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 C.R.A. 498 of 2019 Jagadish Midday Versus The State of West Bengal. With C.R.A. 472 of 2019 Gita Midday & Anr. Versus The State of West Bengal. With For the Appellants : Mr. Dattatreya Dutta, Mr. Dibakar Sardar, Mr. Monjit Bhattacharjee. For the State : Dr. Pradip Banerjee, ld. A.P.P., Mr. Neel Chakraborty. Heard on : July 23rd, 2026. Judgment on : July 23rd, 2026. Rajasekhar Mantha, J.: 1. The subject appeal is directed against judgment and order of conviction dated 25th July, 2019 and 26th July, 2019 passed by the learned Additional District and Sessions Judge, Fast Track Court, Baruipur, South 24-Parganas in Sessions Trial No. 3(6) of 2014 arising out of Sessions Case No. 19(3) of 2013. The appellants were convicted under Sections 498A/302/34 of the IPC. 2 THE PROSECUTION CASE: 2. The appellant Jagadish Midday was married to the victim Soma Middey about 12 years prior to the incident. In the morning of the 11th December, 2010, the complainant, Jhoro Mondal, father of the victim, received a telephone call from one Meghnath Mondal, a relative of the appellants stating that his daughter was lying in a precarious condition at the nearby ‘Nimpith Hospital’ also called Shree Ramkrishna Rural Hospital. 3. Upon arrival of the victim’s father, he claims to have found his daughter badly beaten up with bruises and bleeding from her mouth and lying dead at hospital. A different picture however emerges from the inquest report. 4. The inquest was conducted at the hospital itself against the UD case. The inquest officer found no injuries on the body of the victim and that she may have died by poisoning. The inquest report further records that the relatives of the victim, one of whom was PW 1, the father of the victim himself that the victim killed herself by consuming poison, due to indignation. 5. The body was thereafter sent for post mortem where the PM Doctor also found no injuries on the body of the victim. All her organs were intact. The victim died of consuming of some toxic substance/poison. The viscera was preserved but never collected from PM Doctor or sent for FSL. 3 6. The prosecution case further is that the minor son of the victim aged about 10 years old, had told the Investigating Officer that his father one of the appellants, administered poison on the victim. The same is reiterated in the statement of the minor under Section 164 of the Cr. P. C. before the Judicial Magistrate, 3 months after the incident and 14 at the time of trial. 7. However in course of evidence, the child witness who was the only eye-witness to the incident had stated that after a fight between the victim and her husband where the victim struck the husband first, a prolonged fight continued throughout the night. 8. He further deposed in trial that on the fateful night, the victim was in an Auto Rickshaw of the husband parked outside their house. The legs of the victim were restrained and held by the appellant in Rupa Middey, sister of the appellant Jagadish. The mouth of the victim was opened by the appellant Gita Middey and the husband/appellant poured poison into the victim’s mouth. 9. While the child witness stated that a local village elder had taken the victim to the hospital in a Riksha Van, the appellant/husband in course of examination under Section 313 of the Cr. P.C. had repeatedly asserted that it was he, who could took the victim to the hospital. 10. Based on the investigation conducted by the Joynagar Police Station, charge sheet was submitted and charges were framed against the appellants as well as the father-in-law of the victim, one Jagabandhu 4 Middey and brother-in-law of the victim, Chittya Middey under Section 498A and Section 302 read with Section 34 of the IPC on 09.06.2014. THE TRIAL: 11. PW-1 was Jhoro Mondal, father of the victim. He deposed that the victim was tortured after four years of happy married life. He had given Rs. 5000, utensils and some household articles as dowry at time of marriage of the victim to the appellant. He had paid an additional sum of Rs.5,000/- to the appellant-husband for buying an Auto Rickshaw. 12. He deposed that he was informed by one Meghnath Mondal of the death of his daughter on 11.12.2010 early in the morning. He further deposed that all the appellants tortured the victim. The said Meghnath Mondal was not examined by the prosecution. 13. He had heard from the son of the victim that the appellants together forced the victim to consume poison and she had died. He admitted being present in course of inquest. He proved the inquest report. Such inquest report has, however, recorded that the victim herself consumed poison due to indignation. 14. Suggestions were made in cross-examination through which the defiance put forward its version. The version is that the victim had an illicit relationship with somebody else and that the local people had come to know about the same. Upon being confronted by the appellant- husband a fight ensued between the parties and the victim out of indignation of the local people coming to know of such affair, consumed the poison. 5 15. There are several other witnesses whose evidence may not be so relevant. What is however relevant in the evidence of PW-5 who was fourteen years old at the time of deposition before the trial court. He was Rajesh Middey recorded as Hemant Midday by the trial court. 16. He deposed consistently with his statement before the police as well as the Magistrate that his father administered poison on the victim after a prolonged fight. He however added in course of trial that the paternal aunt appellant held the legs of the victim in the auto-rickshaw and the grandmother appellant forced opened the mouth of the victim. 