Appellate Division Cases
Ismail and another………………..Appellants (in Crl. Appeal No. 34 of 2001)
Awal @ Md. Abdul Awal………….. Appellant (in Crl. Appeal No. 35 of 2001)
The State …………………………Respondent (in both the cases)
Md. Ruhul Amin J
M.M. Ruhul Amin J
M.A. Aziz J
JUDGEMENT DATE: 16th May 2005
The Penal Code, Sections 34, 148, 302, 326, 448
The law is now settled that mere relationship of the witnesses inter-see or of being related to the deceased does not make them unreliable unless material is brought on record to consider the witnesses of this category is unreliable ……………..(4)
The point involved in the appeal is that whether the High Court Division has committed any error or illegality in dismissing the appellants’ appeals. This division was required to consider whether the conviction and sentence of the appellants as maintained by the High Court Division is legally sustainable in the evidence of P.W.s 9 and 10 as relied upon by the High Court Division. This Division was not required to consider whether the persons whose appeals have been allowed were legally set at liberty ………………………(6)
Criminal Appeal Nos. 34 & 35 of 2001 (From the judgment and Order dated 28th
October, 1997 passed by the High Court Division in Criminal Appeal No. 771 of 1992
and Criminal Appeal No. 818 of 1994)
Mujibur Rahman, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-record…………………….For the Appellants (in both the cases)
B. Hossain, Advocate-on-record ……………..For the Respondent (in both the cases)
1. Md. Ruhul Amin J : These two appeals, by leave, are against the common judgment dated October 28, 1997 of the High Court Division on Criminal Appeal Nos. 818 of 1994. 771 of 1992 and 1175 of 1992 dismissing the Criminal Appeal No. 818 of 1994 filed by the appellant in Criminal Appeal No. 35 of 2001 and that dismissing the Criminal Appeal No. 771 of 1992 so far the same related to appellant in Criminal Appeal No. 34 of 2001. The High Court division by the aforesaid judgment allowed the Criminal Appeal No. 1175 of 1992 filed by the convict Paritosh and that allowed the Criminal Appeal No. 771 of 1992 so far the same related to convicts Raisuddin, Mofiz @ Maikka @ Mofizuddin, Giasuddin @ Gasu and Shahid. The appeals were filed as against the judgment and order dated April 25,1992 of the 2nd Court of Additional Sessions Judge, Mymeshingh in Session Case No. 160 of 1989. In all 12 accused persons were placed on trial to answer the charges under sections 148, 448, 326 and 302 read with section 34 of the Penal Code. The learned Sessions Judge by the aforesaid judgment convicted the accused Shahid, Mofizuddin, Awal, Giasuddin, Dulal, Raisuddin, Habib, Kader, Ramjan Kha, Abdul and Paritosh under sections 302/34, 448 and 148 of the Penal Code and convicted accused Ismail under sections 302/34, 448 and 326 of the Penal Code. Thereupon the learned Sessions Judge sentenced all of them to suffer imprisonment for life and to pay fine of Tk. 5,000/- each, in default, to suffer Rigorous Imprisonment for 1 (one) year.
2. Of the said convicts seven filed appeals before the High Court Division. Convict Awal
filed Criminal Appeal No. 818 of 1994 and convict Paritosh filed Crimianl Appeal No.
1175 of 1992 and the convicts Raisuddin, Mofiz @Maikka @ Mofizuddin, Giasuddin
@ Gasu, Shahid and Ismail filed Criminal Appeal No. 771 of 1992.
3. Prosecution case that was tried, in short, was that on 15.12.1985 some time before dusk
Jobed Ali, a local dafader and his son Moinuddin (P.W.I, the informant) were sitting on a mat in the western bhiti hut of their house and at that time Jayeda (not a witness in the
case) the first wife of Jobed Ali was slicing fish sitting near, that at one stage of slicing the fish P.W.I placed a lighted ‘kupi’ near his mother and at that time accused persons
entered into their house with arms and started assaulting Jobed Ali, that P.W.I tried to resist the accused persons and then accused Dulal hit him, that Majida Khatun, (P.W.9) youngest wife of Jobed Ali came running from the northern bhiti hut and tried to resist the accused persons, that Ismail hit on her head by a ‘dao’ and other accused persons also
assaulted her. that informant’s cousin Abdul Kader, (P.W. 10) was assaulted by the accused persons when he tried to resist them, that thereafter the accused persons left the place of occurrence, that on hearing cries and alarm of the inmates of the house some villagers including the Chairman of the local Union Parishad came to the spot, that after 15 minutes of the incident informant’s father Jobed Ali succumbed to the injuries, that the victim mentioned the names of the accused persons to Abdul Kader.
