Appellate Division Cases
(Criminal)
PARTIES
Ali Akbar@ Ali Abkar Dewan …………………………..Petitioner
vs
The state …………………………………………………. Respondent
JUDGES
Syed J. R. Mudassir Husain C. J
Mohammad Fazlul Karim J.
Amirul Kabir Chowdhury, J.
Date of Judgment
27th July 2005
The Penal Code (XLV of 1860), Section, 395, 397,412.
Section 35A of the Code of Criminal Procedure.
As the accused had no knowledge that the 13 barrels of oil recovered from his custody were the subject matter of the dacoity and none of dacoits identified the accused to be in dishonest possession of the recovered 13 barrels of stolen oil and that the accused-petitioner has been languishing in jail custody for the last l years and having been found guilty under section 412 of the Penal Code, ends of justice would be best (5)
Take lenient view about the sentence and are of the view that ends of justice would be best served if the sentence of the accused petitioner is reduced to the period the petitioner was in custody pursuant to the accusation in the case and the time already spent in imprisonment while in custody upon conviction and treat the period of sentence as has ‘already been served out’ and to pay fine of TK. 5,000/-, in default, to suffer rigorous imprisonment for 6 months more maintaining the conviction of the accused petitioner under section 412 of the Penal Code (6)
The Petition is, accordingly dismissed with the aforesaid modification of the sentence (7)
ADVOCATES
Sarwar Ahmed, Advocate, instructed by Md. Nurul Islam Chowdhury, Advocate-on-Record For the Petitioner. Not represented,……For the Respondent.
JUDGMENT
1. Mohammad Fazlul Karim J:- The accused petitioner seeks leave to appeal against the judgment and order dated 12.4.2004 passed by the High Court Division in Criminal Appeal No. 1605 of 1997 altering the conviction of the accused petitioner under section 412 of the Penal Code and reducing the sentence of imprisonment for a period of 5 years and to pay a fine of TK. 5,000/-, in default, to suffer rigorous imprisonment 6 months more modifying the judgment and order dated 12.8.1997 passed by the Assistant Sessions
Judge, Rajbari in Sessions Case No. 27 of 1996 (arising out of Rajbari P.S. Case No. 3 dated’2.2.1993, G. R. No. 24/2003) convicting the petitioner and 3 others under section 395/397 of the Penal Code and sentencing them to suffer rigorous imprisonment for a period of 10 years and to pay a fine of Tk. 5,000/-, in default, to suffer rigorous imprisonment for a period of 6 months.
2. The prosecution case, in short, is that the informant Md. Fazlur Rahman Mia, son of late Masem Ali Mia, of village Kalichandpur, Police Station and District Rajbari with the
help of Mr. Abdul Hashem Sarder, the Chariman of Alipur Union Parishad No. 4 Rajbari, and Md. Abdul Haque, Sk. Md. Nawab Ali, Md. Habibur Rahman and Md. Afsar Uddin, arrested 3 accused persons (including the petitioner), produced them under arrest before Rajbari Police Station with the help of the police and lodged First Information Report (hereinafter called the FIR) at 11.35 hours on 2.2.1993, stating inter ali, that having done the buying and selling transactions of his grocery in Banibaha Bazar on 1.2.1993 he asked the Bazar Chowikders, Kazi Dil Mohammad, Esharat Bepari and Sher Ali, to keep watch on 13 barrels of oil, being 1Q barrels of Diesel, 2 barrels of Kerosene and 1 barel of Mobil, kept in front of the petitioner’s shop and went home, that at about 4.00 hours Afsar Uddin, President of Bazar Committee accompanied by shop keeper Abdur Rahim Mia informed him that at about 3.00 hours, on teeing up the Chowkiders, his 13 barrels of oil were taken away in a truck, together with the Chowdiders, towards Rajbari, that he rushed to Banibaha Bazar with the said informers, reached Akbar’s shop and learnt upon enquiry that the 13 barrels were taken away by dacoits towards Rajbari, that after sometime the said 3 Chowkikers came on foot from the northern direction, ran to his shop and being interrogated, stated that 8/10 persons came in a truck in Banibaha Bazar from Modhukhali direction at about 3.00 hours, stopped the truck near Bazar Mosque, 4/5 dacoits got down from the truck and asked for the location of the tube-well and when the Chowkiders went close to them they tied them up with rope, held them under threat a of death with arms if they talked, tied up their mouths with chadar and katha and put them on the truck in face down position, that the truck was back geared to the front of informant’s shop loaded with his 13 barrels and proceeded towards Rajbari, that at Mahish bathan turn of the road, the 3 Chowkiders were dropped in tied up condition and the truck Kproceeded towards Rajbari, that the informant and his Behai, Alam with his personal Motor cycle, made search in the Bazars of Rajbari, Goalundo, Kallyanpur and Alladipur and learnt at about 5/5.30 A. M from Laxmikanta Saha that some barrels of oil were kept in the shop of Ali Akbor (petitioner) of Alladipur Bazar last night at about 4.30
