alleged incident against these accused persons in order to avoid
the repayment of loan which was given by the accused Biswatosh Mondal to
him. The attention of this Court is drawn by the learned Advocate to the
deposition of PW2 (victim) that she was taken to Hatishala Hospital and
thereafter shifted to R.G. Kar Medical College and Hospital for treatment by
her two sons. In cross-examination, this witness stated that they have their
own house at Dumdum where their two sons were residing with their family.
So, the sudden presence of their sons at place of occurrence as stated by PW2
is hardly to believe. It is said by the learned Advocate that the prosecution has
hopelessly failed to bring home the charge levelled against the accused
persons and there are apparent contradictions and omissions in the
depositions of prosecution witnesses. So, it is prayed that the impugned
judgment and order of conviction passed by the learned Trial court may be set
aside.
11. Mr. Sanjay Bardhan, learned Advocate for the State said that the oral
testimony of the de-facto complainant (PW1) was corroborated by the other
witnesses in order to prove the contents of the written complaint. It is said by
the learned Advocate that PW2 (victim), PW3 (Nemai Naskar) have also
supported the testimony of PW1/de-facto complainant in verbatim. Learned
Advocate further said that PW7 and PW8 who are the independent witnesses
to the incident also corroborated the statement made by the de-facto
2025:CHC-AS:1090
6
complainant (PW1) in regard to the fact that these accused persons committed
serious trespass by entering into his rented room and dragged her wife by
covering her throat and took her to the house of the accused Biswanath
Mondal and thereafter she was assaulted by all the accused persons after
binding her with a jackfruit tree with rope and for the reason the victim
sustained injuries on her person and she was taken to hospital for treatment.
It is said by the learned Advocate that the injury report (Exhibit 3) also
supports the fact that these accused persons assaulted the victim with
intention to murder her. The attention of this Court is drawn by the learned
Advocate for the State to the exhibits 3 and 5 as well as to the depositions
made by PW1, PW2, PW3 and PW8. The attention of this Court is further
drawn by the learned Advocate to the deposition of PW6 (doctor) who treated
the victim and also to PW11, another doctor in respect of treatment of the
victim. So, it is said by the learned Advocate that the oral testimony as well as
the documentary evidences available on record indicate that the prosecution
has successfully proved the charge levelled against these accused persons. As
per submission of the learned Advocate the present appeal is devoid of any
merit and as such, it may be rejected outright and the impugned judgment
and order of conviction passed by the learned Trial Court may be affirmed.
12. I have considered the rival submissions advanced by both the parties and
have gone through all the materials on record.
13. PW1, Binoy Bhusan Dey (husband of the victim/de-facto complainant) in his
evidence has stated that at the time of hearing of incident he was at his
working place at fishery of Haripotha and his wife (victim) used to live in the
house of PW8 (Gopal Mondal) as a tenant. This witness said that the incident
2025:CHC-AS:1090
7
took place on 05.07.2005 at about 9/10 A.M. and on that date the accused
persons namely, Biswatosh Mondal, Anima Mondal, Tara Rani Sardar taking
the advantage of his absence entered into that rented house and dragged his
wife from his house to the house of Biswatosh Mondal by binding cloth on her
throat. It is further said by the witness that the victim was tied up at the
jackfruit tree with rope and thereafter, she was assaultd by Biswatosh
Mondal, Anima Mondal, Tara Rani Sardar, Dipankar Naskar, Sukumar Sardar
with bamboo sticks and wooden sticks. It is said by this witness that he heard
that incident. This PW1 was not present on the spot at the relevant point of
time when the alleged incident took place. Moreover, it is said by this witness
in the written complaint that the accused Biswatosh Mondal and the victim
forcibly entered into his rental house. So, the statement made by this PW1
that the accused persons namely, Biswatosh Mondal, Anima Mondal along
with Tara Rani Sardar entered in his house which is contrary, to the
statement made in the written complaint by this PW1.
