1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 208 of 2001 Haran Ali Molla -Vs- The State of West Bengal For the Appellant : Mr. Rajeshwar Chakraborty (Amicus curiae) For the State : Ms. Faria Hossain Ms. Kanchan Roy Heard on : 03.12.2025 Judgment on : 24.03.2026 Ananya Bandyopadhyay, J.:- 1. This appeal is preferred against the judgment and order of conviction dated 27.04.2001 and 30.04.2001 passed by the Learned Additional Sessions Judge, 6th Court, Alipore, South 24 Parganas in Sessions Trial No.3(I) of 2001 arising out of Bhangore Police Station Case No.128 dated 22.08.2000. 2. The prosecution case precisely stated on August 21, 2000 at about 03:00 p.m., the deceased, Jamshed Ali Molla was grazing his goats in the adjacent field of the appellant, when certain goats entered into the field of the appellant and destroyed few brinjal plants. The appellant along with other persons assaulted the victim resulting in his death. Thereafter, the dead body of the deceased was hung on a mango tree situated on the field of 2 Chemai Molla. The victim was searched throughout the night. In the morning, the victim’s mother found his dead body on the tree. Such an incident initiated the complaint which was registered by the concerned police station. 3. After completion of the investigation, charge-sheet was submitted by the investigating officer against the appellant and charges were framed under Sections 302/201/34 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution examined as many as 11 witnesses and exhibited certain documents. 5. The appellant faced the trial under Sections 302/34 of the Indian Penal Code read with Section 201 of the Indian Penal Code. After completion of the trial, the Learned Trial Judge had convicted the appellant under Section 304 Part II of the Indian Penal Code. 6. The Learned Advocate for the appellant submitted as follows: – i. The mother of deceased had found the dead body of the victim for the first time, but the prosecution inspite of having ample opportunities did not feel it necessary to examine her. Such grave omission creates a shadow of doubt on the truthfulness of the prosecution story. ii. Chemai Molla on whose mango tree the dead body was found was never examined. iii. The evidence of the prosecution witnesses was based on hearsay. iv. Conviction was solely on the basis of circumstantial evidence and last seen together theory, which in no way supported by the depositions of the witnesses in any manner whatsoever. 3 v. The alleged incident had taken place at 03:30 p.m., in the broad daylight in an open field not witnessed by anyone. vi. Exclusively one Adbar Gazi had seen the deceased, Jamshed to be sitting on the mango tree of Chemai Molla, but he was never examined. vii. The seized Alamats were never produced before the Learned Trial Court. viii. The appellant submitted the prosecution failed to establish the connectivity between the appellant and the crime. There must have been certain connectivity between the appellant and the crime. Mere non-explanation on the part of the appellant by itself could not lead to proof of guilt against the appellant. ix. The Hon'ble Apex Court in Kanhaiya Lal V. State of Rajasthan, reported in (2014) 4 SCC 715 :: (2014) 2 SCC(Cri) 413 in Paragraph 12 observed – “The circumstance of last seen together does not by itself and necessarily lead to the Inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.” x. This Hon'ble Court in Jharu Mondal & Anr. V. State of West Bengal, reported in 2005 SCC OnLine Cal 226 :: (2005) 4 CHN 568 in Paragraph 32 held that the test of circumstances from which the 4 inference or guilt is sought to be drawn must be cogently and firmly established. In Paragraph-39, This Hon'ble Court observed – “The missing link in the set of circumstances snaps the chain. Even if there was strong suspicion in order to find the accused guilty there has to be some legal proof. Suspicion though a ground for scrutiny of evidence at first before the Court it cannot be the basis of a judicial decision.” In Paragraph - 52, This Hon'ble Court opined - “Suspicion, however, strong it may be it cannot take the place of legal proof. There is a lot of difference between legal proof and moral conviction and order of conviction.” In Paragraph - 54, This Hon'ble Court observed - “As we have found there are several grey areas in the prosecution case. Unless there is full proof it would be unsafe to form such a conviction. The Supreme Court in Sudama Pandey v. State of Bihar, 2002 (1) SCC 679: 2002 C Cr LR (SC) 231, held that:- “……the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between ‘may be true’ and ‘must be true’ and the same divides conjectures from sure conclusions.”” 