A. M that he, together with Asaduzzaman Selim, V. D. P. Leader of Alladipur Bazar, Laxmikanta Sahan, Md. Abdul Haque Sheikh and Md. Nawab Ali,.went to the shop of Ali Akbar, got him up from sleep and on their asking Ali Akbar told that last night at about 4/4.30 A.M . 13 barrels of Diesel, Kerosine and Mobil were brought from Banibaha Bazar in truck No/ Dhaka-Ta-1479 by its Driver Hazan, who said that Achinta of Binodepur had sent those 13 barrels to be kept in his shop and that the barrels were there in the shop, that the informant, along with others, entered into his (Ali Akbar’s) shop, found the barrels and recognized them as his looted ones, that having found the helper of the truck, accused Md. Shahjahan alias Bhutto, sleeping in the shop they raised him from sleep and he being asked, confessed that those barrles were looted by dacoity from Banibaha Bazar and kept in Ali Akbar’s shop, that they found another 27 barrels and some other empty barrels in Ali Akbar’s shop and also found Abul Hossain a close man of Ali Akbar, sleeping in the shop, that on getting information, the local chairman, arrived there and the helper of the truck confessed the guilt in presence of all present, that meanwhile, one dacoit, Hashem son of late Sabder Ali of Jurain, Dhaka came from Faridpur by Bus and arrived at Ali Akbar’s shop for taking the price of the looted goods and they arrested him on suspicion, that his name was found written as Hashem in the booking slip of Hotel Rajmahal of Faridpur for Room No. 20 that the said 3 dacoits, being produced under arrest and interrogated in the police station confessed that 8/9 days back 18 barrles of oil were looted by dacoit from Jessore District and kept in Ali Akbor’s shop, 4/5 days back 10 barrels from Magura side, 8 barrels from Khulna side, 95 bags of fertilizer from Modhukhali were brought by dacoity and kept in Ali Akbar’s shop and those were sold in different shops of Rajbari town through one. Achinta, that helper Shahjahan alias Bhutto confessed that driver Hasan, together with accused Hashem under arrest and 8/10 other dacoits looted 13 barrels from Banibaha Bazar, brought them by Truck to the shop of Ali Akbar and kept them there.
3. After submission of charge sheet, the case, was sent to the court of Sessions Judge, Rajbari. which took cognizance thereof under sections 395/397 of the Penal Code, registered it as Sessions Case No. 27 of 1996 and framed charges on 18.8.1996 under Section 395/397 of the Penal Code against all the 3 accused persons, including the petitioner, as the accused pleaded not guilty and claimed to be tried and where the case was transferred to the Court of Assistant Sessions Judge, Rajbari for trial.
4. Upon trial, the accused were convicted and sentenced as aforesaid wheeupon the petitioner preferred a Criminal Appeal No. 1605 of 1997 ‘n the High Court Division and the latter by judgment and order dated 12.4.2004 altered the conviction under section 412 of the Penal Code and sentenced the petitioner for a period of 5 (five) years and also fine of TK. 5,000/- which was imposed by the Assistant Sessions Judge, Rajbari.
5. Mr. Sarwar Ahmed, the learned Advocate appearing for the petitioner submitted that in
view of the fact that there being no material on record to support the conviction of the accused-petitioner under section 412 of the Penal Code as the accused had no knowledge that the 13 barrels of oil recovered from his custody wre the subject matter of the dacoity
and none of dacoits identified the accused to be in dishonest possession of the recovered 13 ban-els of stolen oil and that the accused-petitioner has been languishing in jail custody for the last 212 years and having been found guilty under section 412 of the Penal Code, ends of justice .would be best served if the conviction is reduced to ‘sentence already served out’ considering the allegation as found against the petitioner and the provision of section 35A of the Code of Criminal Procedure.
6. In view of the materials on record we are inclined to take lenient view about the sentence and are of the view that ends of justice would be best served if the sentence of the accused petitioner is reduced to the period the petitioner was in custody pursuant to the accusation in the case and the time already spent in imprisonment while in custody upon conviction and treat the period of sentence as has ‘already been served out1 and to pay fine of TK. 5,000/-, in default, to suffer rigorous imprisonment for 6 months more maintaining the conviction of the accused petitioner under section 412 of the Penal Code.
7.The Petition is, accordingly dismissed with the aforesaid modification of the sentence.
Source: III ADC (2006) 746