DISTRICT: HOWRAH

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

C.R.A. No. Of 2017

In the matter of:

A memorandum of appeal under

Section 374 (2) of the Code of

Criminal Procedure, 1973;

And

In the matter of:

Judgement and Order dated 11th

May, 2017 and 12th May, 2017

passed by Ms. Nabanita Ray, the

Learned Additional District and

Sessions Judge, 5th Court, Howrah

in connection with Sessions Trial

Case No. 123 of 2011,

corresponding to GR Case No.

372 of 2010 arising out of Liluah

Police Station Case No. 17 dated

31.01.2010, thereby convicting

2

the Appellant for commission of

offences punishable under

Sections 498A/306 of the Indian

Penal Code, 1860 and sentencing

the Appellant to suffer rigorous

imprisonment for a period of two

(2) years and to pay fine of Rs.

5,000/- in default to suffer simple

imprisonment for 2 months more

for commission of the offence

punishable under Section 498A

Indian Penal Code, 1860 and to

suffer rigorous imprisonment for

Seven (7) years and to pay fine of

Rs. 10,000/- in default to suffer

simple imprisonment for Six (6)

months more for commission of

an offence punishable under

Section 306 of the Indian Penal

Code, 1860;

And
 3

In the matter of:

Dipankar Das @ Pantu,

Son of Amarendranath Das,

Of 55, Madan Biswas Lane,

Golabari, Howrah, PIN Code:

711106 and House of Shankar

Dev, 72B Road, Bamungachi,

Police Station: Liluah, Howrah, PIN

Code: ;

.… Appellant (In Jail)

Versus

State of West Bengal.

………Respondent

To,

The Hon’ble Mrs. Nishita Mhatre, Acting Chief Justice and Her

Companion Justices of the said Hon’ble Court.

The humble memorandum of

appeal on behalf of the Appellant

above-named

Most Respectfully Sheweth:

1. That the present Appellant was placed on trial before the

 4

Court of the Learned Additional District and Sessions Judge, 5 th Court,

Howrah to answer the charges framed for commission of the offences

punishable under Sections 498A/302 and 304B of the Indian Penal

Code, 1860 in connection with Sessions Trial Case No. 123 of 2011,

corresponding to GR Case No. 372 of 2010 arising out of Liluah Police

Station Case No. 17 dated 31.01.2010.

2. The prosecution case as alleged is to the effect that:

Deceased Ruma Pal got married with one Dipankar Pal in the

year of 2005 and since her marriage she was subjected to torture by

her husband and other in-laws which prompted her to lodge a specific

complaint being Golabari Police Station Case No. 209 under Sections

498A of the Indian Penal Code, 1860. During the pendency of the said

proceeding pursuant to a compromise arrived at by and between the

parties, the deceased returned to her matrimonial home and her

husband started to maintain a separate mess at a rented mess at 72 B

Road, Bamungachi, Police Station: Liluah. But torture continued upon

the deceased and on 30 th January, 2010 in the evening one Subhas

Bose, i.e. Meshomasai of the deceased received an information that his

niece is burnt and admitted to Howrah Hospital. He immediately

rushed to the house but did not find any one there and only found
 5

some burnt clothes in front of the bathroom. The Complainant rushed

to hospital from there and found that his niece is completely burnt. The

deceased succumbed to her injuries on 31st January, 2010.

3. That on the basis of the letter of complaint lodged by one

Suvash Bose, Liluah Police Station Case No. 17 dated 31.01.2010 was

registered for investigation under Sections 498A/302/120B of the

Indian Penal Code, 1860 against the Appellant. The investigating

agency over the self same incident also initiated one UD Case being

UD Case No. 50 dated 31.01.2010.

4. That the investigating agency after completion of the

perfunctory investigation submitted charge sheet against the Appellant

as sole Accused for commission of the alleged offences punishable

under Sections 498A/306 of the Indian Penal Code, 1860.

5. That the Learned Chief Judicial Magistrate, Howrah after

perusing the charge sheet and its accompaniments took cognizance of

the alleged offences and committed the case to the Court of the

Learned District and Sessions Judge, Howrah.

6. That the Learned District and Sessions Judge, Howrah on

receipt of the case record was pleased to transfer the case to the Court
 6

of the Learned Additional District and Sessions Judge, 5 th Court,

Howrah, (hereinafter referred to as the Learned Judge) for trial and

disposal of the same. The Learned Judge after perusing the records

and hearing both the parties was pleased to frame charges against the

Appellant under Sections 498A/302 and 304B of the Indian Penal Code,

1860 to which the Appellant pleaded not guilty and claimed to be tried.

7. That in course of trial the prosecution examined as many as

fourteen (14) witnesses and exhibited a number of documents and on

the other hand the Appellant also adduced three witnesses and some

documentary evidences in support of his defence as well as through a

process of effective cross examination he has been able to

improbabilise the prosecution case and probablise his own defence.

The defence of the Appellant was one of innocence and false

implication due to personal grudge. The Appellant further states that

specific defence of the Appellant was that the deceased committed

suicide in bathroom and the Appellant tried to save her after breaking

the door of the bathroom and in course of that he also received injuries

on his person.

