Appellate Division Cases
(Criminal)
PARTIES
Farukur Rahman @ Farook and Sajjad Shaheen @ Prince ……….…..Appellant
-Vs-
The State…………………………………………………………………Respondent
JUDGES
K. M. Hasan C J
Mohammad Fazlul Karim, J
Mudassir Husain J
Date of Judgment
12th August 2003
The Penal Code (XLV of 1860), Section 302/149. Admissible of dying declaration.
P. O and manner of occurrence in court one year three months after a complete departure was introduced from the case in first information report dying declaration and charge sheet the courts below ought to have disbelieved the prosecution case and acquitted the accused appellant due to blatant and a total change of P. O and manner of occurrence which are far flung and irreconcilable and the change is stock lock and barrel (6)
ADVOCATES
Mujubur Rahman, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-Record For the Appellants.Borhanuddin, Deputy Attorney General instructed by Mrs. Sufia Khatun, Advocateon-Record For the Respondent.Borhanuddin, Deputy Attorney General, instructed by Md. Ataur Rahman Khan, Advocate-on-Record For the Respondents (In Crl. A. No. 1516/2001)
JUDGMENT
1.Syed J. R. Mudassir Husain J:Criminal appeal Nos. 14,15 and 16 of 2001 has been filed respectively by convict appellant Farukur Rahman @ Farook, Sazzad Shaheen @ Prince, Mi raj Hossain against the judgment and order dated 9th December of 1998 passed by a Division Bench of the High Court Division in Death Reference No. 22 of 1994 heard analogously with Criminal Appeal Nos. 2218, 2286, 2446 and 2532 of 1994 since a common question of law upon similar facts arose between the same parties.
2. The short facts, leading to this petition, are that the trial Court by judgment dated 29.10.1994 passed in Sessions Case No. 82 of 1992 found said three appellants guilty of the charge under Section 302/149 of the Penal Code and sentenced appellant Farukur Rahman @ Farook to death and the two other appellants Sajjad Shaheen @ Prince and Miraj Hossain to imprisonment for life and all three of them were ordered to pay a fine of Tk. 2,000/- each. The record was sent to the High Court Division for confirmation of the sentence of death of petitioner Farukur Rahman @ Farook. The High Court Division then by judgment dated 8.12.1998 and 9.12.1998 rejected the reference and also dismissed the appeals with modification in sentence. The convict petitioner Farukur Rahman @ Farook was sentenced to imprisonment for life but the imposition of fine of Tk. 2,000/- passed by
the trial court was maintained and in default of payment of fine there was a direction to
suffer imprisonment for two months more. The appeal preferred by convict Sajjad Shaheen @ Prince, Miraj Hossain have been dismissed and their conviction and sentence upheld.
3. The short facts, leading to these petitions are that on 17.10.1991 in between 5.30 to 6.00 a.m. while informants brother Hafez Shaikh Md. Abdul Wahed after saying his “Fazar” prayer in the Mosque was returning home and reached in front of their house then these three petitioners along with others being armed with Pipe Gun, Ram-Dao, Bomb. Hockey Stick etc chased him and blasted bombs and he thereupon entered his house and shouted for help. Petitioners and others entered into that house and chased the informants brother from Abu Khan Lane to Haji Mohsin Road. At that time the informant and his brothers P.Ws. 2 and 3 on hearing alarm rushed for the rescue of their brother Hate Shaikh Md. Abdul Wahed and when they reached at Haji Mohsin Road accused persons threw Bombs towards them. Said hafcz Shaikh Md. Abdul Wahed had no other alternative but to enter in House No. 15. Hazi Mohsin Road where the accused persons also chased him. There convict petitioner Farukur Rahman @ Farook fired at llalcj Shaikh Md. Abdul Wahed with a pipe Gun who fill down on the ground. Thereafter, accused persons fled away scaling wall. The injured person was taken to City Nursing Home and then to Khulna Sadar Hospital. While they were going to Khulna Sadar Hospital again they were attacked by the accused persons with Ramdao and there the informants younger brother took both the injured . The informant and his brother took both the injured to Khulna Sadar Hospital and thereafter, at 9.00 a.m the informant lodged the first information report.
