1 Form No: J(1) IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:- The Hon’ble Justice Rajasekhar Mantha And The Hon’ble Justice Anuj Singh CRA 410 of 2012 With CRAN 3 of 2026 Tinku @ Md. Asif Vs. The State of West Bengal For the appellant: Ms. Suveni Banerjee, Adv. For the State: Dr. Pradip Banerjee, ld. A.P.P., Mr. Sankalpa Bhattacharjee, Adv. Mr. Amal Kumar Dutta, Adv. Hearing concluded on: September 22nd, 2026 Judgment pronounced on: September 23rd, 2026 RAJASEKHAR MANTHA , J. :- 1. This appeal is directed against the judgment of conviction and order of sentence dated 20th June, 2012 and 21st June, 2012 respectively, passed by the Additional District and Sessions Judge, 2nd Court, Asansol, in 2 Sessions Trial No. 16 of 2009, arising out of Case No. 79 of 2009. The appellant was sentenced for a period of three months for the offense under Section 498A and for life imprisonment under Section 304B of the IPC. THE PROSECUTION CASE 2. The appellant was a rickshaw puller and also sold coal from time to time. He married the deceased, Tabassum, on 15th September, 2004. Two boys were born out of their wedlock. 3. The victim died on 3rd December, 2008, within four years of marriage. The appellant and the victim last resided at Ambad in Azad Nagar. The victim was the second daughter. 4. In the complaint filed by the father of the victim, PW-1, he alleged that at the time of marriage, he had given Rs. 10,000/-, two tolas of gold, and some other articles to the appellant. He further complained that the appellant used to regularly torture the victim. He gave Rs. 1,000/- and Rs. 2,000/- from time to time to the appellant. The appellant lastly demanded a sum of Rs. 2,000/- from the complainant, PW-1, through his deceased wife. The victim was found by the appellant himself, lying on the bed, strangled and dead. 5. The appellant is stated to have woken up in the night after hearing the cries of his son, whereupon he found the victim lying strangled in a cot. An inquest was conducted on the dead body by PW-10, who is also the Investigating Officer. A further inquest was conducted by the Executive Magistrate. No injuries whatsoever were found on the body of the victim, other than the ligature mark on her neck. The appellant and complainant, PW 1, were present at the time of the inquest. Neither however, disclosed any history of assault on the victim. 3 6. The Investigating Officer completed his investigation and filed a charge sheet. Charges were framed against the appellant under Sections 498A and 304B of the IPC on 24th March, 2009. THE TRIAL AND EVIDENCE ON RECORD 7. PW-1 was the complainant himself, Md. Jalil. He ran a tea-stall in his village Kumarpur, under Kulti PS, district Burdwan. He was the father of the victim. He deposed that he gave Rs. 10,000/- cash, gold ornaments, household articles, and furniture to the appellant at the time of marriage. He further deposed that the appellant had good relations with the victim in the initial years of marriage, but thereafter started torturing her in various ways. His daughter often visited her parents and stayed there. The victim informed PW-1 that she was mentally and physically tortured by the appellant. 8. He has deposed that four days prior to the incident, the victim came to her parents' house stating that the appellant demanded Rs. 2,000/-. He advised his daughter to return to her matrimonial house and assured her that he would arrange the money. By the time he could do so, the victim had died. He also deposed that the appellant told him that the victim fell asleep after taking her dinner on the fateful night between 2nd and 3rd December, 2008. The complaint was prepared by one Abdul Rafique of Kumarpur village, PW 8, on the instructions of PW-1. 9. In cross-examination, however, PW 1 indicated that PW-1's elder son, namely Jamil, PW-9, married the appellant's sister against his family's wishes. He and his family members did not attend the marriage of his elder son, Jamil (PW-9).He was unhappy with the same. 4 10. He admitted that he visited the house of the appellant and the deceased at Azad Nagar. The victim gave birth to her two sons in his house. The victim also stayed that a year after the birth of her first son in his own house until the delivery of her second son. He demanded maintenance from the appellant for his daughter and children. He was a tea stall owner. The appellant was poor. 11. The Nikahnama and marriage register certificate did not contain any record of payment made by PW-1 to the appellant. He also could not show any withdrawal of any sums from his postal bank account to demonstrate any payment made to the appellant. 12. He has deposed that the appellant visited his house frequently along with his daughter and resided there for some days and months regularly. Admittedly, the complaint did not contain the details or description of the ornaments and utensils given to the appellant. He also deposed that he did not speak to his daughter at all for a year after she stayed at Ambad. 13. PW-2 was Md. Jumman. He was a local resident of Kumarpur, where PW-1 stayed. He deposed that the victim used to stay in her father's house with her husband for a few days and sometimes for months. He has deposed that PW-1 asked for money from the appellant for the maintenance of his daughter. He also could not indicate the exact date on which the victim informed him regarding the torture by the appellant. He could not confirm to whom PW-1 handed over Rs. 10,000/- at the time of marriage. He has deposed that PW-1 did not inform him about the lodging of the complaint. 