Calcutta High Court (Appellete Side)
Kanai Mondal vs The State Of West Bengal & Ors on 1 August, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Prasenjit Biswas
CRA (DB) 57 of 2022
Kanai Mondal
vs.
The State of West Bengal & Ors.
For the Appellant : Mr. Arindam Jana, Advocate
Mr. Sumanta Ganguly, Advocate
Mr. Yuvraj Chatterjee, Advocate
For the State : Mr. S. S. Imam, Jr. Govt. Advocate
Mr. R. Jana, Advocate
For the Respondent
Nos: 3, 4, 5 & 7 : Mr. Sourav Chatterjee, Senior Advocate
Mr. Aniruddha Bhattacharyya, Advocate
Ms. Promita Banerjee, Advocate
Heard on : 28.07.2025
Judgment on : 01.08.2025
Prasenjit Biswas, J.:-
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1. The impugned judgment and order dated 04.07.2018 passed by
the learned Trial Court in connection with Sessions Trial No.02 (01)09
is assailed in this appeal.
2. By passing the impugned judgement, this accused person was
found not guilty for commission of offence punishable under Sections
3. Being aggrieved and dissatisfied with the said impugned judgment
and order of acquittal, the present appeal is preferred at the behest of
the appellant/complainant.
4. The instant case was started on the basis of a complaint lodged by
the defacto complainant instituted before the Court of learned Chief
Judicial Magistrate, Alipore under Section 156(3) of the Cr.P.C.
stating inter alia, that the son of the de facto complainant namely
Haren Modal was married with respondent no.5. After marriage, a
disturbance and dispute was cropped up in between the deceased and
the respondent no.5 and she took shelter in a rented house with the
deceased. Thereafter the respondent no.5 left her matrimonial house
and started to reside in her mother’s house. It is stated in the written
complaint that, illegal relationship was started in between the
respondent no.5 with the respondent no.2 (Akhil Das). It is further
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stated in the written complaint that, Haran (deceased) and his
father/de facto complainant lodged a written complaint before the
concerned Police Station stating that the respondent no.5, had taken
Rs.50,000/- in cash from the house of the de facto complainant. It is
further stated by the de facto complainant in the written complaint
that his son was kidnapped by the accused person on 20.06.2006
with the help of unknown miscreants and was wrongfully and forcibly
beaten with iron rod and thereafter they fled away leaving him at a
place. The victim was taken to the hospital and on 05.07.2006 he
died. It is stated in the written complaint that the medical report
would show that Haren was murdered. A complaint was lodged by the
defacto complainant before the local police station. As no step was
taken by the concerned police station, the defacto complainant filed a
petition before the learned Magistrate which was treated as F.I.R.
being Sonarpur P.S. Case No. 364 dated 26.10.2006 u/s
363/326/302/406/120 of I.P.C.
5. After completion of investigations charge sheet was submitted by
the Prosecuting Agency under Sections 363/ 326/ 352/ 302/ 406/
120B of Indian Penal Code. Charge was framed by the Trial Court
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under Sections 364/302/120B of I.P.C. against all the accused
persons.
6. In this case, nine witnesses were cited by the side of the prosecution
and documents were marked as exhibits on its behalf. Neither any
oral nor documentary evidence was adduced on behalf of the defence.
7. It is said by the learned advocate appearing for the
appellant/complainant that the learned Trial Court did not consider
the evidences brought on record by the side of the prosecution. P.W.1,
defacto complainant has deposed supporting the contentions made in
the written complaint. Other P.Ws as cited by the side of the
complainant also corroborated the case of the prosecution. It is
further assailed by the learned advocate that the post-mortem report
of the deceased also indicates that the deceased died due to injuries
sustained by him which are ante-mortem in nature. The attention of
the Court is drawn to the evidence of P.W.8, who treated the deceased
on 20.06.2006 and prepared injury report which is marked as
Exhibit-4 in this case.