8. That in conclusion of trial, the Learned Judge by the impugned

Judgment and Order dated 11th May, 2017 and 12th May, 2017
 7

convicted the Appellant for commission of offence punishable under

Sections 498A/306 of the Indian Penal Code, 1860 and sentenced the

Appellant to suffer rigorous imprisonment for a period of two (2) years

and to pay fine of Rs. 5,000/- in default to suffer simple imprisonment

for 2 (two) months more for commission of the offence punishable

under Section 498A Indian Penal Code, 1860 and to suffer rigorous

imprisonment for 7 (Seven) years and to pay fine of Rs. 10,000/- in

default to suffer simple imprisonment for six (6) months more for

commission of an offence punishable under Section 306 of the Indian

Penal Code, 1860. The Learned Judge was further pleased to direct that

both the sentences shall run concurrently. The Appellant further states

that the Learned Judge by the same judgement and order was further

pleased to acquit the Appellant from the charges levelled against them

from commission of the alleged offences punishable under Section

302/304B of the Indian Penal Code, 1860.

Free copy of the impugned judgement and order dated 11 th May,

2017 and 12th May, 2017 passed by the Learned Judge in Sessions Trial

Case No. 123 of 2011 corresponding to GR Case No. 372 of 2010

arising out of Liluah Police Station Case No. 17 dated 31.01.2010 is

attached with the instant memorandum of appeal.

 8

9. That the Appellant has a strong arguable case in his favour

inasmuch as the impugned judgment and order of conviction and

sentence has been recorded on the basis of inadmissible materials and

on vague surmises and conjectures.

10. That the Appellant States that the Learned Judge erred in law

and fact without appreciating that the FIR i.e. the very initiation of the

instant case is a very questionable one and the probability and/or

plausibility of the same being initiated by suppressing the materials

facts and/or putting colour to the actual incident and/or by

representing the entire situation in a distorted manner out of private

and personal grudge of the relatives of the deceased cannot be

overruled. The Appellant further states that true and proper

appreciation of the depositions of the relative witnesses being PW-1 to

PW-4, would unerringly reveal that there are severe contradictions

regarding the number of complaints lodged by the relatives of the

deceased with the concerned Police Station against the Appellant for

commission of the alleged offences.

11. That the Appellant states that no explanation is forth coming

from the end of the prosecution that what prompted the investigating

agency to initiate a separate UD case over the self same subject

 9

matter of the instant case on the self-same day when a specific case

was registered on 31st January, 2010 and it is the specific contention of

the prosecution that the letter of complaint of the instant case was

lodged by the Complainant in close proximity of the incident. Such

palpable irregularity on the part of the prosecution coupled with the

fact that there are several embellishments on the part of the

prosecution witnesses, would assail the very basis of the prosecution

case and increase the probability and/or plausibility of the contention

of the Appellant that the FIR of the instant case was antedated and

ante timed and/or the same was initiated at the instance of the

relatives of the deceased person out of private and personal vendetta.

12. That the Appellant states that the entire prosecution story is

based on the deposition of the PW-1 to PW-4 who tried to incorporate a

story of demand of dowry and inflicting torture upon the deceased by

the Appellant from the very inception of marriage as well as that the

Appellant was habituated with drinking and gambling which caused

immense problem in the family of the deceased. The Learned Judge

erroneously accepted the deposition of the said witness as gospel truth

and relied upon the same for holding the Appellant guilty for

commission of the alleged offences without appreciating that the

 10

deposition of the said witnesses is highly suspicious and suffering from

the vices of embellishments and improvements at subsequent stages

and contradictory to each other on some material points, which would

dislodge the very basis of the prosecution case. It is apposite to state

that true and proper appreciation of the Letter of Complainant which is

treated as First Information Report of the instant case as well as the

specific admission of the investigating officer of the instant case i.e.

the PW-14 would clearly indicate that those witnesses improved their

versions with regard to demand of dowry, infliction of torture in close

proximity of the alleged incident because of non-fulfilment of such

demand as well as communication of the same to them by the

deceased in near past of her committing suicide in course of their

deposition before the Learned Judge and they made such deposition

for the first time before the Court of Law, which is non-est in the eyes

of law.

13. That the Appellant states that the Learned Judge erroneously

accepted the deposition/versions of the relative and interested

prosecution witnesses especially the versions of the PW-1 to PW-4 as

gospel truth without appreciating that through those witnesses

prosecution actually tried to lead certain missing links of the

 11

circumstances which they failed to establish by any independent and

unimpeachable evidence and had even with that intention also

monitored their version, which is unheard off.

14. That the Appellant states that true and proper appreciation of

the deposition of the relative witnesses i.e. PW-1 to PW-4 coupled with

the specific admission of the PW-4 in course of her cross examination

would clearly establish that improved version of the prosecution which

they have represented in course of their deposition before the Learned

Judge in connection with the instant case is the product of discussion

and consultation amongst those witnesses and such improvements

and/or exaggerations were purposely made with the sole intention to

nail the Appellant for commission of the alleged offences.

15. That the Appellant states that correct and appropriate

consideration of the deposition of PW-7 in the light of the specific

admission of the PW-14 in course of his cross examination would

unerringly indicate that neither any reliance can be placed upon the

deposition of that witnesses nor the same can be used as a

corroborative piece of evidence to the deposition of PW-1 to 4 because

most of the part of the deposition of PW-7 are hearsay in nature and

his probability and/or plausibility of having knowledge regarding the

 12

said situations was not corroborated by the other prosecution

witnesses.

16. That the Appellant states that continuous exaggerations and

embellishments made by the PW-1 to 4 in course of their deposition

coupled with their overzealous attitude to implicate the Appellant as

accused in connection with the instant case by incorporating

circumstances to represent him as accused for commission of the

alleged offences, not only assail the very plank of the prosecution case

but also diminishes their credit and increases the probability of false

implication of the Appellant in connection with the instant case out of

private and personal aversion. The Appellant further states that such

contention of the Appellant is more fortified from the fact that although

in course of causing inquest over the dead body of the deceased both

the PW-1 and PW-2 were present but they did not make any complaint

against the Appellant for commission of the alleged offences by the

Appellant.

