Appellate Division Cases
(Criminal)
PARTIES
Khandker Zillul Bari ………………………Appellant. (in Crl.A. No.52/07)
Nasiruddin Jamal ………………………Appellant. (in Crl.A. No.53/07)
-Vs-
The State. …………… Respondent (in both the appeals)
JUSTICES
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Hassan Ameen J
Md. Abdul Matin J
Judgment Dated: 31st January 2008
The Penal Code, Section 201/ 302/307/34
The Code of Criminal Procedure, Section 417A,423
The Evidence Act, Section 105, 106
Safder Ali Vs. The Crown 5 DLR(FC)64
Section 302/34 of the Penal Code for committing murder of one Faujia Rahman Chapa (25) and also under Section 201/34 for causing disappearance of evidence of the murder and further under Section 307/34 of the Penal Code for attempting to cause murder of Shakkhar (2) son of the victim Chapa in furtherance of their common intention. …………..(3)
The petitioners were convicted under Section 201 of the Penal Code and were sentenced to suffer rigorous imprisonment for 3 years by the trial Court and the Government did not file any appeal for enhancement of the said sentence before the High Court Division and as such, enhancement of sentence to 7(seven) years by this Court without any notice to petitioners is not sustainable and as such, impugned judgment and order needs to be reviewed………………… (7)
It is to be kept in mind that this Court though sitting on appeal over the judgment and order of acquittal passed by the High Court Division but unlike subordinate Courts even the High Court Division this Court has been given a special power to do complete justice under Article 104 of the Constitution inasmuch as this Court has been armed with the power of reviewing its own judgment under Article 105 of the Constitution and the provision of Article 105 should not be discussed in isolation which should be read with the provision of Article 104 of the Constitution to act towards achieving complete justice as has been held in the case of Mahbubur Rahman and others vs Mukibur Rahman and others reported in 1984 BLD (AD) 175, as the word ‘complete justice’ mentioned in Article 104 has got great significance and importance and accordingly this Court has the power of reviewing its judgment acting even sou motu to do complete justice while passing the judgment. This Court in the light of provisions of Articles 104 and 105 of the
Constitution has ensured justice fully while disposing of the matter on merit setting aside the order of acquittal and passing an order of conviction and sentence. Furthermore, the exclusive powers of the Appellate Division under Article 104 and 105 of the Constitution apply as special and extraordinary jurisdiction to avoid miscarriage of justice by establishing complete justice and with that view Appellate Division is the only Court and no other Court beyond this Court has got such jurisdiction………….. …(16)
In this case the principal accused having been found guilty of offence under Section 302/34 of the Penal Code which is punishable with death or imprisonment for life and the substantive sentence being punishment to death but under extenuating circumstance could be punished with imprisonment for life, in my view, the accused appellant are liable to be punished with legal sentence with imprisonment of either descriptions which may extend 7 years and also to fine because the appellants were found guilty under Section 201/34 of the Penal Code against the conviction principal accused and sentenced under Section 302 of the Penal Code providing that the offence of that the offence of murder shall be punishable with death or imprisonment for life and also be liable to fine. Since punishment with death i.e. the substantive sentence was for murder but considering extenuating circumstance it could be reduced to imprisonment for life, in that view of the matter the principal accused in the instant case has been convicted under Section 302 of the Penal Code for commission of murder of the victim. Accordingly, my considered view is that the appellants having been found guilty under Section 201/34 are liable to be
sentenced for a term which was of 7 years and also to a fine of TK.10,000.00 in default to suffer rigorous imprisonment for 6 months more…………… (19)
Unlike in an appeal or revision before the High Court Division under sections 417A, 423 or 439 of the Code of Criminal Procedure, there is no express provision of law requiring this court (Appellate Division) to issue prior notice calling upon the convict to show cause against enhancement of his sentence. But it cannot be disputed that it is a rule of natural justice that no one should be dealt with to his prejudice or deprived of his liberty without giving him an opportunity of being heard and making his defence. In that view of the matter, when a statute gives a right of appeal it should be understood as silently implying, when it does not expressly provide, that the appellant shall have the right of being heard before his sentence is enhanced ………………(38)
Normally Appellate Division does not re-appraise the evidence unless the findings are perverse or vitiated by error of law or there has been substantial defect in the appraisal of the evidence leading to miscarriage or failure of justice. Where on the facts proved by evidence two reasonable views can be taken this court will not interfere. This court will not interfere merely because it would take a different view on the evidence. Further this court would not also interfere with the legal sentence passed by the trial court or the High Court Division unless it is shown that there is an illegality in it or it is unduly lenient and the discretion in passing the sentence has not been judicially exercised. …………(39)
Article 105 of the Constitution read with review rules as per Supreme Court of Bangladesh, Appellate Division Rules, 1988 in Order XXVI Rule I interference can be made only on the ground of an error apparent on the face of the record. The scope of interference is very limited. Nonetheless since in the instant case the error is apparent on the face of the record I am not inclined to limit the relief to reduction of sentence only ………………..(50)
The responsibility of a husband to explain the cause of death of his wife living in the same bedroom cannot be equated with the responsibility of other inmates living in different rooms of a big building. In this case husband is not the accused and was living away from the scene of occurrence and the victim wife was living in her bedroom with her minor son. The defence plea under Section 105 of the Evidence Act or a special plea under Section 106 of the Evidence Act, even if, not proved does not absolve the prosecution of the duty to prove the present case beyond reasonable doubt. Reference may be made of the case of Safder Ali Vs. The Crown 5 DLR(FC) 64 ………..(53)
These appeals are allowed by majority judgment. The period of sentence is reduced to 3(three) years from 7(seven) years. The appellants are directed to surrender to serve out the sentence, if not already served out …………….(55)
Khondker Mahbub Hossain, Senior Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record………………….. For the Appellant (in Crl. A. No.52/07.)