8. Learned advocate further contended that the Trial Court did not at
all consider the dying declaration made by the deceased before P.W.1
(de facto complainant) and P.W.2 (Basudeb Halder) which was
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actually his last communication to these witnesses after he was
assaulted. It is further said that the said dying declaration indicates
that the death of the victim was actually occurred as a result of the
injuries as mentioned in the post-mortem report which are ante
mortem in nature. So, as per submission of the learned advocate that
the said dying declaration made by the deceased before P.W. 1 and
P.W. 2 is very much relevant under Section 32 of the Indian Evidence
Act. It is pointed out by the learned advocate that the injuries
mentioned in the post mortem report corroborates the prosecution
case and there is a clear evidence of proof of mens rea towards the
commission of the offence by the accused person.
9. In support of his contention, learned Advocate relies upon the
decisions rendered by the Apex Court in case of Munnu Raja vs.
State of M.P. 1, State of Maharashtra vs. Krishnamurti Laxmipati
Naidu 2 and Patel Hiralal Joitaram Vs. State of Gujarat3.
10. It is said that although in this case there is no ocular evidence but
the names of the assailant were stated by the deceased to PW1 and
PW2 by way of dying declaration. So, it is submitted that the
evidences as cited by the prosecution were not correctly appreciated
1
(1976) 3 SCC 104
2
1980 Supp. SCC 455
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by the learned trial Court and, as such, the impugned judgment and
order passed by the learned Trial Court is unsustainable under the
provisions of law.
11. It is said by the learned Advocate by referring the decisions
rendered by the Hon’ble Apex Court in case of Munnu Raja and
Krishnamurti Laxmipati Naidu that in a dying declaration any
reference to the transaction causing death is enough and the dying
declaration can be acted upon without corroboration. We are not
unmindful that dying declaration can be the sole basis of conviction
and it can be done so if it is not tutored and made voluntarily and is
wholly reliable but before placing reliance upon the dying declaration
it has to be subjected to a very close scrutiny, keeping in view the fact
that the statement has been made in the absence of the accused, who
had no opportunity of testing the veracity of the statement by cross-
examination. If the evidence in that regard is satisfactory, the Court
would come to a conclusion that a particular statement was indeed
made by the deceased. In this case dying declaration of the deceased
was allegedly made as we stated above before PW1 and PW2 upon
being recovered on 20.06.2006. This dying declaration had no
proximity with the death of the deceased which took place on
3
(2002) 1 SCC 22
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05.07.2006 in a hospital. The document filed on behalf of the
prosecution does not say anything in which the deceased named any
of the accused persons. Moreover, as per evidence of PW9
(investigating officer) where he stated in cross-examination that as per
the bed head ticket collected by him during process of investigation
shows that the deceased was conscious on 28.06.2006 at 9:30 am. In
the said reports the Apex Court held that a dying declaration must be
approached with caution before placing reliance upon it. So, the
decision cited by the learned Advocate to that point is not applicable
in this case.
12. In case of Patel Hiralal Joitaram the Hon’ble Apex Court held that
the appellate Court at the time of dealing with appeal of acquittal it
has to proceed more cautiously and unless there is absolute
assurance of the guilt of the accused on the basis of the evidence on
record. It is contended by the learned Advocate placing reliance upon
the said judgment that in this case the post mortem report reveals
that the death was due to the effects of the injuries which were ante-
mortem in nature and the said post mortem report indicates that the
death was occurred due to the injuries mentioned in the P.M. report.
We have already said that PW5 (autopsy surgeon) opined that the
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cause of death of the victim was due to the injuries which are ante-
mortem in nature but he did not say in his report that the death was
homicidal.
13. The learned Advocate further placed reliance on the decision of the
Apex Court rendered in case of Krishna Mochi and said that in this
case it would appear from the evidences that there is motive and/or
mensrea towards commission of offence and in such circumstances if
the petition of complaint has not been proved that by itself cannot be
a ground to throw out a prosecution case which otherwise stand
established. We have already said in the forgoing paragraphs that in
this case there is no witness to the incident. The prosecution case
reflects that there was an illicit relationship between the respondent
no. 2 and respondent no. 5 and as per submission of the prosecution
it is the motive to do away with the deceased as the victim was the
husband of the respondent no. 5. After appreciation of the evidences
we do concur with the findings of the learned Trial Court that the
chain of circumstances was far from being completed and the
evidences so brought on record could not prove the story of the
prosecution beyond reasonable doubts.
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14. It is said by the learned advocate for the accused persons that P.W.