17. That the Appellant states that while convicting the Appellant

for commission of the alleged offences, the Learned Judge erroneously

relied upon the alleged observations made in the inquest report

prepared by the PW-13, without appreciating the specific admission of

 13

the said witnesses that in the observation portion he had incorporated

certain incriminating materials as per the instruction of the

investigating officer of the said case. Such specific admission of the

PW-13 not only assail the vary plank of the prosecution case but also

establishes the overzealous vindictive attitude of the prosecuting

agency as well as the fact that from the inception the prosecuting

agency framed up the Appellant as accused in connection with the

instant case merely because of he is the husband of the deceased and

thereafter prepared/manufactured evidences to substantiate their

contention. It is apposite to state that the investigating agency was

never interested to unearth the truth rather engaged themselves for

manufacturing evidences to frame up the Appellant as accused in

connection with the instant case, which is non-est in the eyes of law.

18. That the Appellant states that while the Learned Judge passed

the impugned judgement and order of conviction and sentence against

the Appellant erred in law and fact without appreciating that none of

the independent witnesses being PW- 5 and PW-8 supported the

version of the prosecution case. True and proper appreciation of the

deposition of those two witnesses would unerringly reveal that the

prosecution could not inure any benefit in spite of subjecting them to

 14

lengthy cross examination after declaring them hostile. Proper

appreciation of the deposition of those two witnesses who are happens

to be neighbour and land lord of the deceased respectively, clearly

negates the version of the prosecution case and probablises the

version of the defence. Specific admission of the PW-8 that there was

cordial relationship between the deceased and the Appellant

improbablises the version of the prosecution case that the deceased

was ever subjected to torture by the Appellant after they shifted to the

rented accommodation at Bamungachi.

19. That the Appellant states that the Learned Judge erroneously

denied to give proper importance to the specific defence version of the

Appellant that the deceased attempted to commit suicide at Bathroom

of their rented house by pouring kerosene oil on her person and while

the Appellant tried to save her, he received injuries on his right hand.

The Learned Judge failed to appreciate that such specific version of the

Appellant is corroborated by independent unimpeachable medical

evidence. The Appellant states that receipt of injury on his person,

corroboration of the same by independent unimpeachable medical

evidence, specific deposition the DW- 1 to 3 to the effect that there

was cordial relationship between the deceased and the Appellant and
 15

last but not the least that such version of defence was also supported

by the deposition of independent prosecution witnesses assumes much

more importance in the instant case and not only improbablises the

version of the prosecution case but put the defence version in a high

pedestal than the prosecution case.

20. That the Appellant states that true and proper appreciation of

the impugned judgement and order of conviction and sentence as

passed by the Learned Judge would clearly indicate that while

disbelieving the defence version the Learned Judge presumed the

existence of certain circumstances which the prosecution failed to

adduce and further appreciated the evidence of the witnesses in a

manner which is contrary to the materials on record. The Appellant

states that observation of the Learned Judge that as the Appellant

gave LTI in the medical papers of the deceased and it was stated by

him before the doctor that the deceased committed suicide because of

quarrel with in-laws, the defence version that the Appellant tried to

save the deceased while she attempted to commit suicide and

consequent to that he received injuries on his person is a improbable

one, is unheard in the realm of law and amounts to appreciation of

evidences of the witnesses as well as other materials on record in a

 16

biased, mechanical and erroneous manner, which necessitates

interference of this Hon’ble Court with the impugned judgement and

order of conviction and sentence as passed by the Learned Judge.

21. That the Appellant states that the Learned Judge erred in law

and fact without appreciating that since the prosecution could not

bring on record any material evidence of unimpeachable character to

negate the documentary evidences and/or oral evidences adduced on

behalf of the defence that the Appellant received burn injuries while he

tried to save the deceased after breaking open the door of the

bathroom, the said defence version appears to be a more probable one

than the prosecution one. Besides that appreciation of the deposition

of the Prosecution Witnesses, which is suffering from vices of

exaggerations, embellishments and improvements in the light of the

specific defence version, clearly postulates that the relative and

interested prosecution witnesses improved their version to any extent

for ensuring the conviction of the Appellant for commission of the

alleged offences out of private and personal grudge and/or for

satisfying the sadistic pleasure of the relatives of the deceased

because of her untimely unnatural death, which is non-est in the eyes

of law. Hence, conviction of Appellant for commission of the alleged

 17

offences on the basis such deprecating version of prosecution

witnesses without having any corroboration, especially in the peculiar

facts and circumstances of the instant case is unheard in the realm of

law.

22. That the Appellant states that true and proper appreciation of

the impugned judgement and order of conviction and sentence as

passed by the Learned Judge in connection with the instant case would

unerringly reveal that the same is full of contradictions and suffering

from the vices of mechanical appreciation of the evidences adduced in

connection with the instant case as well as erroneous interpretation of

different provision of the law of the land. It is apposite to state that

although the deceased faced unnatural death within a period of 5

years of her marriage, the Learned Judge acquitted the Appellant from

the charge levelled against him under Section 304B of the Indian Penal

Code, 1860 on the premise that the prosecution could not bring on

record any evidence of demand of dowry and torture for dowry. Once

the Learned Judge acquitted the Appellant from the charge of Section

304B, conviction of the Appellant for commission of the alleged

offences punishable under Section 498A of the Indian Penal Code, 1860

merely because the deceased committed suicide at her matrimonial

 18

home is not possible because there is no evidence to show that the

deceased was subjected to such torture or bodily injury in close

proximity of her death or subjected to such goading and/or instigation

which lead her to commit suicide or made her life so miserable that

she did not have any other option except to commit suicide.

