Appellate Division Cases
Abdur Rouf Sardar…………………………………….. Petitioner
The State………………………………………………. Respondent
Syed J. R. Mudassir Husain C J.
M. M. Ruhul Amin J
Amirul Kabir Chowdhury J.
Date of Judgment
16th March 2006
The Penal Code (XLV of I860) Sections 302/34.
of evidence given by a Hostile with A witness even if he is declared hostile, the whole of his evidence affecting the parties, favorably of unfavorably should be considered and that if the evidence of the hostile witness fits in with the attending circumstances it may be accepted and considered along with other evidence (13)
Abdul Malek, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record Petitioner Not represented.. .Respondent
01. Amirul Kabir Chowdhury J:- Convict petitioner Abdur Rouf Sarder seeks leave to appeal against the judgment and order dated 21.06.2005 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1716 of 1994 allowing the appeal in part, altering the order of conviction of the petitioner from Sections 302/34 of the Penal Code to Section 304 Part-I of the Code and modifying the sentence from life imprisonment to rigorous imprison for 10(ten) years and fine of Tk. 3,000/- in default, to suffer rigorous imprisonment for l(one) month more under the aforesaid Section of the Penal Code.
2. The petitioner along with 7 other accused were tried in Sessions Case No. 78 of 1994 under Sections 302/34 of the Penal Code.
3. Prosecution case, in brief, is that one Bhabaranjan used to reside in the house of one Narendra Nath Mondal at village Kapasdanga and that on 20.11.1990 accused petitoner along with others assaulted aforesaid Bhabaranjan, calling him a cow lifter as a result of which he died. Suranjan Kamur brother of deceased Bhabaranjan lodged FIR with Tala Police Station on the basis of which a case was started and the police after investigation submitted charge sheet against the accused petitioner and others. During trial they were charged under Sections 302/34 of the Penal Code to which they pleaded not guilty and claimed to be tried. The accused petitioner raised the defence plea that he being a Chairman at the instance of his political enemy Tajen the case was falsely instituted against them. 4. Be that as it may, the trial court examined 19 witnesses. Thereafter the accused Abdul Gafur and Abdul Khaleq were found guilty by the trial court under Sections 302/34 of the Penal Code and were sentenced to imprisonment for life and to pay fine of Tk. 3,000/-, default, to suffer rigorous imprisonment for l(one) month more acquitting other co-accused from the charge.
5. The aforesaid three convicts preferred Criminal Appeal No. 1716 of 1994 before the High Court Division and a Division Bench by the impugned judgment and order acquitted the two co-accused while maintaining conviction of the accused petitioner but altering the conviction and modifying the sentence as already maintained above. Hence is this petition. Mr. Abdul Malek, learned Counsel appearing for the petitioner has taken us
through the impugned judgment.
6. He submits, inter-alia, that the trial court did not consider the evidence of P.Ws. 5, 7 and 14 who being declared as hostile witnesses made material statements proving innocence of the petitioner and that the High Court Division committed error in not considering their statements in juxtaposition with the evidence of other witnesses.
7. He further submits that though the evidence of P.W.4 was considered to some extent but the treatment meted out in consideration of his evidence is unsatisfactory. 8. He further submits that P.W.5 Sonatan Mondal gave a different version contradictory to that of the prosecution case. Similarly P.W.7 Chowkidar, Abu Jafar also belied the prosecuting story and P.W. 14 Nikhil Chandra Mondal though was tendered made material statement leading to the irresistible hypothesis of innocence of the accused petitioner but the trial court and the High Court Division did not at all consider their evidence and thus committed serious prejudice to the accused petitioner. Similarly the evidence of P.W.4 Kali Dashi Sarkar has been given a gobye by the trial Court as well as by the High Court Division.
9. In support of his submissions, the learned Counsel referred to various decisions including the decision in the case of Siddique Munshi Vs. The State reported in 44 DLR (AD) 169.
10. We have considered the submissions made by the learned Counsel and perused the materials on record.
11. It appears that out of the witnesses produced by the prosecution P. W. 8 Md. Ahad deposed that on 20.11.1990 he found that Bhabaranjan (since deceased) was confined in tied condition in the cowshed of Haripada and two Chowkidars were guarding him and then the accused Chairman Abdur Rouf came there and he took a stick from the hand of Chowkidar Abu Jafar and started to assault Bahabaranjan Sarkder indiscriminately and while the stick was broken co accused Abdul Gafur brought another bamboo stick with which the accused Abdur Rouf again assaulted the victim.
12. Similarly P. W. 10 Matin Gazi corroborated P. W. 8 in toto. P.W. 11 Mizanur Rahman deposed that on 20.11.1990 he found the accused petitioner assaulting Bhahabaranjan alleging him to be a cow lifter. The evidence of aforesaid witnesses along with other evidence clearly brought home the charge against the accused petitioner. 13. The persistent argument of the learned Counsel is that a witness even if he is declared hostile, the whole of his evidence affecting the parties, favorably of unfavorably should be considered and that if the evidence of the hostile witness fits in with the attending circumstances it may be accepted and considered along with other evidence.
14. In the instant case we have noticed that besides the witnesses declared as hostile the evidence of other witnesses clearly has made out a case to warrant conviction.
15. The substance of the decisions referred to by the learned Counsel does not come to any benefit in the instant case in favour of the accused petitioner inasmuch as there is already evidence on record to warrant conviction against the accused petitioner through the evidence of other witnesses against whom there is no enmity with the accused nor they could be shaken at all in cross-examination.
16. Non-consideration of the evidence of the hostile witnesses, in such view of the matter did not, according to us disprove the prosecution case other wise proved by independent witnesses.
17. We have considered the evidence and materials on record including the judgment complained of. It is already found that the conviction has been altered modifying the sentence of the accused petitioner, altering the conviction from section 302 of the Penal Code to section 304 parti-1 of the Code and reducing the sentence too. In such circumstances we do not find any reason to lay our hands. The petition is, therefore, dismissed.
Source: III ADC (2006) 585.