Mr. Justice Syed Muhammad Dastagir Husain
Mr. Justice Zubayer Rahman Chowdhury
Criminal Appeal No. 190 of 2005
Mr. Faisal H. Khan, Advocate for
Mr. Moinuddin, Advocate
….. For the Appellant
Mr. Bashir Ahmed, A.A.G.
…… For the State
Date of Hearing : 24.03.2010
Date of Judgment : 25.03.2010
Zubayer Rahman Chowdhury, J :
This appeal, under section 410 of the Code of Criminal Procedure, is at the instance of appellant Mustaq Ahmed, who was tried in Sessions Case No. 138 of 2003 arising out of Haluaghat Police Station Case No. 2(1) 03, corresponding to G.R. No. 5(2)02 by the learned Additional Sessions Judge, In Charge, First Court, Mymensingh convicting the appellant under section 387 of the Penal Code and sentencing him thereunder to suffer rigorous imprisonment for life.
2. Briefly stated, the prosecution case is that one Roger Austin lodged an FIR on 04.01.2003 with the Haluaghat Police Station, Mymensingh stating, inter alia, that on 02.01.2003, while he was returning to his quarter just after sunset, he was followed by the appellant without his knowledge. When he entered his room and turned on the light, he found the appellant standing in front of him with a dagger in his hand. The appellant demanded Tk. 10,000/- from the informant, who fought with the appellant in order to save his own life. During the struggle, the informant received several cut injuries on his hands and legs and at one stage, the dagger was thrown out of the window. The informant went to his desk, but the appellant picked up a large scissor which was lying there and once again threatened the informant who, out of fear, wrote a cheque for the sum of Tk. 10,000/-. However, he did not put his correct signature so as to make the cheque worthless. The informant then managed to push the appellant out of the quarter.
3. Subsequently, the informant found the dagger under the window and reported the matter to the Thana Duty Officer at 7:30 p.m. on the very same day and he also handed over the dagger to the police at the same time.
4. On 4th of January, 2003 at about 9:00 a.m., the informant delivered a letter to Sonali Bank, Haluaghat Branch, Mymensingh (hereinafter referred to as the Bank) asking the Manager to stop payment against the cheque and the Manager agreed to comply with the request. Some ten minutes later, an officer of the Bank asked the informant to come to the Bank as the appellant had tried to encash the cheque. The police was informed and they took the appellant into custody. Thereafter, the FIR was lodged at2:45 p.m. on the same day.
5. The police investigated into the matter and filed charge sheet on 06.02.2003 against the appellant under sections 385/387 of the Penal Code.
6. The learned Additional Sessions Judge, Mymensingh framed charge against the appellant on 03.05.2003 under sections 385/387 of the Penal Code.
7. At the trial, the prosecution examined eight witnesses, while the defence examined none. The defence case, as it appears from the trend of cross-examination, is one of innocence and false implication.
8. Upon conclusion of recording of evidence, the appellant was examined under section 342 of the Code of Criminal Procedure during which he pleaded his innocence and claimed to be tried in accordance with law.
9. Upon conclusion of trial, the learned Additional Sessions Judge, In Charge, Mymensingh convicted the appellant under section 387 of the Penal Code and sentenced him thereunder to suffer rigorous imprisonment for life.
10. Mr. Faisal H. Khan, the learned Advocate appearing on behalf of the appellant submits at the outset that this is a case of no evidence for the simple reason that not a single prosecution witness supported the prosecution case. On the contrary, during their respective depositions, the prosecution witnesses expressed their ignorance about the incident itself.
11. According to Mr. Khan, even the deposition of PW 1, the informant, also does not support the FIR version in all material particulars; rather, it is full of inconsistencies. Mr. Khan submits that although the informant stated in the FIR that he was threatened by the appellant, first with a dagger and then with a scissor, which prompted him to write the cheque, during his deposition, he was totally silent about being threatened with a scissor. Mr. Khan contends that given that the appellant is alleged to have inflicted blows with a dagger on the hands and legs of the informant, no medical certificate was produced in Court in support of the alleged injuries.
