152. 29.07.2026 Court No.8 (Tanmoy) IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION CRA (DB)/87/2024 In Re: - An appeal against the judgment and order dated 21.12.2023/22.12.2023, passed by the learned Additional Sessions Judge, 3rd Court Howrah, in SC No. 3/2011, convicting the appellant under Sections 498A/304B of the Indian Penal Code, 1860. AND In the matter of: - OSMAN MALLICK @ OSMAN ALI MALLICK … appellant. Mr. Himanshu De, Sr. Adv. Mr. Navanil De Mr. Srijan Ghosh Ms. Monami Mukherjee Mr. Debarshi Mukhopadhyay …for the appellant. Mr. Kallol Mondal, Ld. PP Ms. Triparna Roy …for the State. Dictated by Apurba Sinha Ray, J. 1. This appeal was preferred against a judgment of conviction dated December 21, 2023 and order of sentence dated December 22, 2023, passed by the learned Additional Sessions Judge, 3rd Court Howrah, in connection with Sessions Case No. 3/2011, convicting the present appellant under Sections 498A/304B of the Indian Penal Code, 1860. 2. Mr. Himanshu De, learned Senior Counsel representing the appellant, has argued before us that the learned Trial 2 Judge has relied upon the hearsay evidence of several witnesses and without considering the discrepancies and anomalies in the evidence, convicted the present appellant without any legal basis. Mr. De has also pointed out that the parents-in-law of the victim have been acquitted by the selfsame judgment. Mr. De has drawn our attention to the deposition of PW1 (victim’s mother) wherein she has admitted that her daughter did not have consent in the marriage but her son stated that as the appellant Osman was a boy from a poor family, he would make him established by his own means. PW1 also did not have consent but her son stated that he will make a stall for Osman and if required he will keep his sister in their house (that means, father’s house of the victim). Mr. De has submitted that as the victim was unhappy with her marriage, she committed suicide in the bathroom of her matrimonial home. Not a single witness from the locality has stated anything against the appellant or his parents for demanding dowry from the relatives of the victim. Mr. De has also drawn our attention to the medical evidence wherein the Doctor did not comment as to whether the death was homicidal, suicidal or accidental. 3. Learned Senior Counsel has pointed out that no seizure was made in respect of any kerosene container or matchstick or lighter from the place of occurrence. The evidence discloses that at the relevant point of time, 3 neither the appellant, nor his parents were in the house where the untoward incident occurred. 4. In support of his contention learned Senior Counsel has relied upon several judgments which are as follows:-  Subramnian v. State of Tamil Nadu & Anr. reported at (2009) 14 SCC 415,  Rupal Mahato & Ors. v. The State of West Bengal, reported at (2017) 1 C Cr LR (Cal) 629,  State of Punjab v. Kewal Krishan reported at (2023) 13 SCC 695,  Hira Lal & Ors. v. State (Govt. of NCT), Delhi reported at (2003) 8 SCC : 2003 SCC (Cri) 2016,  Sanju @ Sanjy Singh Sengar v. State of M.P. reported at (2002) 5 SCC 371,  Gangula Mohan Reddy v. State of A.P. reported at (2010) 1 SCC 750,  Gayadin v. State of M.P. reported at (2005) 12 SCC 267 : (2006) 1 SCC (Cri) 549 : 2005 SCC Online SC 269,  Kali Ram v. State of H.P. reported at (1973) 2 SCC 808 and  Tarun @ Gautam Mukherjee v. State of West Bengal reported at (2001) 10 SCC 754. 5. Ms. Triparna Roy, learned Counsel appearing for the State, has argued vehemently that there is sufficient incriminating evidence against the appellant. She has 4 drawn our attention to the depositions of PW1, PW4 i.e. the mother and the sister of the victim respectively, showing that the victim was subjected to torture at the hands of the present appellant and his parents for demand of dowry. She has also drawn our attention to the rough sketch map which has been marked as Exhibit-6, showing that the bathroom was just adjacent to the kitchen and well within the boundary of the house of the appellant. She has specifically pointed out the deposition of PW4, Mansura Begum, wherein she deposed that on May 22, 2009, at 05:00 a.m., the victim called her on mobile phone and at that time she was crying. She stated that she was beaten by her father-in-law, mother-in-law and her husband. After about 10 minutes when PW4 tried to make a call on the victim’s husband’s mobile, she found it switched off. On the same day, around 09:00 a.m., PW4 heard that the victim was burnt and had died at Howrah Hospital. 