17. Admittedly the child was in the custody of his maternal grandparents for 4 years prior to the Trial. ANALYSIS OF THIS COURT: 18. There are some gaps in the evidence of prosecution namely, where the Auto Rickshaw was parked. Whether there was light in the place, where the Auto Rickshaw was parked. Such light normally may not present in the garage. Therefore, as to how and to what extent a child of 10 years could extend his vision to the garage and have witnessed the crime from the house is doubtful. 19. Admittedly, the Auto Rickshaw was not seized. The wearing apparels of the victim were also not seized or sent for any FSL. This would have thrown some more light on the actual cause of death of the victim and the process thereof. 6 20. Be that as it may, what has come on evidence before this Court is that the victim died of poisoning and the same is corroborated by the evidence of PW-9, Dr. Bikash Mukherjee/Purkait. 21. The Post Mortem report and the evidence of the Doctor indicate that the victim died of poisoning. There is no other injury found on the body of the victim. Such injury would have definitely been there had there been resistance by the victim, who was otherwise bold enough to strike her husband first, on the fateful night and had any illicit affair. 22. It is difficult to believe that the victim was taken to the auto- rickshaw by the appellants where she was allegedly administered poison by the appellant husband. If indeed the appellants wanted to kill the victim they could have done so in the privacy of their home. No injury whatsoever was found by the inquest officer whose report was proved by PW-1 the father of the victim. The inquest was witnessed by the PW-1 as per his deposition. The inquest officer had recorded the statement of PW- 1 that the victim herself consumed poison. 23. Apart from the evidence of PW-5 in course of trial on the role of Gita Midday and Rupa Midday, there is absolutely no evidence whatsoever to corroborate the same. The evidence of PW-1 in this regard cannot be accepted as he was not an eye-witness. 24. It is understandable that there can be no evidence to that effect since the incident occurred in the privacy of the house and that too in the middle of the night. Even in such case, however, an altercation 7 between the husband and the wife would have been heard by the neighbors. 25. While the evidence of a child witness may be read into evidence without further corroboration, this is permissible only when the testimony is unimpeachable. In this case, it remains unclear whether the witness could have witnessed the crime in a garage from the house. 26. If indeed the appellant husband tried to kill the victim, he would not take her to the hospital as repeatedly deposed by him in course of examination under Section 313 of the CrPC. The evidence of PW-1 and PW-5 both of whom are interested witnesses that the victim was taken to the hospital by village elder is not corroborated at all. Such person was neither examined by the police nor produced to depose in the trial. 27. There is no evidence of any torture on the victim by any of the appellants or their family members for dowry. There is also no evidence of any previous complaint in this regard as claimed by PW-1. No G.D. entry has been brought in evidence by the prosecution in this regard. 28. In the light of the aforesaid discussions, this Court is of the view that the trigger for incident of either the appellant’s husband administering poison on the victim or the victim for that matter having consumed the poison herself clearly appears to this Court to have been an incident that occurred at the moment itself. There could not and was not any pre-meditation in the crime that has occurred. However one cannot brush aside the consistent part of the evidence of PW-5. 8 29. In the peculiar facts and circumstances of the case, this Court is inclined to convert the conviction of the appellants from Section 302 of the Indian Penal Code to Section 304B of the Indian Penal Code. The conviction under Section 498A of the Indian Penal Code is set aside for want of any evidence at all. 30. Having regard to the discussions made hereinabove, the appellants are sentenced to the extent of incarceration that they have already suffered. 31. The appellant/husband, namely, Jagadish Midday, who has suffered incarceration for 7 years, shall stand convicted under Section 304B of the Indian Penal Code to the extent of the incarceration he is already suffered. He shall be set free and at liberty forthwith. The appellants, Gita Midday and Rupa Midday, who have suffered about three years of incarceration and are on bail, are sentenced only to that extent. The bail bonds furnished by them shall also stand discharged and they shall be set at liberty. 32. C.R.A. 498 of 2019 and C.R.A. 472 of 2019 are allowed to the extent indicated above. Consequently, all pending connected applications, if any, shall stand disposed of in terms of this judgment. 33. Each of the appellants shall be set at liberty forthwith from the custody, if not wanted in any other case, upon execution of bonds to the satisfaction of the Learned Trial Court, which shall remain in force for a period of six months under Section 437A of the Code of Criminal Procedure corresponding to Section 481 of the BNSS, 2023. 9 34. The trial court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action. 35. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible. (Rajasekhar Mantha, J.) I agree. (Rai Chattopadhyay, J.)