12. Mr. Khan submits that as per the informant’s own statement, the incident took place on 02.01.2.2003 and the police came to the place of occurrence on the very same day at about 7:30 p.m. when the dagger was handed over to them, but the FIR was lodged and the seizure list was prepared two days later. Mr. Khan further submits that although the allegation of extortion centers around the encashment of a cheque, PW 6, an officer of the Bank, deposed otherwise.
13. Lastly, Mr. Khan submits that the learned Additional Sessions Judge failed to apply her mind to the facts of the case and evaluate the evidence on record, which caused a serious miscarriage of justice resulting in the conviction of an innocent person.
14. Mr. Bashir Ahmed, the learned Assistant Attorney General (briefly, AAG) appearing for the State candidly submits that he finds it difficult to support the impugned judgment and order of conviction and sentence. The learned AAG goes on record to submit that some measures are called for against the concerned Judge for such an utterly callous judgment, which indicates total non-application of mind. The learned AAG submits that not only did the learned Judge fail to evaluate the evidence on record, but she also misinterpreted the relevant provisions of law, thereby imposing the maximum punishment on a young man.
15. We do appreciate that the learned DAG, instead of adopting the customary and long standing practice of supporting the prosecution case and the impugned judgment, has taken pains to go through the Paper Book and objectively evaluate the case. This goes to show that he has discharged his duties as an officer of the Court.
16. It is to be borne in mind that the learned DAG and the learned AAG, who appear for the State and the learned Advocates who appear for the appellants, owe their duty first to the Court and then to their respective clients.
17. In order to appreciate the submissions advanced at the Bar, we are now called upon to evaluate the evidence on record.
18. PW 1 Roger Austin, the informant, deposed that on the day of occurrence, while he was returning to his quarter just after sunset, the appellant followed him. When he reached his quarter, which was located on the second floor, he switched on the light and found the appellant, whom he knew from before, standing with a dagger in his hand. The appellant demanded Tk. 10,000/- from him.
19. PW 1 deposed that he tried to grab the dagger and while doing so, he sustained several cut injuries in his hand. Both of them struggled with each other and, at one stage, the dagger was thrown out of the window. PW 1 then told the appellant that he did not have cash money, but he could give a cheque instead and accordingly, he brought out his cheque book and wrote a cheque for Tk. 10,000/-, but he scribbled his signature on the cheque instead of putting his normal signature.
20. PW 1 further deposed that thereafter, he requested the Bank Manager to stop payment against the cheque. When the appellant went to encash the cheque, the Bank Manager took the cheque from him and examined the same and at that point, the appellant took the cheque and tore it. Thereafter, the appellant was taken into custody. PW 1 then went to theThanaand lodged the FIR, which he identified as Exhibit 1 as well as his signature thereon as Exhibit 1(A).
21. PW 1 identified the dagger and the scissor as material Exhibit 1 series as well as the cheque book of Account no. 8111 as material Exhibit 2. He also identified the appellant at the dock.
22. During cross-examination, PW 1 stated that he did not mention the cheque number at the time of filing the FIR. He also stated that the cheque in question and the dagger were both recovered from his possession by the police. He further stated that he gave the dagger to the police on 2nd January, while the scissor and cheque book were handed over on 4th January. PW 1 further stated that he knew the appellant’s family since 1988 as the father of the appellant had worked under him as a day labourer. He further stated that he did not mention the name of any witness in the FIR as there was no other witness apart from the appellant and the informant himself. He admitted that on the day of occurrence, the night guard was on duty. He also stated that the girl’s hostel, boy’s hostel, social development office, priest quarter etc. are located within the compound and he lives on the second floor of the building. PW 1 further stated that the night guard told him that he (night guard) had seen three persons, but he did not see the appellant amongst them.
23. PW 1 denied the defence suggestion that the appellant served under him, but was not paid the money that was due to him for his service. He stated that the appellant went to him atBarisaland he gave him Tk. 600/- as a gift for meeting his expenses fromBarisalto Haluaghat. He further stated that he came to know that the appellant had taken to drugs (heroin). He also stated that in the cheque book in the column of payee, there was no mention of the appellant’s name. He denied the defence suggestion that the appellant had demanded his salary which was due to him, but in order to avoid payment, he was falsely implicated in the case. PW 1 also denied the defence suggestion that the appellant did not attack him and that he had filed a false case.