5 14. PW-3 was Thera Khatoon, mother of the victim. She has deposed that the victim asked for money from the victim, but could not indicate the exact dates of such demands. She has deposed that the appellant assaulted the victim in her presence. This is, however, not corroborated by the evidence of PW-1or any other PWs. 15. In cross-examination, she confirmed that her eldest son-in-law lived near the house of the appellant. She could not indicate the exact date on which the appellant paid Rs.10,000/- or other ornaments as claimed by PW 1. She confirmed that the victim often told her and was depressed about the poor financial condition and the low income of the appellant. She also did not inform the police of the alleged demand of Rs.2,000/- by the appellant four to five days before the marriage. 16. PW-4 was Dr. S.N. Banerjee, was the PM doctor. He conducted post- mortem of the victim. He confirmed that there was no injury on the body of the victim. He stated that the victim died due to asphyxia as a result of death of suicidal nature. The time of death, however, could not be indicated either by PW-4 or the inquest officers. 17. PW-5 was Rahmat Ali, son-in-law of PW-1 and PW-3. He lived beside the house of the appellant and indicated that there were quarrels from time to time between the appellant and the victim. She visited her father's house regularly. He also stated to have told PW-1 and PW- 3mother that the accused demanded money from her. PW-5 thereafter started living next to the house of PW 1. 18. He stated that the appellant worked as a daily labourer. He, therefore, did not know that the appellant was a rickshaw puller or sold coal. He did not tell the I.O. as regards any torture by the appellant or demand 6 for any dowry. He did not inform the I.O. that P.W.1 gave a sum of Rs.10,000/- in cash or that he was present at the marriage between the appellant and the deceased. He also did not inform the I.O. that P.W.1 gave any gold ornaments to the accused at the time of marriage. 19. P.W 6 was Mohammad Jahir, a resident of Azad Nagar where the appellant lived.. He was the landlord of the house where the appellant and the deceased lived. Neither P.W.1 nor P.W.3 ever complained to him against the appellant. He was not aware of any torture by the appellant on the victim. 20. P.W.7 was a police constable. 21. P.W.8 was the scribe of the complainant and tutor of the deceased. The victim never complained to him about any torture by the appellant on her. He deposed that P.W.1 used to visit his house, but he had not visited the house of P.W.1 and P.W.3. 22. P.W.9 was Mohammad Jamil Khan, son of P.W.1. P.W. 9 was married to the sister of the appellant. He has deposed that the victim had good relations with the appellant. 23. P.W.10 was the I.O. The appellant was examined under Section 313 of the Cr.P.C. Based on the evidence on record, the trial judge convicted the appellant as indicated hereunder: ANALYSIS OF THIS COURT 24. This Court firstly notes that there were absolutely no injury marks on the victim discovered at the time of two inquests or in the course of post- mortem. The PM Doctor deposed that the death occurred by suicide. The investigation has not revealed in what circumstances the victim was 7 asphyxiated. The absence of injuries on her body clearly indicates that there was no assault or torture. If the victim had been strangulated to death, the dead body of the victim would have marks of injuries caused by physical struggle with the appellant. The ocular evidence, discussed below, is not consistent with the medical evidence. This amounts to fundamental defect in the prosecution case. In Abdul Sayeed v. State of Madhya Pradesh reported in 7 (2010) 10 SCC 259, it was held as follows :- 32. In Ram Narain Singh v. State of Punjab [(1975) 4 SCC 497 : 1975 SCC (Cri) 571 : AIR 1975 SC 1727] this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. Emphasis Applied 25. The prosecution, therefore, has not been able to bring home the charge against the appellant that he had, in any way, strangled the victim or was responsible for her death. The IO has not seized any article by which the victim was strangulated. 26. The evidence of P.W.1, 2, and 3 is parrot-like. There are several allegations made that the appellant tortured the victim. This is belied by the fact that both the appellant as well as the victim visited the house of P.W.1 and 3 regularly. In fact, they stayed in the house of P.W.1 and 3 nearly for a year after the birth of the first child. In fact, it is P.W.1 who admittedly demanded money from the appellant to maintain his daughter. There is no evidence produced by the prosecution of any payment of cash or gold or other articles to the appellant, at the time of marriage. 8 27. In the present case, the prosecution has failed to prove that immediately prior to the death of the victim, the appellant demanded any dowry from her or subjected her to torture. Hence, the prosecution cannot avail the presumption under Section 304B of the Indian Penal Code, read with Sections 113A and 113B of the Indian Evidence Act, 1872. These provisions, inter alia, specify that when a woman dies in her matrimonial home within seven years of marriage, and it is established that soon before her death she was subjected to cruelty or dowry demands by her husband or his relatives, it shall be presumed that such cruelty or dowry demand resulted in her death. In M. Srinivasulu v. State of A.P. reported in (2007) 12 SCC 443, it was held as follows: 5. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. ‘Soon before’ is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence…… Emphasis applied 28. While it is true that a marriage certificate cannot contain any evidence of payment of dowry, a Nikahnama often does so. The quantum of dowry or Dahez is invariably recorded in a Nikahnama. P.W.1 admitted that the same was not done in the instant case. 9 29. Apart from oral evidence of P.W.1 and 3 having given dowry in the form of Rs.10,000/- in cash and gold ornaments, there is no specific evidence to that effect. P.W.1 could not produce particulars by submission of the accounts from the postal authorities that he had drawn the said sum for payment of dowry. 