4. The informant lodged the FIR on 16.12.1985 at 11.30 hours. The police on
completion of investigation submitted charge-sheet against 12 persons under sections 147, 148. 149, 448, 324 and 302 read with section 34 of the Penal Code. In due course records of the case from the Court of the Magistrate were sent to the Court of Sessions Judge. The accused persons were put on trial to answer the charges under sections 148, 448, 326 and 302 read with section 34 of the Penal Code. Prosecution in all examined 12 witnesses including the P.W.I 1, who at the relevant time was the officer-in-charge of Gaffargaon Police Station and recorded the FIR as per verbal statement of the informant at the place of occurrence and forwarded the same to the Police Station and P.W. 12. the Investigating Officer. The learned Sessions Judge on the basis of the evidence on record convicted all the accused persons (in all 12) and sentenced them to imprisonment for life and to a fine. Of the convicts as stated hereinabove 7 filed appeals. The High Court Division allowed the appeal of the 5 convicts and dismissed the appeals of the present appellants. The High Court Division while dismissing the appeal of the present appellants placed reliance on the evidence of P.W.9, the youngest widow of the deceased and P.W. 10 Abdul Kader, a nephew of the deceased. It is seen from the evidence of P.W.I that he also deposed that his father made a dying declaration mentioning the name to his nephew Abdul Kader i.e. P.W. 10. P.W.9 deposed that her husband spoke to her in a low tone and told her that Ismail, Awal, Kader, Dulal, Ramjan and Abdul assaulted him, that she saw Dulal, Kader and Abdul assaulting her hasband. In cross-examination the aforesaid statement of the witness was not challenged. P.W. 10, Abdul Kader stated that his uncle (deceased) told him that Islamil, Shahid, Awal, Kader and Habib assaulted him. The witness also stated that from outside he saw Shahid, Awal, Ismail, Kader and Habib assaulting his uncle by Dagger and ‘Dao’. P.W.I stated that accused persons including Awal and Ismail armed with ‘Chal’, Dagger and Dao attacked his father and assaulted him. It is common in the evidence of P.Ws. 9 and 10 that Ismail and Awal assaulted the victim and that the victim in his dying declaration stated to these witnesses name of
Ismail and Awal. The only criticism against the witnesses i.e. P.Ws.l, 9 and 10 was that
they are related to each other and also closely related to the deceased. The law is now settled that mere relationship of the witnesses inter-see or of being related to the deceased does not make them unreliable unless material is brought on record to consider the witnesses of this category is unreliable. In the instant case on such material has been brought on record to show that the P.ws.l, 9 and 10 and particularly P.Ws.9 and 10 as relied upon by the High Court Division are unreliable.
5. The learned Counsel for the appellant has submitted that immediately after the incident
P.W.2, the local Chairman as well as the relation of the victim came at his house and that
P.W.I stated to him the names of the accused persons other than the names of appellants
and as such the statements of P.Ws.9 and 10 are nothing but embellishment. It may be
mentioned at the relevant time i.e. on December 15, 1985 this P.W.2 was not the
Chairman of the local Union Parishad, but as seen from the evidence of P.W.I, Dr.
Mafizuddin was the chairman of the local Union Parishad at the relevant time. Although
P.W.2 claimed that he went to the place of occurrence at about 8 p.m. and that P.W.I told
him the names of the accused persons other than the appellants but from the evidence of
P.Ws. 1, 3 to 6 and 8 to 10 it is not seen that P.W.2 visited the place of occurrence at 8 p.m. on 5.12.1985. This being the position the contention of the learned Counsel for the appellants that names of the appellants having not been disclosed to the P.W.2 immediately after the incident who went to the place of occurrence the depositions of the witnesses as to involvement of the appellants in the incident causing death of the victim ought not have been made basis by the High Court Division as well as the trial Court in finding them guilty of causing death of the victim and thereupon sentencing them to imprisonment for life is of no merit. It has also been submitted by the learned counsel for the appellants that P.ws. 9 and 10 did not disclose to the Investigating Officer that the deceased in his dying declaration disclosed to them the names of the appellants. From the appellants’ side suggestion was made to the said two witnesses that they did not disclose about the involvement of the appellants and that they did not state to the police that the deceased told them that the appellants assaulted him, but inspite of denial by the P.Ws. it was not put to the Investigating Officer, (P.W. 12) that at the time of examination of the aforesaid two witnesses by him they did not state that deceased told them that appellants assaulted him. In this state of the matter in our view the High Court Division has quite legally placed reliance on the evidence of P.Ws. 9 and 10 in finding the appellants guilty of causing death of the victim. The learned Counsel lastly submitted that High Court Division was in error in not treating the appellants at per with the other accused persons who have been acquitted particularly as to discloser of the names of the accused particularly as to discloser of the names of the accused persons so acquitted as well as the names of the appellants by the deceased to the said witnesses.
6. In the background of the materials on record the submissions so made by the learned
Counsel for the appellants is not legally well founded since as noticed by us hereinbefore
that there are sufficient evidence on record against the appellants warranting their conviction for the commission of the offence they were charged and as such they having been legally convicted and sentenced, they can not claim since the other caused, even if for argument’s sake it is taken they were at per with them, though in fact not, had been acquitted were also entitled to be acquitted. The point involved in the appeal is that whether the High Court Division has committed any error or illegality in dismissing the appellants’ appeals. This division was required to consider whether the conviction and sentence of the appellants as maintained by the High Court Division is legally sustainable in the evidence of P.W.s 9 and 10 as relied upon by the High Court Division. This Division was not required to consider whether the persons whose appeals have been allowed were legally set at liberty. On consideration of the evidence of the witnesses as relied upon by the High Court Division we find that no error or illegality has been committed by the High Court Division in dismissing the appeals of the appellants before us.
7. In view of the discussions made hereinabove we find no merit in these appeals.
8. Accordingly the appeals are dismissed.
Source: IV ADC (2007), 351