24. PW 2 Md. Zulfikar Ali is a school teacher. He deposed that he heard later that the appellant had threatened the informant with a dagger and took a cheque from him and the Bank authorities detained him at night.
25. During cross-examination, PW 2 stated that he himself knew nothing about the incident and the informant did not tell him anything about the incident. He admitted that he had served under the informant previously. He stated that he told the Investigating Officer (briefly, I/O) that he knew nothing about the incident. He further stated that the guards were always on duty at the school where the occurrence took place. He could not recollect from whom he had heard about the incident. He also stated that he was not aware of the fact that he had been cited as a witness in the instant case. However, he denied that he did not hear about the matter.
26. PW 3 Sadek Ali deposed that he was on duty at the place of occurrence from morning till 6:00 p.m. in the evening. On completion of his duty, he went home. On the following morning, he heard that the appellant had misbehaved with the informant and had also taken a cheque for Tk. 10,000/- from him, but the appellant was caught at the Bank when he went to encash the cheque.
27. During cross-examination, PW 3 stated that he could not recollect the date of occurrence. He further stated that Alkas Ali came on duty after him. He stated categorically that neither Aklas Ali nor the informant nor any staff of the school told him about the occurrence. PW 3 reiterated that he did not know anything about the occurrence and the I/O did not record his statement. PW 3 categorically stated that he knew the appellant to be a good person.
28. PW 4 Alkas Uddin deposed that he did not have any knowledge about the occurrence. The defence declined to cross-examine him.
29. PW 5 Pronab Kumar Sarker deposed that the informant was known to him. He deposed that the incident took place on 2nd January, but he came to know about it on the following day when he heard that the appellant was putting pressure on the informant for Tk. 10,000/-. He also heard that the appellant had a dagger. PW 5 further deposed that in order to save himself, the informant gave a cheque for Tk. 10,000/-. However, when the appellant went to the Bank on the following day to encash the cheque, the informant disclosed the matter to the Bank and accordingly, the appellant was detained at the Bank. The police came from theThana and showed him a dagger. He identified the seizure list and his signature thereon as Exhibit 2(b).
30. During cross-examination, PW 5 stated that on the following day after the occurrence, the informant disclosed the incident to him at the school field. He further stated that the place of occurrence is surrounded on all four sides by brick wall and there is a guard at the main gate. He also stated that the informant’s residence is close to the place where the guards are on duty, but none of the guards saw the incident.
31. PW 5 further stated that the informant is constantly accompanied by a dog, but at the time of occurrence, no one heard the dog bark. He further stated that the articles were not seized in his presence and the seizure list was not prepared in his presence. He also stated that he could not recollect the items mentioned in the seizure list and he was not aware about the place of recovery of the seized article. He further stated the I/O took his signature on the seizure list two days after the incident.
32. PW 5 further stated that he was an Assistant Teacher of St Andrews Mission High School, of which the informant was the Headmaster. However, he denied the defence suggestion that as he was working under the informant, he had deposed as per tutoring of the informant.
33. PW 6 Samendra Chandra Sarker deposed that at the time of occurrence, which took place on 04.01.2003 at about 19:30 hours, he was posted as an officer at the Haluaghat Branch of Sonali Bank. He deposed that a young man named Mustaque went into the Manager’s room and raised hue and cry and subsequently, the Manager informed the police, who arrived there and took that person into custody. At this point, PW 6 was declared hostile.
34. During cross-examination by the prosecution, PW 6 denied that the informant had sent prior intimation to the Manager that the appellant had forcibly taken a cheque from him. He also denied that the appellant tore the cheque in his presence.
35. During cross-examination by the defence, PW 6 stated that the appellant was not known to him. He categorically stated that he did not see the incident.