5/Autopsy surgeon opined that the cause of death was due to injuries
and ante-mortem in nature but he failed to say that the death was
homicidal. It is further assailed by the learned advocate for the
appellant that none of the medical documents recorded the names of
the assailants by the deceased. As per submission of the learned
advocate for the accused persons that there was no witness to the
incident in connection with the present case and the entire case
stands upon circumstantial evidence which the prosecution failed to
prove.
15. Learned advocate further contended that there is no illegality in
the impugned judgment and order passed by the learned Trial Court.
It is said that there are contradictions and omissions in the evidences
of the witnesses cited by the prosecution. There is nothing in the case
record for which the impugned judgment and order of acquittal
passed by the learned Trial Court may be interfered with. It is further
said by the learned advocate for the private respondents/accused
persons that most of the witnesses cited by the prosecution are the
relations to the complainant and the victim. P.W. 8/doctor who
treated Haran Mondal in the National Medical College and Hospital
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stated that the victim revealed that he was assaulted by some
unknown persons on 22.6.2006 in the morning but no specific name
was mentioned in the bed head ticket.
16. The evidence cited by the prosecution does not bring home the
charge leveled against the accused persons for commission of the
alleged offence. So, it is said that the impugned judgment and order of
acquittal passed by the learned Trial Court may not be interfered
with. There is delay in lodging the compliant before the Court and no
reasonable explanation has been given on the part of the complainant
to that extent.
17. Reliance has been made by the learned advocate for the accused
person upon the decisions rendered by the Hon’ble Supreme Court in
case of Arulvelu & Anr. Vs. State & Anr.4 Bhim Singh -vs- State of
Haryana, State of Uttar Pradesh -Vs- Awdhesh5, Rathinam Alias
Rathinam -Vs- State of Tamil Nadu & Anr6, Jawaswamy vs. State
of Karnataka7 and Banareddy and Ors. vs. State of Karnataka and
Ors.8.
4
(2009) 10 SCC 206
5
(2008) 16 SCC 238
6
(2011) 11 SCC 140
7
(2018) 7 SCC 21
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18. We have considered the rival contentions advanced by both the
parties and have gone through all the materials in the record.
19. It is said in the written complaint that on 20.06.2006 the deceased
(son of the de facto complainant) was abducted and assaulted.
Thereafter, the victim was brought back to the residence of P.W. 1 by
the local people but none of the said local people were examined by
the side of the prosecution. It further appears that the victim
disclosed the names of the persons who allegedly assaulted him
before P.W. 1. So, P.W. 1 (de facto complainant) was aware about the
names of the alleged assailants but immediate to the incident he did
not lodge any compliant before the police station. The story of
abduction was not clearly stated by any of the witnesses. PW1 and
PW2 did not state the place of abduction. PW1 and PW2 stated that
the deceased told them that he was abducted and local people
brought him to his house at about 10.00/ 10.30 p.m..It is said by
PW1 that his son (victim) disclosed the names of the assailants but
PW1 did not take any immediate step to lodge any complaint before
police station. On 22.06.06 the victim became ill and he was taken to
8
(2018) 5 SCC
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CRA (DB) 57 of 2022
hospital and there from he was referred to M.R. Bangur Hospital
wherein he expired on 05.07.06.
20. The victim Haran Mondal died in the hospital on 05.07.2006 and
the instant complaint was lodged before the Court on 12.09.2006, i.e.,
about four months after the date of the incident. We have already
said that the victim was allegedly assaulted on 20.06.2006 but
immediate to the incident no complaint was lodged by the de facto
complainant naming the assailants before the police station. So,
admittedly, there was a delay in lodging the alleged complaint which
creates doubt about the story of the prosecution.
21. The post-mortem of the victim was marked as exhibit in this case.
The Autopsy Surgeon (P.W. 5) has stated in his evidence that as per
the post-mortem report, the death was due to the effects of injuries as
noted in the post-mortem report and ante-mortem in nature. It is not
opined by the Autopsy Surgeon that death was homicidal. This
evidence of the Autopsy Surgeon gets corroboration from the
evidences of P.W. 8 who treated the victim wherein the said victim
stated before the doctor that he was assaulted by some unknown
assailants. The victim did not disclose the names of the assailants
who allegedly assaulted him. The declaration made by the victim
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before P.W. 1 and P.W. 2 being recovered on 20.06.2006 and
immediate to his declaration before those witnesses, no complaint was
lodged. Moreover, the victim expired on 05.07.2006 in the hospital.
