Abu Jafar Jamadar & Anr vs Unknown
2022 Latest Caselaw 2652 Cal

10.05.2022 Sl. No.53.

Mithun/Srimanta Ct.No.42.

CRR/1984/2012

(Via Video Conference)

In the matter of : Abu Jafar Jamadar & Anr.

...petitioners.

Mr. Dipanjan Chatterjee, Adv.

Mr. Atanu Ghosh, Adv.

...for the petitioners.

In the instant criminal revision, legality, validity and

propriety of the order dated 27th February, 2012 passed by

the learned Additional Sessions Judge, Fast Track, 4 th Court at

Alipore in Criminal Appeal No.37 of 2006 affirming the

judgment and order of conviction and sentence dated 30 th

June, 2006 passed by the learned 4 th Assistant Sessions

Judge at Alipore in Sessions Trial No.5(9)02 convicting the

petitioners under Sections 498A and Section 306 read with

Section 34 of the Indian Penal Code and sentencing them to

undergo rigorous imprisonment for 1 year with fine and

default clause and also to undergo rigorous imprisonment for

3 years with fine and default clause for the offence punishable

under Sections 306/34 of the Indian Penal Code is challenged

by the accused persons/petitioners.

It is not in disputed that one Meherunassa Bibi married

to one Abdul Malek Jamadar about 1 year before she had met

with an unnatural death on 5th May, 1999. The accused

persons/petitioners are the son and son's wife of the said

Abdul Malek Jamadar. The accused No.1 is the son from the

first marriage of Abdul Malek Jamadar.

Prosecution case in brief is that the accused persons

used to treat deceased Meherunassa Bibi with cruelty. They

also compelled her to mortgage her landed property to satisfy

their monetary demand. Ultimately, failing to bear such

torture, Meheuneswara Bibi committed suicide on 5 th May,

1999 pouring kerosene oil of her body and setting herself on

fire. The petitioners faced trial and charge of Section

498A/306 of the Indian Penal Code was framed and

subsequently they were convicted and sentenced in the

manner described above.

It is submitted by the learned Advocate for the

petitioners that during trial of the case P.W.1 Rupbanu Bibi ,

P.W.2, Abdul Samat, P.W.3, Abu Tahar Jamadar, P.W.4,

Rafikul Jamadar and P.W.5, Manowar Hossain stated on oath

that the relation between the Meherunassa Bibi and her

husband was cordial and on 5 th May, 1999 she had met with

an accidental death when a kerosene stove had burst.

It is further submitted by the learned Advocate for the

petitioners that P.W.7, Noorunessa Bibi is the younger sister

of Meherunassa, since deceased. In her evidence, she stated

that Meherunassa used to tell her during her lifetime that her

husband and son of her husband from his first marriage and

his wife used to torture her both physically and mentally.

They compelled her to sell the share of her paternal property

at Kakdwip for celebrating "Mukhebhat" ceremony of the

grand son of her husband. Meherunassa collected sum of

Rs.7,000/- by selling her land and handed it over to her

husband but her husband was not happy and she was

assaulted severally.

It is submitted by the learned Advocate for the

petitioner that except P.W.7, no other witnesses supported

the prosecution case. The learned Trial Judge held the

accused persons guilty for committing offence under Sections

498A/306/34 of the Indian Penal Code without having any

evidence against the petitioners.

It is needless to say that the power of the Revisional

Court is very limited and the Court sitting in revision cannot

reappreciate the evidence on record. But if it is found from

the impugned judgment per se that the impugned judgment

and consequent order of conviction is perverse from the face

of the record, the Revisional Court has the jurisdiction to

interfere so that illegality may not be caused to the parties to

a litigation.

On perusal of the impugned judgment it is absolutely

clear that except P.W.7, all the witnesses stated that the

death of Meherunassa was accidental in nature. It is also

found from the evidence that the present petitioners namely

Abu Jafar Jamadar and his wife Mst. Jasmina Bibi used to live

in a separate mess and they had no connection with the

family of the father of the petitioner No.1 namely Abdul Malek

Jamadar. From the evidence of P.W.7, it is ascertained that

Abdul Malek Jamadar allegedly used to put pressure upon the

deceased to satisfy the illegal demand of money even by

mortgaging and selling her paternal property. No allegation

has been made against the present petitioners. I failed to

understand as to why the learned Trial Judge held the

petitioners guilty for committing offence under Section

498A/306/34 of the Indian Penal Code. The Learned Trial

Judge convicted the accused persons mainly on two fold

grounds. First, the Investigating Officer failed to seize the

stove which was burst inflicting portion injury to the deceased

and secondly, the defence failed to produce any witness to

substantiate the story of bursting of stove. It is needless to

say that the Investigating officer had the duty to seize

incriminating material that may be necessary for the purpose

of proving charge against the accused. For the fault of

investigation the accused cannot suffer. On the other hand,

they are entitled to benefit of doubt as a result of faulted

investigation. Moreover, it is the cardinal axiom of criminal

administration of justice that prosecution must prove its case

beyond any shadow of doubt. The accused persons are to be

held innocent till their guilt is held to be proved by

satisfactory evidence. Criminal justice delivery system does

not postulate proof of innocence by the accused persons. The

Learned Trial Judge convicted the accused persons as defence

failed to prove that the victim died due to bursting of a

kerosene stove. The Learned Trial Judge wrongly placed the

burden upon the accused persons to disprove the case of the

prosecution. The Learned Trial Judge failed to consider that

the accused persons had no liability to prove their innocence

in criminal trial.

The judgement of affirmation passed by the Learned

Additional Sessions Jude, 4th Fast Track Court at Alipore in

Criminal Appeal No. 37/2006 also suffers from above material

irregularity and illegality. In view of the above discussion, I

have no other alternative but to hold that the impugned

judgement and order of conviction and sentence is liable to be

set aside. Accordingly, the instant criminal revision is

allowed. The accused persons are held to be acquitted and

discharged from their bail bonds.

( Bibek Chaudhuri, J. )