36. PW 7 Md. Tazul Islam, Senior Clerk, Sonali Bank was tendered and the defence declined to cross-examine him.
37. PW 8 S.I. Khandaker Zakir Hossain, the SI of Fulpur Thana, deposed that at the time of occurrence, he was posted at Haluaghat Thana. Upon receiving a typed application from the informant on 04.01.2003, he lodged HaluaghatThanaCase No. 2 dated 04.01.2003 under section 385/387 of the Penal Code and filled up the FIR column, which he identified as Exhibit 4 and his signature thereon as Exhibit 4(a).
38. PW 8 further deposed that he took up investigation, visited the place of occurrence and prepared the sketch map and index, which he identified along with his signatures thereon as Exhibits 5, 5(a), 6 and 6(a) respectively. He also deposed that he recorded the statement of witnesses under section 161 of the Code of Criminal Procedure, seized the alamats and prepared the seizure list, which he identified along with his signature as Exhibit 2(c). He further deposed that since the charge against the appellant appeared prima-facie to be true, he filed charge sheet against him on 06.02.2003.
39. During cross-examination, PW 8 stated that there was no mention of the cheque number and the FIR was lodged two days after the occurrence. He categorically stated that no information was given to theThanaabout the incident on the date of occurrence. During investigation, he did not find any details about the cheque in question.
40. PW 8 further stated that the seizure list was prepared two days after the occurrence, but the seized articles were not recovered from the appellant. He denied the defence suggestion that he did not carry out the investigation properly and further denied that since the informant was a foreigner, a false charge sheet was filed in order to please him. He further denied that since some money was due to the appellant from the informant, a false case was instituted. He also denied that the appellant had not threatened the informant or had taken any cheque from him.
41. This is all the evidence that is on record.
42. In the instant appeal, the incident took place on 2nd January, 2003, but the FIR was lodged two days later. The informant stated in the FIR that the appellant had threatened him twice, first with a dagger and then with a scissor. The FIR further discloses that after the dagger was thrown out of the window, the appellant picked up a scissor and threatened the informant and because of such threat, he wrote out a cheque. However, this aspect of the incident, ie., being threatened with a scissor, does not find any place in his deposition as PW 1, thereby casting a serious doubt as to the veracity of the FIR version of the incident.
43. It is also on record that both the dagger and the scissor were not seized from the appellant. PW 1 admitted during his deposition that all the incriminating articles like the dagger, the scissor and the cheque book were handed over to the police by him. This is further corroborated by PW 8, the I/O himself, who stated during his cross-examination :
“Rã ZvwjKv NUbvi 2 w`b ci cÖ¯ÍyZ Kwi| RãK…Z gvjvgvj Avmvgx nB‡Z D×vi nq bvB|”
44. It is also to be noted that the informant stated in the FIR, and we quote :
“I found the dagger below the window and reported the matter to the Thana Duty Officer at7:30 pmon that night, depositing the dagger with him at the same time.”
45. Once again, the aforesaid statement is contradicted by the I/O himself, who stated as under during his cross-examination :
“ NUbvi ZvwiL NUbvi wel‡q _vbv‡Z †Kvb Bbdi‡gkb †`Iqv nq bvB”|
46. There is another striking aspect of the case which the learned Additional Sessions Judge, Mymensingh appears to have completely over-looked. Although the informant disclosed in the FIR that he had suffered serious cut injuries in his hands and legs (¶ZÐwe¶Z nq) which was inflicted by the appellant with the dagger, during his deposition, he stated that such injury was caused only to his hands. Nevertheless, given that the alleged injuries were inflicted by the appellant with a dagger, it would at least require immediate medical attention and stitches, if not hospitalization. Curiously enough, there is no evidence on record to show that the informant received any treatment for such injuries or was attended by a Doctor after the incident nor was any Medical Certificate produced at the trial in support of the alleged injuries. Therefore, the allegation of sustaining injury does not appear to be substantiated by any medical report.
47. It is equally important to note that not a single prosecution witnesses, the informant excepted, observed any injury on the person of the informant. Furthermore, there is no evidence to indicate that blood-stains were found on the dagger, although that would be most likely since, according to the FIR version, the informant sustained cuts in his hands and legs during his struggle with the appellant.
48. According to the sketch map, which was marked as Exhibit 5, the place of occurrence was the informant’s own room which is located on the second floor of a building situated within the walled-up compound of the school having only one gate through which entrance can be made to the said compound.