So, there is difficulty to rely upon the dying declaration as allegedly
made by the victim before P.W. 1 and P.W. 2.
22. It is admitted position that there is no witness to the alleged
incident. The prosecution case is solely based upon the circumstantial
evidence. There is no evidence that how the victim was assaulted. It is
stated by the P.W.1 that there was illicit relationship with the
respondent No.5 (Rita Mondal) and respondent No. 2 (Akhil Das). PW1
has stated that the deceased Haren Mondal told him about the
assault by the accused persons in his home and PW2 has stated that
the victim told him about the names of the accused persons when he
met at the Hospital. There is no evidence in the record for which it can
be said that these accused persons had involvement with the incident
dated 20.06.2006. The circumstances and evidences brought on
record by the side of the prosecution do not indicate that the victim
was murdered by the accused persons. There is no concrete evidence
in the record for which it can be said that the accused persons were
involved in the commission of the alleged offence. The chain of
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circumstances has not proved by the witnesses of the prosecution
beyond doubt. Moreover the motive of the accused was not
established in this case.
23. The Hon’ble Apex Court in case of Arulvelu (supra) held that the
expression perverse has been dealt with in a number of cases and the
word perverse means that the findings of the subordinate authority
are not supported by the evidences brought on record or there against
the law or suffer from the vice of procedural irregularity. The appellate
Court should be very slow in setting aside a judgment of acquittal
particularly in a case where two views are possible. The Trial Court
judgment cannot be set aside because Appellate Court’s view is more
probable. The Appellate Court would not be justified in setting aside
the Trial Court’s judgment unless it arrives a clear on marshalling
entire evidence on record that the judgment of the Trial Court is either
perverse or wholly unsustainable in law. The same view has been
taken by the Apex Court in case of Bhim Singh vs State of Haryana,
State of Uttar Pradesh vs. Awdhesh, Rathinam Alias Rathinam vs
State of Tamil Nadu and Anr and Jawaswamy vs. State of
Karnataka. Relying upon those judgments it is stated by the side of
the respondents no(s) 3, 4 and 7 that the Appellate Court hearing the
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appeal against the judgment and order of acquittal will not overrule or
otherwise disturb the Trial Court’s acquittal if the Appellate Court
does not find substantial and compelling reason for doing so. In the
case at hand we do not find any such illegality and material
irregularity in the impugned judgment and order of acquittal passed
by the learned Trial Court which warrants any interference by the
Appellate Court.
24. Keeping in view the facts and circumstances of the case, we hold that
the prosecution was not able to establish the guilt of the accused
persons beyond reasonable doubt. Further, the High Court should
not re-aprepciate the evidences in its entirety, especially when there
is no grave infirmity in the findings of the trial court. There exists no
justification behind setting aside the order of acquittal passed by the
trial court, especially when the prosecution case suffers from several
contradictions and infirmities. No specific assertion could be proved
regarding the role and involvement of the accused persons.
25. The decisions referred by the learned Advocate of the appellant do not
lend support to his submissions made at the time of hearing in
respect of the facts and circumstance of the present case.
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26. The learned Trial Court appreciated the entire evidences brought
on record by the side of the prosecution and found that the evidences
in the record do not indicate about the involvement of the accused
persons with the alleged incident.
27. Having considered the above circumstances, we are not inclined to
interfere with the impugned judgment and order passed by the
learned Trial Court.
28. Accordingly, the appeal does not succeed.
29. Consequently the impugned judgment and order passed by the
learned Trial Court is hereby affirmed.
30. CRA (DB) 57 of 2022 is, accordingly, dismissed.
31. Let a copy of the judgment along with the Trial Court records be
sent down to the Court below at once.
32. Urgent photostat certified copy of this order, if applied for, be
supplied expeditiously after complying with all necessary legal
formalities.
(PRASENJIT BISWAS, J.)
26. I agree
(DEBANGSU BASAK, J.)
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CHC/Dd