5 7. The Learned Advocate for the appellant further submitted:- i. PW-1 was the complainant as well as the maternal uncle of the deceased. He stated in the F.I.R. that “Yesterday dated 21.08.2000 at about 03:00 p.m. my nephew, Jamshed Molla, of Estan Molla, village, Dalapukur, P.O., P.S. Bhangore, South 24 Parganas had gone to graze some goats on the field. The brinjal field of 1) Haran Ali Molla and 2) Babu Ali Molla, of the same village, both sons of Mobarak Molla is located beside the place where the goats were grazing and they were working on their field. Some goats had entered into their field and ate up some brinjal plants. The abovementioned. two brothers, Haran Ali Molla and Babu Ali Molla, had caught Jamshed Molla, son of Betan Molla and had assaulted him and it is my firm belief that, owing to inadvertence during the assault, that & 12 years old boy, Jamshed Molla, son of Betan All Molla, of village Dalapukur had expired. In order to hide their guilt, Haran Ali Molla and Baba Ali Molla, both sons of Mobarak Molla, had hụng up the deceased, Jamshed Molla, son of Estan Molla, aged 12 years on a mango tree situated on the adjoining plot of land owned by Chimi Molla.” Whereas in his deposition, he had developed his version by stating “on 21.08.2000 at about 3.30 afternoon Jamshed Ali was grazing his goats. He was 10 years old at that time. The goat entered into the brinjal field of Haran Ali Molla and Babar Ali Molla. Goat eaten away some brinjal trees. Jamshed Ali came to his mother and told that accd. persons have caught and field the goat. His mother told him to go to the aced, persons as because they will retum back the goat. At that time 6 Jamshed Ali was chewing muri. The goat returned to the house but Jamshed did not return home.” He further stated that “Abdul Sattar Molla is the Morol of our village. Sattar Molla (PW-9) intimated Bhangore P.S. over telephone about the incident.” PW-1 in his cross-examination on suggest regarding the cause of death of the deceased stated “it is a fact that his mother rebuked due to entering in the brinjal garden of the accd. Not a fact that his mother and family members rebuked him for the lost of the goats from his custody.” Such suggestion was supported by the version of the PW-2 in his cross-examination “sometimes he used to loss the goats. Due to loss of such goats mother of Jamshed rebuked him on that day.” The above discussed discrepancies in the version of the complainant clearly go to show the after-thought in the version of the prosecution for the purpose of implicating the appellant in the commission of the alleged crime. ii. PW-2 was a resident of the same village and a hearsay witness, as he had stated in his deposition that “I came to know that Jamshed i.e. the victim was hanging in the mango tree by the bark of the jute wrapping in his neck in the garden of the Chemai Molla. I do not know anything which happened before.” iii. PW-3 was a neighbour and also a hearsay witness as she had stated in his cross-examination that “I have not seen any incident. I have not seen Jamshed to graze goat. I have not seen the goat ate brinjal from the field of Haran Molla.” 7 iv. PW-4 was an another maternal uncle of the deceased. He was also a hearsay witness. He had heard about the incident from the mother of the deceased. He had deposed for the first time before the Court. v. PW-5, PW-6 and PW-9 were declared hostile by the prosecution. vi. PW-7 was the elder sister of the deceased. She stated in her deposition that “the distance between brinjal garden and my paternal, house is 400 to 500 cubits. I made statement to police that I have seen all the incident. Not a fact I did not state to police that I have seen Haran to give slaps to Jamshed. I did not state to police that when Baran was slapping Jamshed my mother told him not to assault him and to release the goats. Not a fact I did not state to police that Jamshed returned to home and stated to my mother that accd. persons were not releasing the goats to him. I did not state to police that my mother gave muri to Jamshed and Jamshed while chewing muri went to bring the goats from the custody of the accd. persons. Not a fact I did not state to police that I lifted the dead body of Janshed and my uncle tomed the bark of the jute plant from the neck of Jamshed and removed the body from the mango tree. Not a fact it is false that the goats of Jamshed entered into the brinajal garden of the accd. persons and ate some of the brinjals. Not a fact I did not state to the police that Haran and Babar caught the goats in their custody. Not a fact that I falsely stated that Haran and Babar daught the goats and did not release the same, Not a fact I falsely stated that Jamshed after returning home told my mother that accd. persons were not releasing the goats and my mother then gave him muri and while chewing muri he went for 8 searching of the goats. Not a fact it is false that Haran and Babar did not give slap to Jamshed. Not a fact I falsely stated that I personally saw that, Haran to give to slap to Jamshed. Not a fact I did not state to police that goats returned at 6.30 p.m. evening but Jamshed did not returned. Not a fact I falsely stated that goats returned at 6.30 p.m. but Jamshed did not return. Not a fact Jamshed lost the goats and due to that I and my mother rebuked him and ousted him from the house. Not a fact we stated to him that don't return without the goats”. Not a fact I deposed falsely.” vii. PW-8 deposed that on August 23, 2000 he held post-mortem examination over the dead body of Jamshed Ali Molla in connection with Bhangore Police Station Case No.128 dated August 22, 2000 under Sections 302/201/34 of the Indian Penal Code. Condition of the dead body:- a) All body swollen. b) Blister formed at places all over the body. c) Epidermis pilled of at places all over the body. d) Tongue protruded and in between two rows of the teeth. Injuries found on the dead body: a) One well defined ligature mark 8" X ½" around the neck without any gap. b) Ligature mark was more or less circular, continuous, abraded, contused and parchmentized at places. 