23. That the Appellant states that while the Learned Judge passed

the impugned judgement and order of conviction and sentence against

the Appellant for commission of the alleged offences punishable under

Section 306 of the Indian Penal Code, 1860, failed to appreciate that

the word ‘Abetment’ means and includes goading, urging forward,

provoking, inciting or encouraging to do ‘an act’. To satisfy the

requirement of abetment though it is not necessary that actual words

must be used to that effect or what constitutes abetment must

necessarily and specifically be suggestive of the consequence. Yet a

reasonable certainty to incite the consequence must be capable of

being spelt out. The Appellant states that true and proper appreciation

of the evidences of the prosecution witnesses and other materials on

record would clearly indicate that the present case is not a case where

the Appellant had by his acts or omission or by a continued course of

conduct created such circumstances that the deceased was left with
 19

no other option except to commit suicide in which case abetment could

have been inferred. It is apposite to state that since the deposition of

the prosecution witnesses with regard to the behaviour, conduct and/or

dowry demand of the Appellant after the couple shifted to their rented

accommodation are contrary to each other and there is no

independent corroborative evidence from which reasonable inference

as to abetment by the Appellant could be inferred, conviction of the

Appellant for commission of the alleged offences punishable under

Sections 306 of the Indian Penal Code, 1860 is non-est in the eyes of

law.

24. That the Appellant states that the Learned Judge erroneously

convicted the Appellant for commission of the alleged offences without

appreciation that no person can even be prima-facie held liable for

abetting the victim to commit suicide if the victim was hypersensitive

to ordinary petulance, discord and difference in domestic life quite

common to the society to which the deceased belonged and such

petulance, discord and difference were not expected to induce a

similarly circumstanced individual in a given society to commit suicide.

25. That the Appellant states that conviction of the Appellant on

the basis of the deposition of PW-1 to 4, who are interested and

 20

relative witnesses to the deceased and whose depositions are suffering

from the vices of the improvements, exaggerations as well as

embellishments, for commission of the alleged offences punishable

under Sections 498A of the Indian Penal Code, 1860 is unheard in the

realm of law. Such contention of the Appellant is further fortified from

the fact that the Learned Judge himself vide the same judgement and

order was pleased to hold that there is no material to substantiate the

guilt of the Appellant for demanding dowry and/or for inflicting torture

because of non-fulfilment of such demand. Besides that there is no

evidence of instigation and/or abetting the deceased to commit

suicide. It is apposite to state that in such factual scenario the case in

hand does not comply with any of the essential ingredients of any of

the limbs of Section 498A of Indian Penal Code, 1860. The Learned

Judge further erred in law and fact without appreciating that the

interested and related prosecution witnesses tried to

improve/exaggerate/embellish their versions in course of their

depositions before the Court of Law for incorporating the essential

ingredients of those offences for ensuring conviction of the Appellant

for commission of the alleged offences punishable under Sections

498A/306 of the Indian Penal Code, 1860 in a malicious and mala-fide

manner.
 21

26. That the Appellant states that the Learned Judge erroneously

invoked the provision of Section 113A of the Evidence Act, 1872

without appreciating that for invoking adverse presumption available

to such Section would only come into force while the prosecution by

adducing sufficient evidence has been able to prove the charge of

Section 498A of the Indian Penal Code, 1860 against the Appellant

beyond any reasonable doubt, which is missing in the instant case. The

prosecution version is suffering from different vices in such a glaring

manner that merely because the deceased earlier lodged a specific

complaint against the Appellant and other in-laws for commission of

the alleged offences punishable under Sections 498A of the Indian

Penal Code, 1860 has a very little bearing in the instant case and the

same cannot be sole ground for convicting the Appellant for

commission of the alleged offences in connection with the instant case.

27. That the Appellant states that the Learned Judge appreciated

the depositions of the prosecution witnesses in a most defective and

cryptic manner, which is unheard in the realm of law. The Appellant

further states that the Learned Judge actually under the garb of

appreciation of the deposition of the prosecution witness, took into

consideration only those parts of their depositions which supports the

 22

prosecution story and rejected the remaining part, which either

assailed the prosecution case and/or supported the version of defence.

Such mechanical, cryptic, and choosy method of appreciation of the

deposition of the prosecution witnesses instead of considering the

same as a whole is nothing but an utter disregard to the settled

principle of law.

28. That the Appellant states that the Learned Judge erroneously

denied to consider the wilful withholding of material parts of the

prosecution story/witnesses and/or contradictory version of different

witnesses with regard to very basis of the prosecution story, without

appreciating that the same actually gave rise to more than one

prosecution version and affects the very root of the prosecution case.

29. That the Appellant states that true and proper appreciation of

the impugned judgement and order of conviction and sentence as

passed by the Learned Judge in connection with the instant case

against the Appellant would clearly indicate that the Learned Judge

actually have presumed existence of certain circumstances which are

missing and/or tried to supply the missing link of the circumstances

which the prosecution tried to establish for holding the Appellant guilty

for commission of the alleged offences. It is pertinent to state that in

 23

case of wilful withholding the Accused Persons are entitled to get the

benefit of doubt.