14. This PW1 has said that family members of PW8 (Gopal Mondal) informed the
matter to Bamanghata Bazar and thereafter, owner of the fishery namely,
Nemai Naskar (PW3) rescued the victim from the clutches of the accused
persons. But PW3 (Nemai Naskar) in his deposition stated that he got
information from Gopal Mondal (PW8) that the wife of the de-facto
complainant was assaulted by the accused persons.
15. This PW1 has stated in his evidence that at first the victim was taken to
Hatishala Primary Health Centre for her treatment and from there she was
taken to R.G. Kar Medical College and Hospital by his two sons namely, Bijan
Dey and Srijan Dey but the said Bijan Dey and Srijan Dey are not cited to the
2025:CHC-AS:1090
8
witness of the prosecution. PW1 further said in his evidence that on getting
information he found his wife (victim) at Bamanghata Bazar with bleeding
injury on her person but the medical document (Exhibit 3) does not disclose
any type of bleeding injury. Exhibit 2/2 which is the seizure list was made in
the presence of the witnesses Gopal Mondal and Binoy Bhusan Dey. The said
Gopal Mondal is the landlord of the rented house in which this PW1/de-facto
complainant and his wife used to reside and Binoy Bhusan Dey himself is the
husband of the victim and the de-facto complainant of this case. So, it can be
said that those witnesses to the seizure are interested witnesses. This PW1 in
his deposition has stated that all the accused persons dragged the victim from
the house of the accused Biswanath Mondal by binding cloth on her throat.
But no cloth was seized by the Investigating Officer during course of
investigation.
16. It is said by the de-facto complainant (PW1) that he took his wife (victim) to
Hatishala Health Centre and from there the victim was brought to R.G. Kar
Hospital by their two sons and stated in cross-examination that both of his
sons were residing in his own house with their family at Dumdum Nager
Bazar (Khudiram Colony), but the victim (PW2) in his evidence has stated that
she was brought by her two sons. This PW2 stated in the same line of PW1
that they have their own house at DumDum consisting of two storied building
where their two sons were residing with the family. PW1 and PW2 failed to
state anything regarding sudden presence of their sons at the place of
occurrence. PW1 stated that the victim was at first taken by him to Hatishala
Primary Health Centre for her treatment and from there she was taken to R.G.
Kar Medical College and Hospital. But the victim (PW2) in her cross-
2025:CHC-AS:1090
9
examination said that she stated to the police that she was taken to
Jirangacha Hospital but at the time of examination-in-chief she told that she
was taken to Hatishala Primary Health Centre.
17. PW1 and PW2 has stated in their evidences that at the relevant point of time
they were tenants under PW8, Gopal Mondal of Bamangatha. PW2, in his
evidence has stated that she had no document to show that he was tenant
under PW8 at the material point of time. Investigating Officer did not collect
any document regarding this tenancy of the de-facto complainant and the
victim under PW8 during course of investigation. PW2/victim in cross-
examination has stated that before going to deposition before the Court she
narrated the incident to Nemai Naskar (PW3) and Gopal Mondal (PW8). In
cross-examination, this PW2 stated that she is an illiterate lady and did not
know the name of English Calendar month. But in examination-in-chief, this
PW2 said that the incident took place on 5th day of July. So, the fact that this
victim did not know the name of English calendar month is not true as it
appears from her cross-examination.
18. PW3, Nemai Naskar, employer of PW1 (de-facto complainant) said that he was
not present at the time of incident and he got information from PW8 that the
accused Binoy Bhusan Dey and his wife (victim) was assaulted by the accused
Biswatosh Mondal and the present convict-appellants after binding her with
the jackfruit tree at the house of the accused Biswatosh Mondal. So, this
witness did not see the incident and he heard it from PW8, Gopal Mondal.
