1

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:- 14

th

July, 2026

Judgment pronounced on:- 16

th

July, 2026

RAJASEKHAR MANTHA, J :-

1. The subject appeal is directed against the judgment and order of acquittal

dated March 30

th

, 2017 passed by the Additional District and Session

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Judge 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 7

th

, 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 7

th

, 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 7

th

, 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 7

th

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 7

th

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 6

th

, 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

17

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,

18

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

19

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

20

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

30

under 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

35

noticed 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

36

527 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

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cases, 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.

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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

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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.)