Appellate Division Cases
(Criminal)
PARTIES
Abdul Momin Sarder……………………. Petitioner.
-Vs-
The State, represented by the Deputy Commissioner, Satkhira………Respondent
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Amirul Kabir Chovvdhury J
Md. Joynul Abedin J
.
Judgment Dated: 19th March 2007
The Penal Code, Sections 302, 326, 307 and 34
Convicting him under sections 302/34 of the Penal Code and sentencing him to suffer imprisonment for life for the murder of his own baby daughter, Rokshana, born of his second wife and informant Jamila Khatun and also convicting him under sections 307/34 of the Penal Code for attempt to commit murder of his aforesaid second wife and informant, Jamila Khatun (P.W.I) and also sentencing him in the same terms as above………….. (1)
Police took up investigation and on completion thereof submitted a charge-sheet against the accused including the accused petitioner under sections 302, 326, 307 and 34 of the Penal Code……………….. (3)
We regret, we do not find any merit in the points urged and hold that the High Court Division upon correct assessment of the evidence and materials on record arrived at a correct decision and rightly dismissed the appeal. There is therefore no cogent reason to interfere with the same …………………..(9)
Md. Nawab AH, Advocate-on-Record. ……………….For the Petitioner
For the Respondent …………………..Not Represented.
Criminal Petition For Leave To Appeal No. 110 Of 2004
(From the judgment and order dated 28.3.2004 passed by the High Court Division in Criminal Appeal No.870 of 1995.)
JUDGMENT
Md. Joynul Abedin J: This petition for leave to appeal at the instance of the accused petitioner is directed against the judgment and order dated 28.3.2004 passed by a Division Bench of the High Court Division in Criminal Appeal No.870 of 1995 confirming the judgment and order dated 30.4.1995 passed by the learned Additional Sessions Judge, 1st Court, Satkhira in Sessions Case No.23 of 1990 convicting him under sections 302/34 of the Penal Code and sentencing him to suffer imprisonment for life for the murder of his own baby daughter, Rokshana, born of his second wife and informant Jamila Khatun and also convicting him under sections 307/34 of the Penal Code for attempt to commit murder of his aforesaid second wife and informant, Jamila Khatun (P.W.I) and also sentencing him in the same terms as above.
2. The prosecution case, in short, is that the victim informant Zamila Khatun was
married to the accused petitioner Abdul Momin Sarder and accused Buli Bibi was
his mother and accused Halima Khatun was his first wife and they used to live in
the same house. Accused Abdul Momin Sarder had two issues by his first wife
accused Halima Khatun and she was driven out from his house by him some years
back and then he married the victim, informant Jamila Khatun. Accused Halima Khatun, first wife of accused Abdul Momin Sarder, therefore filed a criminal case against the accused petitioner when the latter took his first wife back in his house. The Victim informant meanwhile gave birth to a daughter aged about one year and four months and she used to be always badly treated by the accused. The accused often asked the informant victim to go to her father’s house but she did not comply. The accused petitioner used to kick and slap her off and on over trifling matters. In the evening following 20.2.1990 the victim informant after taking her evening meal went to her bed with her daughter and at one stage she woke up from sleep on hearing cry of her baby
daughter and after opening her eyes she found that accused at serial Nos.2 and 3 had caught hold of her legs and hands while accused petitioner caused ‘Dao’ blow on her neck causing bleeding injury and as such she lost her senses. She was taken to the hospital where she lodged the FIR to the officer-in-charge of Assasuni Police Station who came there on hearing the occurrence. Incidentally, it may be mentioned here that the victim informant came to know that her aforesaid daughter, who was sleeping by her side in the night of occurrence, was murdered. Accordingly, aforesaid Police Station case was started.
3. Police took up investigation and on completion thereof submitted a charge-sheet against the accused including the accused petitioner under sections 302, 326, 307 and 34 of the Penal Code.
4. The learned Additional Sessions Judge, on receipt of records, framed charge against the accused petitioner and others and read it over to them to which they pleaded not guilty and demanded trial.
5. The prosecution examined eleven P.Ws., all of whom were duly cross-examined
by the defence except the witnesses who were tendered by the prosecution.
6. The defence case as could be gathered from the trend of cross-examination is a case of innocence and further that they have been falsely implicated in the case out of enmity and grudge. Their case also is that some miscreants entered into the room where the informant victim was sleeping with her child and the miscreants entered the same in order to rape her and during scuffle the informant victim may have received injury on her throat and the minor daughter of the victim informant met with death due to indiscriminate injuries caused by the miscreants who came there just to rape the informant victim.
7. The learned trial court, in consideration of the evidence on record as well as facts and circumstances of the case, found the accused including the accused petitioner guilty for the offences under sections 302/34 and also under sections 307/34 of the Penal Code and convicted them thereunder and sentenced to suffer different terms of sentences as well as to pay fines with default clauses as mentioned above. Thereafter all the convict accused, including the accused petitioner filed Criminal Appeal No.870 of 1995 with the aforesaid
outcome. Hence the leave petition.
8. Mr. Md. Nawab Ali, the learned Advocatc-on-Rccord, submits that the prosecution has failed to prove the case beyond reasonable doubt as such the impugned order is liable to be set aside. The learned Advocate further submits that the teamed Judges of the High Court Division erred in law in failing to apply their independent judicial mind to the fact
and circumstance of the case in the light of the legal evidence on record as the final
court of fact while affirming the decision of the trial court and this has caused a iscarriage
of justice. Hence the impugned judgment and order deserve interference by this court.
9. We have heard Mr. Md. Nawab Ah and perused the impugned judgment and other connected papers. We regret, we do not find any merit in the points urged and hold that the High Court Division upon correct assessment of the evidence and materials on record arrived at a correct decision and rightly dismissed the appeal. There is therefore no cogent reason to interfere with the same.
10. Accordingly, the petition is dismissed.
Source : V ADC (2008), 169