30. That the Appellant states that true and proper appreciation of

the impugned judgement and order of conviction and sentence passed

by the Learned Judge would unerringly reveal that the Learned Judge

used the decisions of the Apex Court in a cryptic and whimsical

manner for filling up the lacuna of the prosecution case as well as to

cover up the effect of wilful withholding and/or contradictory

depositions made by the prosecution witnesses with regard to very

plank of the prosecution story. Such cryptic and whimsical

interpretation of the laws laid down by the Apex Court is unheard in

the realm of law.

31. That the Appellant states that the Learned Judge in absence

of any reliable, cogent, and overwhelming evidence actually has relied

upon vague surmises and conjectures to hold the Appellant guilty for

commission of the alleged offences and have presumed certain

circumstances which is unheard in the realm of law. The Learned Judge

convicted the Appellant for commission of the alleged offences without

appreciating that the circumstances relied upon by the prosecution

does not unerringly indicate to the guilt of the Appellant and negate
 24

every possible hypothesis of him being innocent.

32. Being aggrieved by and/or dissatisfied with the impugned

Judgement and Order dated 11th May, 2017 and 12th May, 2017 passed

by the Learned Additional District and Sessions Judge, 5 th Court,

Howrah in connection with Sessions Trial Case No. 123 of 2011,

corresponding to GR Case No. 372 of 2010 arising out of Liluah Police

Station Case No. 17 dated 31.01.2010, thereby convicting the

Appellant for commission of offences punishable under Sections

498A/306 of the Indian Penal Code, 1860 and sentencing the Appellant

to suffer rigorous imprisonment for a period of two (2) years and to

pay fine of Rs. 5,000/- in default to suffer simple imprisonment for 2

months more for commission of the offence punishable under Section

498A Indian Penal Code, 1860 and to suffer rigorous imprisonment for

Seven (7) years and to pay fine of Rs. 10,000/- in default to suffer

simple imprisonment for Six (6) month more for commission of an

offence punishable under Section 306 of the Indian Penal Code, 1860,

the Appellant begs to prefer the instant appeal before this Hon’ble

Court on the following amongst others:

GROUNDS:

I. For that the Learned Judge mechanically and

 25

arbitrarily passed the judgement and order of conviction and

sentence without appreciating true facts and circumstances of

the instant case.

II. For that the Learned Judge failed to appreciate

the true content and purport of Section 498A/306 of the Indian

Penal Code, 1860.

III. For that the defence of the Appellant was one of

innocence and false implication due to personal grudge. The

specific defence of the Appellant was that the deceased

committed suicide in bathroom and the Appellant tried to save

her after breaking the door of the bathroom and in course of that

he also received injuries on his person.

IV. For the Appellant has a strong arguable case in

his favour inasmuch as the impugned judgment and order of

conviction and sentence has been recorded on the basis of

inadmissible materials and on vague surmises and conjectures.

V. For that the Learned Judge erred in law and fact

without appreciating that the FIR i.e. the very initiation of the

instant case is a very questionable one and the probability

 26

and/or plausibility of the same being initiated by suppressing the

materials facts and/or putting colour to the actual incident and/or

by representing the entire situation in a distorted manner out of

private and personal grudge of the relatives of the deceased

cannot be overruled.

VI. For that true and proper appreciation of the

depositions of the relative witnesses being PW-1 to PW-4, would

unerringly reveal that there are severe contradictions regarding

the number of complaints lodged by the relatives of the

deceased with the concerned Police Station against the Appellant

for commission of the alleged offences.

VII. For that no explanation is forth coming from the

end of the prosecution that what prompted the investigating

agency to initiate a separate UD case over the self same subject

matter of the instant case on the self-same day when a specific

case was registered on 31st January, 2010 and it is the specific

contention of the prosecution that the letter of complaint of the

instant case was lodged by the Complainant in close proximity of

the incident.
 27

VIII. For Such palpable irregularity on the part of the

prosecution coupled with the fact that there are several

embellishments on the part of the prosecution witnesses, would

assail the very basis of the prosecution case and increase the

probability and/or plausibility of the contention of the Appellant

that the FIR of the instant case was antedated and ante timed

and/or the same was initiated at the instance of the relatives of

the deceased person out of private and personal vendetta.

IX. For that the entire prosecution story is based on

the deposition of the PW-1 to PW-4 who tried to incorporate a

story of demand of dowry and inflicting torture upon the

deceased by the Appellant from the very inception of marriage

as well as that the Appellant was habituated with drinking and

gambling which caused immense problem in the family of the

deceased.

X. For The Learned Judge erroneously accepted

the deposition of the said witness as gospel truth and relied upon

the same for holding the Appellant guilty for commission of the

alleged offences without appreciating that the deposition of the

said witnesses is highly suspicious and suffering from the vices of

 28

embellishments and improvements at subsequent stages and

contradictory to each other on some material points, which

would dislodge the very basis of the prosecution case.

XI. For that true and proper appreciation of the

Letter of Complainant which is treated as First Information

Report of the instant case as well as the specific admission of the

investigating officer of the instant case i.e. the PW-14 would

clearly indicate that those witnesses improved their versions with

regard to demand of dowry, infliction of torture in close proximity

of the alleged incident because of non-fulfilment of such demand

as well as communication of the same to them by the deceased

in near past of her committing suicide in course of their

deposition before the Learned Judge and they made such

deposition for the first time before the Court of Law, which is

non-est in the eyes of law.