This PW3 further said in his deposition that he also heard when he reached to
the place of occurrence that the accused persons uttered the word by saying
“murder the victim” but the persons who uttered such words have not been
2025:CHC-AS:1090
10
specifically mentioned by this witness. It is admitted by this PW3 that the
distance between the place of occurrence and his residence is about two
kilometres.
19. PW4, Sulata Mondal (wife of PW8) and PW5, Minoti Jana inhabitants of
Bamanghata as well as the neighbour of PW8 were declared hostile by the
prosecution and cross-examined them. But nothing has come out from such
cross-examinations which may help the prosecution to prove its story.
20. PW7, Mampi Sarkar, another neighbour of the landlord Gopal Mondal (PW8)
has stated in his evidence that at the time of incident the victim was busy for
cooking food at veranda at the tenanted room and she was standing in the
courtyard in front of the veranda of the said rented room which is contrary to
the statement made by this witness before the police recorded under Section
161 Cr.P.C. This PW7 said that she found the accused Anima Mondal after
wrapping the cloth of wife of the de-facto complainant around her throat
dragged her by continuous beating. This witness further said that she also
found the accused Biswatosh Mondal, Anima Mondal, Tara Rani Sardar took
the victim forcibly from the veranda and dragged and beat her continuously.
But, the statement made by this witness regarding biting the victim
continuously was not mentioned either by PW1 (de-facto complainant) and
PW2 (victim). This PW7 stated in his evidence that she cannot say the name of
the neighbours residing in the locality of Gopal Mondal, the landlord of the
de-facto complainant and the victim as because he did not mix up any of the
neighbours of that locality. But in cross-examination, this PW7 stated that
she knew the accused Biswatosh Mondal, Anima Mondal, Tara Rani Sardar as
neighbours prior to the incident. This PW7 failed to identify all the accused
2025:CHC-AS:1090
11
persons except Biswatosh Mondal, Anima Mondal. This PW7 said that she
heard subsequently that all the accused persons assaulted the wife of the de-
facto complainant (PW1) after binding her into the tree.
21. PW8, Gopal Mondal is the landlord under whom PW1 (de-facto complainant]
and the victim were the tenants. This PW8 said that he heard from Nemai
Naskar (PW3) that the victim was assaulted by all the accused persons. So,
what he said about the incident is purely hearsay evidence. In cross-
examination, this PW8 said that he did not hand over any papers to police in
support of tenancy of the de-facto complainant and the victim at the relevant
point of time. PW8 further said at the time of giving deposition that the
accused Anima Mondal dragged the victim by keeping ‘achal’ of her saree
(wearing apparels) after covering the same around her throat. But
astonishingly the said wearing apparel (saree) of the victim was not seized by
the Investigating Officer.
22. PW10, Jyostna Mondal, the neighbour of the victim clearly stated that she did
not know anything regarding incident. This PW10 further said that she heard
earlier that there was monetary dispute in between the accused persons and
the de-facto complainant (PW1) and his wife (victim).
23. PW6, Dr. Abhijit Purkait who treated the victim proved the injury report which
is marked as exhibit 3 in this case. This PW6 said that the injuries mentioned
therein, whether it was simple or grievous could not be ascertained without x-
ray and other investigations. In cross-examination, this PW6 stated that this
type of injuries mentioned in exhibit 3 may be caused due to falling on rough,
hard and blunt substance and the said injury report the names of the
assailant had not been mentioned. This PW6 admitted in cross-examination
2025:CHC-AS:1090
12
that the bruise and abrasion as mentioned in the exhibit 3 is simple in
nature.
24. PW11, Dr. Gour Gopal Poddar who treated the victim stated that he did not
mention in his report (exhibit 5) regarding the injury sustained by the victim.
As per opinion of this witness the injury sustained by the victim is simple in
nature. I have already said that PW1 stated in his evidence that he found his
wife (victim) at Bamanghata Bazar with bleeding injury on her person. Neither
exhibit 3, nor exhibit 5 has disclosed anything about the bleeding injury on
the person of the victim. Moreover, PW6 and PW11, the doctors who treated
the victim also did not state anything that the victim was admitted into the
hospital with bleeding injury.
