Appellate Division Cases
Aynul Sheikh and another ………………Appellants (In Crl.A.No, 42 of 2003)
Jaber Sheikh …………………………..Appellant (In Crl.A.No. 43 of 2003)
The State represented by the Deputy Commissioner, Faridpur ……Respondent
(In both the cases)
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 19th July 2005
Sections 302/34 of the Penal Code
Inconsistency in the evidence the order of conviction under Sections 302/34 of the Penal Code has been illegal. In view of the facts and circumstances this contention cannot be brushed aside altogether………………………..(12)
There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. We are, therefore, of the view that ends of justice would be met if the two appellants are convicted thereunder…………………….. (14)
Criminal Appeal No. 42 and 43 of 2003 (From the judgment and order dated 30.04.2001 passed by the High Court Division in Criminal Appeal No. 2180 of 1997)
Md. Nawab AH, Advocate-on-Record. ……….For the Appellants (In both the cases)
Abdur Rouf, Deputy Attorney General, instructed by Mvi. Md. Wahididlah, Advocateon-
Record ……………….For the Respondent (In both the cases)
1. Amirul Kabir Chowdhury J: Criminal Appeal No. 42 of 2003 is at the instance of
convict appellant Shafiuddin Sheikh against .the judgment and order dated 30.04.2001
passed by the High Court Division in Criminal Appeal No. 2180 of 1997.
2. Criminal Appeal No. 43 of 2003 is at the instance of convict appellant Juber Sheikh
against the aforesaid judgment and order.
3. Both the appeals being heard analogously were disposed of the High Court Division by
same judgment and order. Both the appeals being heard together by us are disposed of by
this Single judgment.
4. The facts revealed in the leave petitions, in short, are that the convict Aynul Sheikh (not appellant before us) started digging a drain through the middle of the land of one Abdul Gafur Sheikh by damaging his onion crops on 28.01.1996 at about 3.30 P.M. and son abdul Gafur Sheikh protested prohibiting Aynul Sheikh not to dig the drain, at this Aynul Sheikh hurriedly went to his house and after 20/25 minutes came back there being armed with spade, lathi and mugur etc. with other accused namely Shamsu Sheikh, Syed
Sheikh, Jamir Sheikh, Saken Sheikh, Mohammad Sheikh, Rabbani Sheikh, Firoz Sheikh and Mosharof Sheikh (since acquitted by the trial court) and Shafiuddin Sheikh and Jaber Sheikh (the two appellants) and entered into the said land and the appellants Shafiuddin Sheikh and Jaber Sheikh caught hold of the hands of Abdul Gafur and then convict Aynul Sheikh dealt a spade blow on the head of Abdul Gafur who fell down on the ground and thereafter other accused persons (since acquitted) dealt lathi and mugur blows
indiscriminately on the person of the victim causing several injuries and the victim was
taken to faridpur Hospital in senseless condition where he succumbed to the injuries on the following morning. Abdul Hamid Matbar P.W.I brother of the deceased lodged First
Information Report with the local police station and after investigation charge sheet was
submitted against the accused Aynul Sheikh, the two appellants and other acquitted
accused. The case being sent for trial 15 witnesses were produced by the prosecution
while the defence did not examine any witness. The defence plea is that of innocence
and implication in the case out of grudge and enmity.
5. The Additional Sessions Judge by judgment and order dated 16.09.1997 convicted the accused Aynul Sheikh and the two appellants under Sections 302/34 of the Penal Code
and sentenced them to imprisonment for life and to pay fine of Tk. 5,000/-, in default, to
suffer rigorous imprisonment for 3(three) years more.
6. All the three convicts unsuccessfully preferred Criminal Appeal No. 2180 of 1997
before the High Court Division. Hence are these appeals. It may be mentioned that at the
time of hearing the Leave Petition, the petition so far as it relates to convict Aynul Sheikh
was not pressed and was thus dismissed.
7. In support of the Appeal Mr. Md. Nawab Ali, learned Advocate-on-Record submits,
inter alia, that there is no cogent evidence against the appellants as to allegation of
catching hold of the hands of the deceased by them and that similar allegations of alleged
abetting the offence being made against other co-accused, since acquitted, the appellants
also standing on the same footing, the order of conviction against them is contrary to evidence and as such the High Court Division committed error in disregarding this aspect of the case. He further submits that there are contradictions in the evidence of witnesses.
8. Lastly he submits that leaving aside of the case of Aynul Sheikh, on the evidence on
record even if admitted for argument’s sake, prosecution failed to prove that the death of
the victim was caused by the two appellants with intention of causing death and as such
the order of conviction against the appellants under Sections 302/34 of the Penal Code is
not sustainable in law.
9. Mr. Abdur Rouf, learned Deputy Attorney General on behalf of the State opposes the
appeals contending, inter alia, that the prosecution has successfully brought home the
charge against the accused Aynul Sheikh and the two appellants and as such there is no
room to hold otherwise.
10. He further submits that evidence of prosecution witness Nos.l, 2 and 3 consistently
proved the charge of murder against the two appellants and co-accused Aynul Sheikh and, therefore, there is no error in the judgments of both the courts below.
11. We have considered the submissions made at the Bar and perused the materials on record. It appears that the prosecution case is mainly built upon evidence of prosecution witness Nos.l, 2 and 3 P.W.I Abdul Hamid Matbar and P.W.2 Abdul Khaleque Matbar the two eye witnesses to the occurrence in their deposition stated that the appellants Shafiuddin Sheikh hit the right eye of the deceased by a mugur lying in his hand but from the evidence of P.W.8 Dr. Rafiqul Islam, it appears that no such injury was found on the person ofdeceased during postmortem examination.
12. It further appears that P.W.3 Satter Matbar claimed to be an eye witness and deposed that the two appellants caught hold of the hands of the deceased while P.W.I Abdul Hamid Matbar and P.W.2 Khaleque Matbar deposed that the two appellants tied the two hands of the deceased. The learned Advocate-on-Record brought this inconsistency to our
notice and submits emphatically that in view of such inconsistency in the evidence the
order of conviction under Sections 302/34 of the Penal Code has been illegal. In view of the facts and circumstances this contention cannot be brushed aside altogether.
13. It appears that besides accused Aynul Sheikh, charges were framed against all other
accused under Sections 302/34 of the Penal Code of whom eight of them have been
acquitted, as noticed earlier. There is admittedly no appeal against the order of their
14. We have considered the evidence on record and in view of the facts and circumstances it appears to us that accused Aynul Sheikh was privy to the offence of murder of the victim Abdul Gafur Sheikh. There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. We are, therefore, of the view that ends of justice would be met if the two appellants are
15. In view of the discussion made above, theappeals are allowed in part. The orders of conviction and sentence are altered. The two appellants namely Shafiuddin Sheikh and
Jaber Sheikh are convicted under Section 304 part 1 of the Penal Code and they are sen
tenced to suffer rigorous imprisonment for 10 (ten) years each and to pay fine of Tk. 5000/ each, in default, to suffer rigorous imprisonment for l(one) year each.
Source: IV ADC (2007), 354