XII. For that the Learned Judge erroneously accepted

the deposition/versions of the relative and interested prosecution

witnesses especially the versions of the PW-1 to PW-4 as gospel

truth without appreciating that through those witnesses

prosecution actually tried to lead certain missing links of the

 29

circumstances which they failed to establish by any independent

and unimpeachable evidence and had even with that intention

also monitored their version, which is unheard off.

XIII. For that true and proper appreciation of the

deposition of the relative witnesses i.e. PW-1 to PW-4 coupled

with the specific admission of the PW-4 in course of her cross

examination would clearly establish that improved version of the

prosecution which they have represented in course of their

deposition before the Learned Judge in connection with the

instant case is the product of discussion and consultation

amongst those witnesses and such improvements and/or

exaggerations were purposely made with the sole intention to

nail the Appellant for commission of the alleged offences.

XIV. For that correct and appropriate consideration of

the deposition of PW-7 in the light of the specific admission of

the PW-14 in course of his cross examination would unerringly

indicate that neither any reliance can be placed upon the

deposition of that witnesses nor the same can be used as a

corroborative piece of evidence to the deposition of PW-1 to 4

because most of the part of the deposition of PW-7 are hearsay

 30

in nature and his probability and/or plausibility of having

knowledge regarding the said situations was not corroborated by

the other prosecution witnesses.

XV. For that continuous exaggerations and

embellishments made by the PW-1 to 4 in course of their

deposition coupled with their overzealous attitude to implicate

the Appellant as accused in connection with the instant case by

incorporating circumstances to represent him as accused for

commission of the alleged offences, not only assail the very

plank of the prosecution case but also diminishes their credit and

increases the probability of false implication of the Appellant in

connection with the instant case out of private and personal

aversion.

XVI. For that such contention of the Appellant is more

fortified from the fact that although in course of causing inquest

over the dead body of the deceased both the PW-1 and PW-2

were present but they did not make any complaint against the

Appellant for commission of the alleged offences by the

Appellant.
 31

XVII. For that while convicting the Appellant for

commission of the alleged offences, the Learned Judge

erroneously relied upon the alleged observations made in the

inquest report prepared by the PW-13, without appreciating the

specific admission of the said witnesses that in the observation

portion he had incorporated certain incriminating materials as

per the instruction of the investigating officer of the said case.

XVIII. For that such specific admission of the PW-13

not only assail the vary plank of the prosecution case but also

establishes the overzealous vindictive attitude of the prosecuting

agency as well as the fact that from the inception the

prosecuting agency framed up the Appellant as accused in

connection with the instant case merely because of he is the

husband of the deceased and thereafter prepared/manufactured

evidences to substantiate their contention.

XIX. For that the investigating agency was never

interested to unearth the truth rather engaged themselves for

manufacturing evidences to frame up the Appellant as accused

in connection with the instant case, which is non-est in the eyes

of law.
 32

XX. For that while the Learned Judge passed the

impugned judgement and order of conviction and sentence

against the Appellant erred in law and fact without appreciating

that none of the independent witnesses being PW- 5 and PW-8

supported the version of the prosecution case.

XXI. For that true and proper appreciation of the

deposition of those two witnesses would unerringly reveal that

the prosecution could not inure any benefit in spite of subjecting

them to lengthy cross examination after declaring them hostile.

Proper appreciation of the deposition of those two witnesses who

are happens to be neighbour and land lord of the deceased

respectively, clearly negates the version of the prosecution case

and probablises the version of the defence. Specific admission of

the PW-8 that there was cordial relationship between the

deceased and the Appellant improbablises the version of the

prosecution case that the deceased was ever subjected to

torture by the Appellant after they shifted to the rented

accommodation at Bamungachi.

XXII. For that the Learned Judge erroneously denied to

 33

give proper importance to the specific defence version of the

Appellant that the deceased attempted to commit suicide at

Bathroom of their rented house by pouring kerosene oil on her

person and while the Appellant tried to save her, he received

injuries on his right hand. The Learned Judge failed to appreciate

that such specific version of the Appellant is corroborated by

independent unimpeachable medical evidence.

XXIII. For that receipt of injury on his person,

corroboration of the same by independent unimpeachable

medical evidence, specific deposition the DW- 1 to 3 to the effect

that there was cordial relationship between the deceased and

the Appellant and last but not the least that such version of

defence was also supported by the deposition of independent

prosecution witnesses assumes much more importance in the

instant case and not only improbablises the version of the

prosecution case but put the defence version in a high pedestal

than the prosecution case.

XXIV. For that true and proper appreciation of the

impugned judgement and order of conviction and sentence as

passed by the Learned Judge would clearly indicate that while

 34

disbelieving the defence version the Learned Judge presumed

the existence of certain circumstances which the prosecution

failed to adduce and further appreciated the evidence of the

witnesses in a manner which is contrary to the materials on

record.

XXV. For that observation of the Learned Judge that

as the Appellant gave LTI in the medical papers of the deceased

and it was stated by him before the doctor that the deceased

committed suicide because of quarrel with in-laws, the defence

version that the Appellant tried to save the deceased while she

attempted to commit suicide and consequent to that he received

injuries on his person is a improbable one, is unheard in the

realm of law and amounts to appreciation of evidences of the

witnesses as well as other materials on record in a biased,

mechanical and erroneous manner, which necessitates

interference of this Hon’ble Court with the impugned judgement

and order of conviction and sentence as passed by the Learned

Judge.

XXVI. For that the Learned Judge erred in law and fact

without appreciating that since the prosecution could not bring

 35

on record any material evidence of unimpeachable character to

negate the documentary evidences and/or oral evidences

adduced on behalf of the defence that the Appellant received

burn injuries while he tried to save the deceased after breaking

open the door of the bathroom, the said defence version appears

to be a more probable one than the prosecution one.