49. After the appellant had obtained the cheque, the informant stated in the FIR, and we quote :
“I then managed to push Mustak out of the quarters.”
50. We are quite baffled, to say the least, that a person, having gained entry into the compound through a guarded gate, would proceed to the second floor of a building, threaten the informant, first with a dagger and then with a scissor, inflict injuries with the dagger, collect a cheque and depart from the place of occurrence, unseen and unheard.
51. It is apparent from the evidence of both PW 2 and PW 5 that a guard is on duty at the gate. Strangely enough, PW 4, who was the guard at the gate at the time of occurrence, neither saw the incident nor the appellant at the place of occurrence during the relevant time. The aforesaid fact is corroborated by PW 5, a teacher of the School, who stated that none of the guards saw the incident.
52. The informant’s version of the incident is that on the day in question, the appellant followed him right upto his room beyond his knowledge where the alleged attack and extortion took place. In our country, cases of extortion are taking place almost every single day without exception and in almost every case, it is cash money which is taken away from the victims. However, the incident in question is rather unique in that the extortion money was taken through a cheque and that also in the evening on a Thursday, with the Bank being closed on the following day. The story does not end there. The appellant, having extorted the cheque, would then merrily proceed to the Bank on the following Saturday and produce the same at the Bank for encashment. It is at that juncture that the appellant is apprehended by the police from the Bank along with the cheque.
53. Although the informant disclosed in the FIR that after issuing the cheque under threat of the appellant, he requested the Bank Manager to stop payment of the cheque, the officer of the Bank, who deposed as PW 6, categorically denied during his cross-examination that the appellant had informed them about issuing any cheque to the appellant under duress.
54. We have also noticed that the prosecution witnesses, namely PW 2, who was a school teacher, PW 3 and PW 4, the guards of the school and PW 5, another school teacher, deposed that they neither saw the incident nor knew anything about it, but they heard about the incident on the following day.
55. The informant, who deposed as PW 1, himself stated in his cross-examination :
“On the date of occurrence, the night guard was on duty. In the compound there is girl’s Hostel, boys Hostel, social development office guest quarter etc. I live in 2nd floor of the building. Night guard told me that there were three persons seen by him but he did not see accused Mustaq”.
56. From the cross-examination of the informant himself, it is therefore evident that even the guard, who was on duty at the gate during the relevant time, did not see the appellant at the place of occurrence on the night in question.
57. Admittedly, in the instant case, there is no eye-witness except PW 1, the informant himself, but his own deposition does not support the FIR version of the incident in all material particulars ; rather, there are some serious omissions and contradictions. The other prosecution witnesses, namely PW 2, 3, 4 and 5, are all hearsay witnesses and their account of the incident does not support the FIR story as well.
58. Having dealt with the factual aspect of the appeal, we propose to examine its legal aspect.
59. The appellant was charged under sections 385 and 387 of the Penal Code and he was convicted and sentenced by the learned Additional District Judge, In-charge, Mymensingh under section 387 of the Penal Code.
60. For our better and proper understanding, let us now refer to the aforesaid two sections.
61. Section 385 of the Penal Code reads as under :
“385. Putting person in fear of injury in order to commit extortion- Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear of any injury, shall be punished with imprisonment of either description for a term which may extend to fourteen years and shall not be less than five years or with fine or with both.”
62. Section 387 of the Penal Code reads as under :
“387. Putting person in fear of death or of grievous hurt, in order to commit extortion- Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to for life and shall not be less than seven years and shall also be liable to fine.”
63. It is to be noted that both section 385 and section 387 begins with the words “Whoever, in order to the committing of extortion …..”. On a careful reading, it is apparent that the application of the sections are confined to cases of extortion which remain at the stage of threat and, therefore, do not apply to cases where the act of extortion has already taken place. However, once the offence of extortion is committed, section 384 and section 385 of the Penal Code are attracted, which prescribes a maximum punishment of 3 years imprisonment.
64. Section 383 of the Penal Code reads as under :
“383. Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to give donation or subscription of any kind or to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits “Extortion.”