9 In his opinion, the death was due to the effects of strangulation by ligature as mentioned above which were ante-mortem and homicidal in nature. In cross-examination, he admits that he did not find scratches, abrasion, bruises, finger nail marks of the face, neck and other parts of the body as are usually present in the body of Jamshed. viii. PW-10 deposed on 22.8.2000 he was posted at Bhangore P.S. as an A.S.I. On 22.08.2000, he got a telephonic message at 10:15 a.m., from one Abdus Sattar Molla that an agitation was going on in connection death of the deceased in Dalapukur village under Bhangore P.S. He brought to the notice of aforesaid message to O.C. Bhangore P.S. As per O.C.’s instruction, he sent the police personnels to the place of occurrence. He lodged a formal F.I.R., which was marked as Exbt.- 1/2. He had lodged G.D. regarding telephonic message, which was marked as Exbt.-5. ix. PW-10 in his cross-examination stated that there was no note of murder in the formal F.I.R. Subsequently, he did not obtain signature of the person on the G.D. who gave the telephonic message. x. PW-11 deposed on 22.08.2000 he was posted in Bhangore P.S. as S.I. He stated “on 22.08.2000 I was on duty in the P.O. At 10.15 a.m. morning. U.D. officer, Nani Gopal Saha got a telephonic message from Abdus Sattar Molla at 10.15 a.m. morning regarding the death of Jamshed Ali Molla at Dalapukur under P.S. Bhangore. S.I. informed O.C. The case was allotted to me by the O.C., for investigation. Under the instruction of O.C., I went to the place of occurrence with force. The 10 C.C. no. 1511 dated 22.08.2000 was issued to the force. Constable no. C/237, Prabir Chakraborty, constable no.47, Arun Kr. Naskar, H.G.2105 Haran Das accompained me. The dead body of Jamshed was lying in the house of his father, Istan Ali. I made an inquest over the dead body of Jamshed Ali. It is the said inquest report prepared in carbon in same mechanical process. It bears my signature (marked ext. 2/4). I took signature of family members of Jamshed Ali on the inquest resort. The inquest report was prepared in my hand writing. The body was lying in straight condition. There was a ligature mark on the neck and a rope like substance entered into the neck by cutting the place. There was discharge of soil from the body. He was wearing a green colour elastic pan. I made a primary investigation and I have given my report of primary investigation in inquest report. After inquest is over I sent the body for post mortem examination to Alipore morgue. I took the statement of witnesses U/s. 161 Cr.P.C. I seized alamats. Witnesses told me that the victim was hanging by a bark of the jute plant. I seized part of the bark of jute plant. I prepared alamat and took signature of the witnesses. These seizure lists bears my signature and hand writing (marked ext. 3/2). During investigation I prepared the sketch map of the locale. This is the said sketch map with index bearing my signature (marked ext.-6). I collected the post mortem report. After collecting the evidence and after proper investigation I have submitted the charge sheet U/S. 302/201 I.P.C. in connection with case no. 128 dated 22.08.2000 against Haran Ali Molla and Babar Ali Molla. I arrested the accd. persons and forwarded them to Ld. S.D.J.M. I heard from 11 Malkhana Officer that a message addressing to the officer-in-charge directing to produce alamat has been received.” xi. PW-11 in his cross-examination stated that “I came out from P.S. for going to Dalapukur at 10:15 a.m. I lodged G.D. before coming out from the P.S. I did not lodged G.D. personally but duty officer lodged the G.D. First I went to the house of Intan Ali after going to Dalapukur at 11.20 a.m. I examined the dead body and prepared inquest report in connection with Bhangore P.B. Casе No.120 dated 22.08.2000. It took 15 minutes to prepare the inquest report. I did not mention the names of the person in my inquest report from than I made my primary investigation. There is no mention in my C.D. about the mouza dag no., and khatian no., extend of land of brinjal garden. There is no mention in the index of my sketch map about the dag no., khatian no., and extent of land in the brinajal garden. From the sketch mas it will not transpire which mouza involved this sketch map. I cannot say under which dag and khatian no., Chemai Molla’s mango tree situated. The distance of Chemai Molla’s mango trees and brinajal garden is not mentioned in my index. There is no mention the tine of preparing this index neither in the index nor in the C.D. In my C.D. “over the murder of deceased is not mentioned". I met Sattar Holla afterwards. I did not obtain