XXVII. For that appreciation of the deposition of the

Prosecution Witnesses, which is suffering from vices of

exaggerations, embellishments and improvements in the light of

the specific defence version, clearly postulates that the relative

and interested prosecution witnesses improved their version to

any extent for ensuring the conviction of the Appellant for

commission of the alleged offences out of private and personal

grudge and/or for satisfying the sadistic pleasure of the relatives

of the deceased because of her untimely unnatural death, which

is non-est in the eyes of law. Hence, conviction of Appellant for

commission of the alleged offences on the basis such

deprecating version of prosecution witnesses without having any

corroboration, especially in the peculiar facts and circumstances

of the instant case is unheard in the realm of law.

 36

XXVIII. For that true and proper appreciation of the

impugned judgement and order of conviction and sentence as

passed by the Learned Judge in connection with the instant case

would unerringly reveal that the same is full of contradictions

and suffering from the vices of mechanical appreciation of the

evidences adduced in connection with the instant case as well as

erroneous interpretation of different provision of the law of the

land.

XXIX. For that although the deceased faced unnatural

death within a period of 5 years of her marriage, the Learned

Judge acquitted the Appellant from the charge levelled against

him under Section 304B of the Indian Penal Code, 1860 on the

premise that the prosecution could not bring on record any

evidence of demand of dowry and torture for dowry.

XXX. For that once the Learned Judge acquitted the

Appellant from the charge of Section 304B, conviction of the

Appellant for commission of the alleged offences punishable

under Section 498A of the Indian Penal Code, 1860 merely

because the deceased committed suicide at her matrimonial

 37

home is not possible because there is no evidence to show that

the deceased was subjected to such torture or bodily injury in

close proximity of her death or subjected to such goading and/or

instigation which lead her to commit suicide or made her life so

miserable that she did not have any other option except to

commit suicide.

XXXI. For that while the Learned Judge passed the

impugned judgement and order of conviction and sentence

against the Appellant for commission of the alleged offences

punishable under Section 306 of the Indian Penal Code, 1860,

failed to appreciate that the word ‘Abetment’ means and

includes goading, urging forward, provoking, inciting or

encouraging to do ‘an act’. To satisfy the requirement of

abetment though it is not necessary that actual words must be

used to that effect or what constitutes abetment must

necessarily and specifically be suggestive of the consequence.

Yet a reasonable certainty to incite the consequence must be

capable of being spelt out.

XXXII. For that true and proper appreciation of the

evidences of the prosecution witnesses and other materials on

 38

record would clearly indicate that the present case is not a case

where the Appellant had by his acts or omission or by a

continued course of conduct created such circumstances that the

deceased was left with no other option except to commit suicide

in which case abetment could have been inferred.

XXXIII. For that since the deposition of the prosecution

witnesses with regard to the behaviour, conduct and/or dowry

demand of the Appellant after the couple shifted to their rented

accommodation are contrary to each other and there is no

independent corroborative evidence from which reasonable

inference as to abetment by the Appellant could be inferred,

conviction of the Appellant for commission of the alleged

offences punishable under Sections 306 of the Indian Penal Code,

1860 is non-est in the eyes of law.

XXXIV. For that the Learned Judge erroneously

convicted the Appellant for commission of the alleged offences

without appreciation that no person can even be prima-facie held

liable for abetting the victim to commit suicide if the victim was

hypersensitive to ordinary petulance, discord and difference in

domestic life quite common to the society to which the deceased

 39

belonged and such petulance, discord and difference were not

expected to induce a similarly circumstanced individual in a

given society to commit suicide.

XXXV. For that conviction of the Appellant on the basis

of the deposition of PW-1 to 4, who are interested and relative

witnesses to the deceased and whose depositions are suffering

from the vices of the improvements, exaggerations as well as

embellishments, for commission of the alleged offences

punishable under Sections 498A of the Indian Penal Code, 1860

is unheard in the realm of law.

XXXVI. For that such contention of the Appellant is

further fortified from the fact that the Learned Judge himself vide

the same judgement and order was pleased to hold that there is

no material to substantiate the guilt of the Appellant for

demanding dowry and/or for inflicting torture because of non-

fulfilment of such demand.

XXXVII. For that there is no evidence of instigation

and/or abetting the deceased to commit suicide. It is apposite to

state that in such factual scenario the case in hand does not
 40

comply with any of the essential ingredients of any of the limbs

of Section 498A of Indian Penal Code, 1860.

XXXVIII. For that the Learned Judge further erred in law

and fact without appreciating that the interested and related

prosecution witnesses tried to improve/exaggerate/embellish

their versions in course of their depositions before the Court of

Law for incorporating the essential ingredients of those offences

for ensuring conviction of the Appellant for commission of the

alleged offences punishable under Sections 498A/306 of the

Indian Penal Code, 1860 in a malicious and mala-fide manner.

XXXIX. For that the Learned Judge erroneously invoked

the provision of Section 113A of the Evidence Act, 1872 without

appreciating that for invoking adverse presumption available to

such Section would only come into force while the prosecution by

adducing sufficient evidence has been able to prove the charge

of Section 498A of the Indian Penal Code, 1860 against the

Appellant beyond any reasonable doubt, which is missing in the

instant case.