25. PW12, Ashok Taru Mukherjee, S.I. of Police and Investigating Officer of the
case said that after completion of the investigation he submitted charge-sheet
against the accused persons. It is said by this witness that one nylon rope
and one broken bamboo stick were seized by him by preparing seizure list in
presence of PW8 and PW1. I have already said that PW2 (victim) said that all
the accused persons dragged her from the rented house by covering her cloth
on her throat to the house of the accused Biswatosh Mondal but the said
cloth was not seized by the Investigating Officer and no explanation was given
for non-seizing the cloth in this case. In cross-examination, this witness said
that the date of birth of the informant and the thumb impression and
signature of the complainant in column No. 14 in formal FIR has been kept
blank. This witness failed to give any explanation regarding keeping blank of
the aforesaid columns in the formal FIR. It is admitted by this witness that he
2025:CHC-AS:1090
13
did not seize any rent receipt from the landlord (PW8) under whom PW1 and
PW2 were tenant. It is also admitted by this witness that he did not collect
any x-ray report of the victim to ascertain the gravity of injury sustained by
her. This PW12 stated that he did not make any investigation as to how and
by whom the victim was taken to Jirangacha Primary Health Centre.
Moreover, this witness admitted that he did not collect any paper to show that
PW3 (Nemai Naskar) was the owner of veri (fishery) at the relevant point of
time. This PW12 said that PW3 (Nemai Naskar) did not make any statement
before him at the time of interrogation that the accused persons uttered the
words “murder the victim”.
26. Although, it is said by PW1 and PW2 that at first the victim was taken to
primary health centre and thereafter, she was shifted to R.G. Kar Medical
College and Hospital but no witness corroborated this statement made by
PW1 and PW2. Moreover, this PW12 said that he did not examine any Doctor
of Jirangacha Primary Health Centre and R.G. Kar Medical College and
Hospital and recorded their statement. This PW12 further said that PW7 did
not make any statement before him that at the time of incident victim was
engaged of cooking at the veranda of her tenanted house. It is said by this
witness that PW7 did not make any statement before him that he heard
subsequently that all the accused persons after binding the victim into one
tree caused hurt to her with bamboo stick.
27. So, it is apparent from the above statements made by this witnesses that
there are contradictions and omissions in the evidences led by the
prosecution. As per statement of PW10 there is a monetary dispute in
between the appellants and the victim and her husband. It is said by PW1
2025:CHC-AS:1090
14
that the accused Biswatosh Mondal took loan from him but he did not pay the
same. So, there is a previous monetary dispute in between the parties and as
such, there is a chance of false implication of these appellants with the
present case. On proper appreciation of evidences which were brought on
record by the prosecution as well as after considering the medical documents
it appears that the prosecution has hopelessly failed to prove the charge
levelled against these accused persons without any shadow of doubt.
28. In view of the above facts and circumstances and discussion made above I am
of the opinion that the prosecution has hopelessly failed to prove the charge
levelled against the appellants and as such, the impugned judgment and
order of conviction passed by the learned Trial Court dated 11th May, 2010 in
connection with S.T. Case No. 10(4)/2009, S.C. No. 45(3)/2007 is liable to set
aside.
29. Accordingly, the present appeal be and the same is hereby allowed.
30. The impugned judgment and order passed by the learned Trial Court dated
11th May, 2010 passed in connection with S.T. Case No. 10(4)/2009 and S.C.
Case No. 45(3)/2007 is hereby set aside.
31. These accused persons are on bail. They are released from bail bonds and
be set at liberty, if not wanted in connection with other case.
32. Let a copy of this order along with T.C.R. be sent down to the Trial Court
immediately.
33. Urgent Photostat certified copy of this order, if applied for, be given to the
parties on payment of requisite fees.
(Prasenjit Biswas, J.)
2025:CHC-AS:1090
15