his signature on the telephonic massage. I visited the bringal garden. There is no mention in my C.D. that I have seen the eaten brinjal I did not seize the eaten bringal. The area of brinjal garden is not mentioned in my C.D. 12 PW-7 Rashida Bibi did not make any statement before me that she has seen Haran to give a slap to Jamshed. She did not make any statement before me that Jamshed told his mother that accd. persons are not releasing the goats. She did not state before me that Rashida lifted the dead body of Jamshed and her uncle removed the body from the trees by cutting the bark of jute plant. She did not state before me that accd., persons kept the goats in their custody. Rashida did not make statement before me that goat returned at 6 p.m. but Jamshed did not return. I cannot give the time when O.C. endorsed me this case for investigation. As per inquest report there is no mark of injury on the body of Jamshed. I have not seen any marc of assault on the dead body of Jamshed except the ligature mark on the neck. The seizure list was prepared at 11.25 a.m. I do not find the alamat in the court today. I do not know whether Ali Hossen Holla gave information in the morning to the P.S. Not a fact this F.I.R., was prepared after suppressing the said information. Not a fact for suppressing the said information a story of telephonic message has been fabricated. Not a fact as there was no telephonic message from Abdus Sattar hence I did not obtain his signature on the telephonic message. Not a fact I did not vinit the place of occurrence. Not a fact I did not do anything except some paper works. Not a fact if I would investigate the cane properly then seed. Haran and Babar Ali Molla would not face the trial. It is a fact that Abdar Gazi stated before me that he has seen Jamshed sitting in Chemai Molla’s mango tree.” 13 8. The Learned Advocate representing the State submitted that the prosecution was able to prove its case based on corroborative evidence of the prosecution witnesses supported by the medical evidence and the appeal should be dismissed. 9. At the outset, the testimony of PW-1, the de facto complainant and maternal uncle of the deceased, assumes centrality. His version in the complaint portray a direct accusation against the appellant alleging assault leading to the death of the minor and subsequent attempt to camouflage the occurrence as a case of hanging. The complaint unfolds a direct and unequivocal accusation that the accused persons upon finding their brinjal field trespass by goats assaulted, the minor boy which led to his death and thereafter suspended the body from a mango tree in an attempt to obliterate the trace of their culpability. Yet, when he entered the witness box, the narrative assumed an altogether altered contour. He introduces an intervening episode where the deceased is stated to have returned home, interacted with his mother and then proceeded again towards the accused persons. This interpolation is not a mere embellishment born out of lapse of memory. It constitutes a substantive deviation with strikes at the base of the prosecution story; such an evolution of the narrative and unexplained and uncorroborated facts attack the intrinsic credibility of the witness and cast a shadow upon the spontaneity and veracity of the accusation. This material departure from the complaint is not trivial or irrational, rather, it constitutes a substantive embellishment which erodes the evidentiary worth of his testimony. The attempt to attribute homicidal culpability appears therefore to be an afterthought rather than a spontaneous disclosure of truth. 14 10. More significantly, the defence suggestion, which finds partial resonance in the evidence of PW-2 introduces a competing hypothesis that the deceased has been subjected to assault on account of negligence in managing the goats. The presence of such a plausible alternative emanating from the prosecution’s own evidentiary framework renders the singularity of the prosecution version doubtful. In criminal jurisprudence where the liberty of the individual is at such doubt, the same cannot be brushed aside leniently. 11. The cross examination of PW-1 fortified the defence suggestion, that the deceased had been reprimanded by his mother for losing or mishandling the goats. This introduces an alternative hypothesis inconsistent with the prosecution case, thereby diluting, the certainty required for sustaining a conviction in a criminal trial. 12. PW-2, by his own admission, is a hearsay witness. His knowledge is derivative and not founded upon direct perception. His statement that he came to know about the victim being found hanging does not advance the prosecution case in any substantive manner. The law is well settled that hearsay evidence, unless falling within recognised exceptions carries negligible probative value. Hearsay unless fortified by legally admissible exceptions remains an inherently fragile form of evidence and cannot be elevated to the status of substantive proof. 