XL. For that the prosecution version is suffering from

 41

different vices in such a glaring manner that merely because the

deceased earlier lodged a specific complaint against the

Appellant and other in-laws for commission of the alleged

offences punishable under Sections 498A of the Indian Penal

Code, 1860 has a very little bearing in the instant case and the

same cannot be sole ground for convicting the Appellant for

commission of the alleged offences in connection with the instant

case.

XLI. For that the Learned Judge appreciated the

depositions of the prosecution witnesses in a most defective and

cryptic manner, which is unheard in the realm of law.

XLII. For that the Learned Judge actually under the

garb of appreciation of the deposition of the prosecution witness,

took into consideration only those parts of their depositions

which supports the prosecution story and rejected the remaining

part, which either assailed the prosecution case and/or

supported the version of defence.

XLIII. For that such mechanical, cryptic, and choosy

method of appreciation of the deposition of the prosecution

 42

witnesses instead of considering the same as a whole is nothing

but an utter disregard to the settled principle of law.

XLIV. For that the Learned Judge erroneously denied to

consider the wilful withholding of material parts of the

prosecution story/witnesses and/or contradictory version of

different witnesses with regard to very basis of the prosecution

story, without appreciating that the same actually gave rise to

more than one prosecution version and affects the very root of

the prosecution case.

XLV. For that true and proper appreciation of the

impugned judgement and order of conviction and sentence as

passed by the Learned Judge in connection with the instant case

against the Appellant would clearly indicate that the Learned

Judge actually have presumed existence of certain circumstances

which are missing and/or tried to supply the missing link of the

circumstances which the prosecution tried to establish for

holding the Appellant guilty for commission of the alleged

offences. It is pertinent to state that in case of wilful withholding

the Accused Persons are entitled to get the benefit of doubt.

 43

XLVI. For that true and proper appreciation of the

impugned judgement and order of conviction and sentence

passed by the Learned Judge would unerringly reveal that the

Learned Judge used the decisions of the Apex Court in a cryptic

and whimsical manner for filling up the lacuna of the prosecution

case as well as to cover up the effect of wilful withholding and/or

contradictory depositions made by the prosecution witnesses

with regard to very plank of the prosecution story. Such cryptic

and whimsical interpretation of the laws laid down by the Apex

Court is unheard in the realm of law.

XLVII. For that the Learned Judge in absence of any

reliable, cogent, and overwhelming evidence actually has relied

upon vague surmises and conjectures to hold the Appellant

guilty for commission of the alleged offences and have presumed

certain circumstances which is unheard in the realm of law.

XLVIII. For that the Learned Judge convicted the

Appellant for commission of the alleged offences without

appreciating that the circumstances relied upon by the

prosecution does not unerringly indicate to the guilt of the

Appellant and negate every possible hypothesis of him being

 44

innocent.

XLIX. For that the Learned Judge convicted the

Appellant without considering the well established principle

relating to recording of conviction in a case of circumstantial

evidence. The Learned Judge dwelt in the realm of surmises and

conjectures in every aspect of the prosecution case in coming to

a finding of guilt against the Appellant.

L. For that the Learned Judge did not take into

consideration that there is no independent witness to support the

prosecution case and the depositions of the interested witnesses

are embellished one. Therefore recording of judgement and

order of conviction and sentence against the Appellant on the

basis of such week piece of evidence is an utter disregard to the

settled principles of law.

LI. For that the Learned Judge denied to consider

that the prosecution failed to prove the guilt of the Appellant for

committing the alleged offences but the defence has been able

to prove the defence version by preponderance of probability

and to some extent the same has been corroborated by the

 45

prosecution witnesses.

LII. For that the Learned Judge failed to consider the

settled position of law that the prosecution can no way be

entitled to get the benefit of the latches of the defence to prove

the guilt of the Appellant because it is against the principle of

Rule of Law and clear violation of the settled principles of law

that the prosecution has to stand on its own leg.

LIII. For that the charge was framed in an illegal

manner in the instant case and such illegal framing of charge has

caused prejudice to the Appellant in preparing his defence and

has occasioned failure of justice.

LIV. For that the examination of the Appellant under

Section 313 of Code of Criminal Procedure, 1973 has been

conducted in an illegal and in an improbable manner which has

resulted in a mistrial of the Appellant.

LV. For that the sentence is too severe.

33. That this application is bona fide and in the interest of justice.

In these circumstances, it is
46

humbly prayed that Your

Lordships may graciously be

pleased to admit the appeal,

issue usual notices, call for the

records and after hearing the

parties and perusing the records

and considering the cause that

may be shown be pleased to set

aside the impugned judgement

and order of conviction and

sentence appealed against and/or

pass such other incidental and/or

consequential order/orders as

Your Lordships may deem fit and

proper;

And

Pending hearing of the instant

appeal, Your Lordships may be

further pleased to direct stay of

realization of fine imposed upon

the Appellant, suspend the

sentence and enlarge the

 47

Appellant on bail.

And for this act of kindness Your Appellant, as in duty bound, shall ever

pray.

Filed By

Advocate

DISTRICT: HOWRAH
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
C.R.A. No. of 2017

In the matter of:

A memorandum of appeal under Section
374(2) of the Code of Criminal Procedure,
1973;
And
In the matter of:
Dipankar Das @ Pantu
..............… Appellant (IN JAIL)
Versus
State of West Bengal.
...…..........
Respondent

Memorandum of Appeal
48

Mr. Satadru Lahiri,

Advocate,
C/o. Mr. Tirthankar Ghosh,
Advocate,
Temple Chambers, 6, Old Pos
Office Street, Room No. 28,
(Basement)
Kolkata: 700 001.
Mobile No. 9874193062