4. The police upon investigation submitted charge sheet against the accused petitioners and other s under section 302/149 Penal Code. These appellants along with were charged under Section 304/149 Penal Code and ultimately on taking evidence the trial court convicted and sentenced the appellants as aforesaid. Then the case record was sent to the High Court Division for confirmation of the sentence of death and these petitioners preferred separate appeals and the High Court Division rejected the death reference but converted the sentence to imprisonment for life against the appellant Farook but confirmed the sentence of imprisonment for life awarded against the petitioners Sajjad Shaheen @ Prince and the Mi raj Hosain.
5. Mr. Mujibur Rahman, learned Senior Counsel, appearing for all appellants, having place before us the judgment of the trial court as well as the impugned judgment of the High Court Division, submitted that the Courts below tailed to asses the evidence of the prosecution case in its true perspective and as such there has been gross failure of justice because of the fact the impugned judgment going against the evidence on record which has seriously pre|udiced the defendant. In elaborating the above submission, the learned Counsel pointed out that prosecution could not prove its case in respect of the time, place and manner of occurrence, rather, it was disproved by prosecution evidence itself in as much as a written F.I.R dated 17.10.1991 was lodged by the informant P.W. 1 on the date of occurrence (17.10.1991) in which the informant (Abu Nairn) brother the deceased Sheikh Md. Abdul Wahed having pcrformed his Fazar prayer in a local Mosque, came back in front of his house 101/1, Hazi Mohsin Road Abu Khan Lane, the accused having been armed with deadly weapons attacked his brother (the deceased) who out of fear entered his house when the informant and his two other brothers P.W. 3 and 3 as usual wakcup from sleep and no sooner they had come in front of the house, the accused started beating them indiscriminately and blasted hand bombs to terrorize them when the accused Farook shot at him (deceased) with pipegun which hit him in the abdomen and his intestines came out when P.W. I and his two other brothers,P.Ws. 2 and 3 took him straight to Hospital. Khulna from there (101/1) Haji Mohsin Road. Abu Khan Lane ( the house of the decease), in to her words, according to F.I.R. occurrence took place within the house of the deceased, the alleged dying statement of deceased was recorded on the same date (17.10.1991) (Hxt. 4) in which his house 101/1, Haji Mohsin Road. Abu Khan Lane has been also specified as the P.O. by the deceased himself and having examined the witnesses U/S 161 Cr. P.C. on investigation P.W. 10 the Investigation Officer submitted charge sheet on 22.01.1992 m which alsoV.O. has been specified and declared to be the said house No. 101/1 and no other place. So in all these documents, the first information report dying statement and the charge sheet the P.O. and manner of occurrence are within the said house of the deceased and no where else but the prosecution shifted the P.O. and changed the manner of occurrence drastically with a total departure from the first information report and the said earliest documents but while P.W. 1 deposed in court long 1 year 3 months after introduced absolutely a new story that the accused chased the victim from the front of his house at 101 Haji Mohsin Raod, Abu Khan Lane and led him to up to house No. 15 ol’ Haji Mohsin Road when his brother the
deceased having found no other alternative entered in the house NO. 15 through an open
iron gale but the accused still then chased his brother further and accused Faruk fired at him in an open place between Houses No. 15 and 16 with a pipe gun and his brother fell down there and his intestines came out when the accused fled away crossing over the wall.
6. He further pointed out that the house Nos. 15 and 16 are on the eastern side of Haji Mohsin Road shown and marked as (Ka) in Exhibit-6 at a distance of almost 1 mile from mile from house No. 101/1, the residence of deceased, P. Ws 1,2 and 3 his brothers whose house is on the western side of Haji Hohsin Road, regard being had to the further facts that in the first information report, P.W 1 did not state that the deceased was chased by the accused from his house (101/1) Haji Mohasin Road, Abu Khan Lane) and led him to house No. 15-16 of Haji Mohsin Road or he stated in first information report that after the victim entered in his house he was again chased and led upto house No. 15 and 16 of Haji Mohsin Road where the accused threw bombs towards them nor it was stated in the first information report that his brother (deceased) having found no other alternative entered into house No. 15 through an opened iron gate nor he stated in the first information report that while his brother reached in an open place of that house No. 15 accused F:arook fired at him with Pipe gun and his brother fell down there, nor P. W 1 stated in first information report that the accused fled away crossing over the wall of that house, in other words the P. O and manner of occurrence in court one year three months after a complete departure was introduced from the case in first information report dying declaration and charge sheet the courts below ought to have disbelieved the prosecution case and acquitted the accused appellant due to blatant and a total change of P. O and manner of occurrence which are far flung and irreconcilable and the change is stock lock and barrel.