13. PW-3 and PW-4 add no greater strength to the prosecution case. Both are admittedly hearsay witnesses and PW-3 candidly conceded she had not witnessed any incident, not even seen the deceased grazing goats in the relevant field. PW-4 nearly echoed what he had heard from the mother of the 15 deceased. Such testimonies devoid of direct knowledge cannot from the bedrock of finding guilt. 14. The position is further attenuated by the hostility of PW-5, PW-6 and PW-9 Their departure from the prosecution version, resile the case of potential corroborative support and underscores the fragility of the evidentiary structure upon which the prosecution raised it’s claim. 15. The evidence on record further that PW-5, PW-6 and PW-9, were declared hostile. The prosecution, therefore, lacks the support of material witnesses who might have lent co-operation, thereby rendering its case, fragmented and unsubstantiated.. 16. PW-7, the sister of the deceased is projected as a witness of significance. Yet her deposition has resulted in reflecting omissions and contradictions, vis-a- vis her previous statements. Her peculiar assertions during investigation such as weakness in the assault, the role of the appellant and the surrounding circumstances of the incident; such omissions are not minor discrepancies but go to the core of the prosecution case, render her testimony unhestitatingly unsafe for reliance without independent corroboration, which is conspicuously absent. 17. The medical evidence also failed to fortify the prosecution case. While the post mortem doctor opined the death was due to ligature strangulation and homicidal in nature, the cross-examination revealed a striking absence of concomitant injuries i.e. no scratches, aberrations, bruises, or nail marks, which were expected to be present in a case of forceful strangulation, particularly involving a conscious victim. This incongruity between medical expectation and actual findings create a reasonable doubt as to the precise 16 manner of death. The possibility of suicidal hanging in the absence of definitive imposition could not be discarded. The medical opinion, though entitled to due weight cannot be viewed in isolation. It must harmonise with the overall evidentiary mosaic which in the present case remains discordant. 18. The evidence of PW 10 and PW 11 bore serious procedural lapse in the investigation. The complaint did not initially disclose a case of murder, the telephonic information remains unsubstantiated by signature and crucial details such as the exact place of occurrence particulars and contemporaneous documents were absent from the case diary and sketch map. The Investigating Officer irresponsibly admitted failing to seize relevant evidence, including the allegedly consumed brinjal plants and exposed omissions in documenting essential facts. The failure to establish the precise sites assumed significance in a case resting of circumstantial evidence. 19. Equally disconcerting is the absence of any direct evidence linking the appellant to the act of assault or the alleged hanging. The prosecution has not succeeded in establishing a complete chain of circumstances, pointing exactitude of the guilt of the accused. Each link in the chain appears either to be broken or tenuous and the cumulative effect is one of uncertainty rather than assurance. 20. The law does not countenance conviction on the basis of suspicion, however, grave or compelling it may appear. The burden lies upon the prosecution to establish its case beyond reasonable doubt and that burden never shifts. Where the evidence is susceptible of two views, the one favourable to the accused is to be accepted; this solitary principle is not a technicality, but a fundamental safeguard of personal liberty. 17 21. In the present case, the inconsistencies in the testimony of the principal witness the nature of supporting evidence, the hostility of material witnesses, the inconclusive, medical findings and the manifest deficiencies in investigation, generated a reasonable doubt which cannot be dispelled by conjuncture or surmise. 22. Fundamentally suspicion, however, grave cannot substitute proof. The burden was upon the prosecution to establish guilt beyond reasonable doubt. In the present case, the inconsistencies in the testimony of the principal witness, the inconsistent nature of evidence of supporting witnesses, the hostility of witnesses, the indecisive medical evidence and the negligent investigation collectively grave, rise to a reasonable doubt, which must necessarily be enured to the benefit of the appellant. 23. In such a situation, judicial conscience does not permit the imposition of guilt. The appellants are entitled as a matter of right to the benefit of doubt. 24. Accordingly, the conviction and sentence recorded against the appellant cannot be sustained and are hereby set aside. 25. In view of the above, the instant criminal appeal being CRA 208 of 2001 is allowed. 26. There is no order as to costs. 27. I record my appreciation for the able assistance rendered by the Learned Advocat Mr. Rajeshwar Chakraborty as Amicus Curiae in disposing of this appeal. 28. Case Diary, if any, to be returned forthwith. 29. Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 18 30. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)