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2009 DIGILAW 650 (CAL)

Tarikul Hassan @ Dhiro v. STATE OF WEST BENGAL

2009-08-24

ASHIM KUMAR ROY

body2009
Judgment :- (1.) In the instant criminal revisional application, the petitioners challenged an order passed by the Learned Additional Sessions Judge, Kandi in connection with Sessions Trial No. 28 of 2004 whereby the Learned Judge altered the charge under Sections 498A/306 of the Indian Penal Code to a charge under Sections 498A/302 of the Indian Penal Code. (2.) Heard Mr. Navanil De, learned advocate, appearing on behalf of the petitioners and Mr. Kashem Ali Ahmed, learned advocate, appearing on behalf of the State. Perused the impugned order as well as other materials on record. (3.) In connection with the aforesaid Sessions case, the present petitioners were facing their trial for offences punishable under Sections 498A/306 of the Indian Penal Code for subjecting Mamtaz Begum to cruelty during her lifetime, being her husband and his relations and also for abetting her to commit suicide. In course of the aforesaid trial, till date 12 witnesses have been examined out of total 19 charge-sheeted witnesses. (4.) It was the case of the defence that Mamtaz has not committed suicide but died due to an accidental fall from the roof of her matrimonial home. Accordingly, such suggestions were given to the P.W. 1, Golam Hossain, brotherin- law of the victim during their cross-examination and in reply to the same, the said witnesses stated as follows; P.W. 1, Golam Gaus stated that I do not know whether it is fact or not but I heard that all the accused persons pushed my sister Mamtaz from the roof of the house of the accused persons and she fell on the ground and as a result she died on the spot. I heard about that from some persons of Talgram. I cannot recollect names of those persons. P.W. 5, Musaraf Hossain stated that I even suspected that electric shock was given and ultimately she was pushed down from the roof of the house of the accused persons. Whereas P.W. 4, Abdur Rahim, a villager stated in his chief that he heard that Mamtaz was killed and some were telling that she was killed by pushing down from the roof and some were telling that she committed suicide as she failed to bear the torture. Whereas P.W. 4, Abdur Rahim, a villager stated in his chief that he heard that Mamtaz was killed and some were telling that she was killed by pushing down from the roof and some were telling that she committed suicide as she failed to bear the torture. The said witness in his cross-examination further stated when he came out from his house, his nephew at first told him about the death of Mamtaz and thereafter, he heard from some other persons that she was killed is false. Similarly, P.W. 6, Nilmoni Saha stated in his chief, Mamtaz fell from the roof. Her death was unnatural one but he cannot say whether she was pushed from the roof or fell accidentally from the roof. 4. Now from careful examination and scrutinizing the evidence of the aforesaid witnesses, viz., P.W. 1 Golam Gaus, P.W. 4 Abdur Rahim, P.W. 5 Musaraf Hossain, I find that they have no direct knowledge as to how the victim Mamtaz fell from the roof top of her matrimonial home, all that they have claimed is this that they heard from the villagers that she was pushed from the roof-top of her matrimonial home. None of them disclosed the identity of the persons from whom they have heard it. Thus, their evidence remains to be hearsay in nature and not admissible. At the same time the P.W. 1 admitted that he does not know whether it is fact or not but heard that all the accused persons pushed his sister from the roof of their house. According to the P.W. 2 that he heard that when Mamtaz was wearing clothes on the roof at that time she accidentally fell on the ground from the roof and died. The P.W. 4 also admitted that he heard from some persons that she was killed is false. Similar was the evidence of the P.W. 6, who admitted that he has no direct knowledge whether she was pushed from the roof or fell accidentally there from. The Autopsy Surgeon has not yet been examined. (5.) In the instant case, perusing the evidence on record, I find the alleged evidence that she was killed are absolutely hearsay in nature. The witnesses have admitted that they have heard it that the victim was pushed from the roof by the accused persons. The Autopsy Surgeon has not yet been examined. (5.) In the instant case, perusing the evidence on record, I find the alleged evidence that she was killed are absolutely hearsay in nature. The witnesses have admitted that they have heard it that the victim was pushed from the roof by the accused persons. Therefore, the learned Trial Court was not at all justified in altering the charge from Sections 498A/306 of the Indian Penal Code to Sections 498A/302 of the Indian Penal Code. Accordingly, the order impugned is set aside. The Trial Court is directed to proceed with the trial from the stage where the charge was altered and concluded the trial as expeditiously as possible. I make it clear if during the examination of the remaining witnesses any materials transpired which may be translated into legally admissible evidence justifying alteration of charge the Trial Court shall be at liberty to take steps in accordance with law. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.