65. Section 384 of the Penal Code reads as under :
“384. Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
66. It is apparent from the language that the aforesaid two sections apply to cases where the act of extortion has already taken place.
67. In other words, the application of sections 386 and 387 of the Penal Code are confined to cases which remain only upto the stage of ‘threat’, but once the act of extortion is actually committed, sections 383 and 384 of the Penal Code come into play.
68. In the celebrated book entitled ‘The Indian Penal Code’ by Ratanlal & Dhirajlal (31st Enlarged Edition, 2007 at page 2043), it has been observed :
Inducing any person by putting him to fear of an injury to sign and deliver paper which may be converted to a valuable security amounts to an offence defined in Section 383 and punishable under Section 384, I.P.C.
69. In the instant case, the appellant threatened the informant, first with a dagger and then with a scissor, thereby putting him in fear of imminent danger and thereafter, he obtained the cheque. It is immaterial that the said cheque could not be encashed. As soon as the appellant had come into possession of the cheque, the offence of extortion stood committed.
70. To quote from the impugned judgement itself :
“ev`x wbR Rvbgvj i¶v‡_© Avmvgx †gv¯—v‡Ki mwnZ a¯—vaw¯— Kivq Dnv‡Z ev`xi nvZ Ges cv ¶Z we¶Z nq, GK chv©‡q †WMviwU Rvbvjv w`qv bx‡P cwoqv hvq| cieZx©‡Z ev`x‡K Avmvgx †gv¯—vK eo GKwU KvuwP w`qv cybivq Ly‡bi ûgwK w`qv Pvu`v `vex K‡i Ges ev`x ZLb eva¨ nBqv †gv¯—vK‡K GKwU †PK wjwLqv †`b |”
71. We have observed, albeit with some astonishment, that based on such flimsy evidence noted above, as well as taking a grossly misconceived and erroneous view of the relevant provisions of law, the learned Additional Judge, In-charge, Mymensingh not only found the appellant guilty, but also proceeded to impose the maximum sentence of imprisonment for life upon him. As a consequence of such pronouncement, a young man, aged about 25 years, has remained incarcerated for almost seven and half calendar years.
72. A judicial officer, and that too of the rank of an Additional Sessions Judge, is required to evaluate the evidence on record and come to a proper finding in accordance with law and thereafter impose a sentence which is commensurate with the gravity of the offence with which the accused stands charged.
73. We are constrained to observe that in the instant case, there was gross misreading of evidence and misinterpretation of law, which leads to the inescapable conclusion that there was total non-application of mind on the part of the learned Judge. This is not only unfortunate, but regrettable too.
74. Be that as it may, having considered the factual aspect of the instant appeal and having regard to the relevant provisions of law, we are of the view that the prosecution has hopelessly failed to establish the charge levelled against the appellant and consequently, the impugned judgment and order of conviction and sentence is liable to be set aside.
75. Accordingly, Criminal Appeal No. 190 of 2005 stands allowed.
76. The judgement and order of conviction and sentence of the appellant Mustaq Ahmed passed in Sessions Case No. 138 of 2003 by the learned Additional Sessions Judge, In-charge, First Court, Mymensingh convicting the appellant under section 387 of the Penal Code and sentencing him thereunder to suffer imprisonment for life, is hereby set aside.
77. Let the appellant Mustaq Ahmed, son of Liakot Ali, Biroidakoni, Haluaghat, District- Mymensingh be released forthwith, if not wanted any connection with any other case.
78. We hereby direct the Ministry of Law, Justice and Parliamentary Affairs, Government of Bangladesh, Secretariat,Dhakato take appropriate measures in accordance with law for withdrawal of the Sessions power of the Judge in question, namely Jesmine Anwar, if the concerned Judge is still in service.
79. Let a copy of the order be sent to the Ministry of Law, Justice and Parliament Affairs, Government of Bangladesh and the Registrar, Supreme Court of Bangladesh for information and immediate action.
80. Let a copy of this judgement be retained in the dossier of the concerned Judge with particular reference thereof in her Service Book.
The office is directed to communicate the order and send down the lower Court records at once.
Syed Muhammad Dastagir Husain, J :