30. The allegation of P.W.1, 2, and 3 for payment of dowry is, therefore, completely unsustainable. It is difficult for the Court to believe that P.W.1, who ran a tea stall and had two other unmarried daughters, could have given a sum of Rs.10,000/- and two or three tolas of gold or furniture to the appellant. This is clearly an exaggeration and embellishment by P.W.1 and 3. 31. The evidence of P.W. 2 also does not inspire much confidence. He was a neighbor of P.W. 1. He deposed that appellant used demand money from PW 1 when he resided at the house of P.W.1 and 3. He could not exactly recollect when the victim had told him as regards the torture by the appellant. He did not inform the police in the course of investigation that the appellant tortured the victim. He did not know what P.W.1 exactly did when he went to the police station. 32. In so far as P.W.3, mother of the victim, is concerned, she could not indicate the dates and time on which her daughter asked for money as allegedly demanded by the appellant. Her allegation that the appellant assaulted the victim in her presence is not corroborated by any other witness, including her husband, PW 1. The evidence of P.W.3 is relevant to the extent that the victim was depressed and lamented to her mother that her husband was very poor and their financial condition was not 10 good. The victim, however, lived in the house with her husband along with her two sons. 33. The evidence of record demonstrates that out of four years of marriage, at least half of it was spent by the victim in the house of P.W.1 and 3. In fact, both the children were born in the house of P.W.1 and 3. The appellant frequented the house of P.W.1 and 3. There is no evidence on record to indicate as to whether P.W.1 and 3 confronted the appellant as regards the allegation of torture by the appellant on the victim. 34. PW 5 has deposed as tutored to him by P.W.1 and 3. He did not make any allegation against the appellant while his statements were being recorded by the I.O. In fact, except P.W.1, none of the other prosecution witnesses had informed the I.O. what they had deposed in court. 35. From the evidence of P.W.10, who was the I.O., it is clear that no incriminating material or any material used to strangle the victim was recovered by the I.O. The circumstances leading to the asphyxiation of the victim are completely unexplained. The only evidence against the appellant is that he told P.W.1 that he was in the house on the night where the victim had died. There is no other evidence from any of the prosecution witnesses relating to the appellant being present in the house. 36. It is now established that the last seen theory is just one of the links in a case based on circumstantial evidence. The other evidence of torture or payment of any dowry by the parents of the victim to the appellant is sketchy and not reliable. 37. Even the "last seen" theory, is not supported by any evidence to show that the appellant was with the victim and had the intention and 11 opportunity to end her life. In fact, the appellant/husband mentioned in his examination under Section 313 of the CrPC that he woke up upon hearing the cries of his son. 38. The fact that appellant was with his wife has not been established to the extent that the appellant made any attempt to strangulate her. The allegations of dowry and torture have not been established. Therefore, in the facts of this case, the prosecution has failed to establish that the appellant had a motive to end the life of his wife. Motive assumes great significance in cases based on circumstantial evidence. The poor financial condition of the appellant/husband cannot be a ground to assume that he asked for dowry or tortured his wife when she failed to bring it. CONCLUSION 39. In the light of the discussions hereinabove, this Court is of the view that the prosecution has miserably failed to bring home charges against the appellant. The ingredients of Section 498A have also not been clearly established beyond reasonable doubt. 40. None of the ingredients of Section 304B have been at all established by the prosecution. The medical evidence does not indicate any sign of assault or torture by the appellant. 41. In the light of the above, this Court is of the view that the appellant could not have been convicted for life under Section 304B IPC. While there is some evidence to indicate that the appellant had consumed alcohol and wasted the little money that he earned, there is equal evidence to show that the victim was unhappy with her husband 12 because of his poor financial condition. The appellant could at best be held guilty of not maintaining his family properly, which by itself cannot be a crime. 42. For the reasons stated hereinabove, the impugned judgment and order of conviction and sentence are set aside. CRA 410 of 2012 is allowed. Consequently, CRAN 3 of 2026 and all connected applications, if any, shall stand dispose off in terms of this judgment. The appellant is on bail. The bail bond shall stand discharged. The appellant shall be at liberty subject to his executing a bond to the satisfaction of the Learned Trial Court under Section 481 of the BNSS, valid for 6 months. 43. Let a copy of this judgment and the Trial Court Records be sent to the trial court at once. 44. Urgent certified copy of this judgment, if applied for, shall be made available to the parties upon compliance with due formalities. (Rajasekhar Mantha, J.) I agree. (Anuj Singh, J.)