6. We have considered the rival contentions of the parties and we have found that although the appellant was convicted by the learned Trial Judge, there are certain lacunae in the relevant judgment. First, the body of the deceased was found inside the bathroom and the door was bolted from inside. It is also found from the evidence that ‘para’ people recovered the victim and she was taken to hospital. It does not appear from the sketch map nor from any other evidence that there was any window or any opening in the 5 bathroom. Therefore, if the door of the bathroom was bolted from inside, it is obvious that the victim bolted the door after entering the bathroom. Apart from the mother (PW1) and PW3, no other ‘para’ people have stated anything regarding quarrel between the victim and her in- laws or demand of dowry by the appellant and his parents. The deposition of PW4 was very much relevant, but as the Investigating Officer was not examined due to his death, it was not clear whether PW4 had made such statements before the Investigating Officer. PW2, the local witness, has been declared hostile by the prosecution and at the time of cross-examination by the defence, she has stated that Osman leaves the house at 05:00/5:30 a.m. to join his jari work. At the time of the incident none was present in the house. It is also found from her cross-examination that after marriage she never saw any quarrel between Ansura (victim) and her husband or in-laws. PW5, Sk. Anowar, in his deposition, has stated that after 15 days of marriage he had been to the matrimonial home of his sister-in-law and found that the victim was beaten. On enquiry, the victim told him that further demand of Rs.30,000/- was made. However, it appears that PW5 has improved his version during trial since he did not make such statement before the concerned Investigating Officer. If we peruse his cross- examination, we shall find that he has admitted that he has not stated before the Police that after 15 days of 6 marriage he had been to the matrimonial home of his sister-in-law and further demand of Rs.30,000/- was made. 7. We have also considered the deposition of PW6, Morium Bibi, wherein she has deposed that the victim reported to her about the torture at the instance of her in-laws for demand of further cash and ornaments. As the Investigating Officer was not examined, we are unable to ascertain whether she made such statements before the concerned Investigating Officer or not. 8. Therefore, we do not find that the prosecution has been able to prove the foundational facts of dowry demand by producing cogent evidence. It is also not proved from the materials on record that the appellant and her parents were present at the time of the incident. The death of the deceased occurred inside the bathroom and the door of the bathroom was bolted from inside and further, the ‘para’ people recovered the victim from such bathroom after breaking open the door. It is also pertinent to mention that the defence has very pertinently and cogently pointed out about the unhappiness of the victim for her marriage with Osman, who hailed from a poor family. It is also found from the cross-examination of PW1 that the victim did not consent to such marriage. PW1 was also reluctant to give consent to such marriage. The mother of the victim has specifically stated that she agreed to such proposal of 7 marriage as her son advised that he will assist the appellant Osman to get established. But, unfortunately, this vital witness (the son) was not examined nor was cited in the charge-sheet. We have found that some of the prosecution witnesses including PW1 and PW4 have deposed that they came to know of the victim having been set on fire from the ‘para’ people. None of such ‘para’ people has been examined in that regard. Saydul, from whom PW1 came to know about the torture, was not examined by the prosecution. 9. Considering all aspects of the matter we find that there are several discrepancies and loopholes in the judgment. The evidence of the witnesses was not correctly assessed by the learned Trial Judge. The prosecution has not been able to prove its case beyond reasonable doubt. 10. Accordingly, the judgment of conviction dated December 21, 2023 and order of sentence dated December 22, 2023, passed by the learned Additional Sessions Judge, 3rd Court Howrah, in connection with Sessions Case No.3/2011, are hereby set aside. 11. It is thus ORDERED that the appellant/convict, namely, OSMAN MALLICK @ OSMAN ALI MALLICK shall be set at large at once. He be released immediately from custody. 12. The Office of the learned Registrar General of this Court shall forthwith forward a copy of this judgment to the Superintendent of the concerned Correctional Home for 8 immediate release of the appellant/convict at once. The Trial Court Records (TCRs) be also transmitted to the learned Trial Court forthwith. 13. The appeal being CRA (DB)/87/2024 is accordingly disposed of. 14. Criminal Section is directed to make available certified copies of this order to the parties, if applied for, upon compliance with all requisite formalities. (Apurba Sinha Ray, J.) (Arijit Banerjee, J.)