7. Mr. Mojubur Rahman, further pointed out, that according to P. W 10 (Investigating Officer), P. W. 7 Dr. Asadul Iluq is the recorder of the dying declaration of the victim Abdul Wahed (Iixt. 4) because of precarious condition of the victim, a Magistrate could not be called, but (P. W. 10) the investigating officer contradicted himself stating that he himself recorded the statement and Dr. Asadul Huq ( P. W. 7) was mere a witness and not the recorder of the dying statement, P.W. 7 the doctor in his deposition that the dying statement was not written by him at all and he simply put his signature being requested by P. W. 10 there is no mention of place and time as to where and when it was recorded. P. W. 7 is not also a witness since he P. W 7 did not even hear as to what the victim stated nor he heard of the name of any accused from the mouth of the victim in the backdrop of availability of good number of doctors ; F. C. P. S. M. B. B. S and others including nurses and assistants in Sadar Hospital, Khulna the recording of the dying statement by a Police Office who is no other than the investigating officer of the case for the prosecution amounts to violation of the very spirit of impartiality and authenticity of dying statement and as such the dying statement is inadmissible in evidence apart form being devoid of evidentiary value, so the order of conviction based on such a fabricated dying statement by the investigating officer is illegal, contradictory inherently defective and unreliable.
8. Mr. Mojibor Rahman argued that the trial Court erred in law in considering the so called dying declaration recorded by the investigating officer in presence of the doctor Md. Asadu Hoque who attended the deceased Abdul Wahcd while he was admitted in Khulna Sadar Hospital for treatment without considering its admissibility or genuineness, as such the impugned order is bad in law and liable to be set aside.
9. Mr. Rahman further argued, that the learned trial court erred in law not examining the accused appellants properly under section 32 of the Code ol~ Criminal Procedure as because the learned trial court put omnibus questions to the accused appellants without drawing the attention to the so called dying declarations allegedly made to the investigating officer and as such the impugned order of conviction based on the so called dying declaration is illegal and as such it is liable to be set aside. The High Court Division erred in law in relying upon the only evidence of interested witnesses in this case. Moreoer, the so-called dying declaration was not recorded in accordance with the provisions of the Evidence Act and the High Court Division illegally attached much importance to the said dying declaration and as such there has been a gross failure o( justice in maintaining the order of conviction.
10. The facts as revealed in evidence go to show that there was a rioting in between two rival groups of people and in that noting the decased got a gun shot injury or injury by some other sharp cutting weapon, etc. It appears that the inormant has got enmity with accused persons, falsely implicated them in this case with a malafidc intention to feed fat their personal grudge, the informant party filed the case against the accused appellants as such the impugned order of conviction is bad in law and liable to be set aside. He further submits that the High Court Division erred in law in relying upon the only evidence of interested witnesses in this case. Moreover the dying declaration was not recorded in accordance with the provisions of the Evidence Act and the High Court Division illegally attached much importance to the said dying declaration as such there has been a gross failure of justice in maintaining the order of conviction.
11. In view of the above submission made by the learned Advocate and in the facts and circumstance of the case, we are of the view that the learned Judges of the High Court Division misdirected themselves in not considering the case, whereby the learned Judges of the High Court Division not only failed to apply their judicial mind but also caused serious prejudice to the appellants before us. In the aforesaid premises, we are of the view that the appellants are entitled of get benefit of doubt. As a result, all the appeals arc allowed.
Source : III ADC, (2006) 411.