Anisul Huq, learned Advocate, instructed by Syed Mahbubur Rahman, Advocate
on-Record ………………..For the Appellant (in Cnl.A.No.53/07)
Abu Bakkar Siddique, Deputy Attorney General, instructed by B. Hossain, Advocate-on-Record ……………For the Respondent (in both the cases)
Criminal Appeal Nos.52 And 53 of 2007
(From the judgment and order dated the 2nd May, 2005 passed by the Appellate Division
in Criminal Appeal Nos.12 and 13 of 1998).
JUDGMENT
Md. Ruhul Amin CJ: I have gone through the judgments proposed to be delivered by my brothers Mohammad Fazlul Karim, J, Md. Joynul Abedin, J and Md. Abdul Matin, J. I agree with the judgment delivered by my brother Md. Joynul Abedin, J.
2. Mohammad Fazlul Karim J: These two Appeals, by leave upon a petition for review, are directed against the judgment and order dated 02.05.2005 passed by this Division in Criminal Appeal Nos.12 of 1998 and 13 of 1998 allowing the Criminal Appeals convicting the petitioners under Section 201/34 of the Penal Code and sentencing him to suffer rigorous imprisonment for 7 years and to pay a fine of TK. 10,000.00 in default to suffer rigorous imprisonment for 6 (six) months more and thereby set aside the order of
acquittal by the judgment and order dated 09.04.1996 passed by the High Court Division in Criminal Appeal No. 192 of 1994 and Government Appeal No.25 of 1995.
3. The accused-appellants were prosecuted in Sessions Case No.38 of 1990 in the Court of Sessions Judge, Barisal. They were charged under Section 302/34 of the Penal Code for committing murder of one Faujia Rahman Chapa (25) and also under Section 201/34 for causing disappearance of evidence of the murder and further under Section 307/34 of the Penal Code for attempting to cause murder of Shakkhar (2) son of the victim Chapa in
furtherance of their common intention. The deceased Chapa was the daughter-inlaw of one Khalilur Rahman, a rich businessman of Barisal. He has several sons and daughters living in his house at Falorbari road, Barisal. Shahidul Alam, husband of the deceased Chapa and respondents Zahirul Alam Kamal and Nasiruddin Jamal are among the sons of
Khalilur Rahman and Jesmin Ara is his daughter. Farida Jesmin and Afroza Begum Bizlee are the two wives of the two sons of Khalilur Rahman i.e. his daughters-in-law. Respondent Khondker Zillul Bari is the son-in-law of Khalilur Rahman and husband of Jesmin Ara.
4. The occurrence took place on the night following 18.10.1989 at the aforesaid house of Khalilur Rahman. At the time of occurrence Khalilur Rahman, his wife and three sons including Shahidul Alam, husband of deceased Chapa, were away to Calcutta in connection with the treatment of Khalilur Rahman who was a heart patient. On the morning of 19.10.1989 deceased Chapa was found lying dead with injuries. She was sleeping in a first floor bedroom and the respondents lived on the first floor and on the ground floor the servants and others were living. It reveals from the evidence that on the
morning of 19.10.1989 at about 10:12 A.M. there was a row in front of the house of Khalilur Rahman that an accident had taken place inside the house due to electrocution and the officer-in-charge of the Kotwali Police Station receiving the information over telephone that a daughter-inlaw died in the house, went to the said house and was told that the daughter inlaw Chapa, who was deed has been taken to the hospital. He then went to the hospital and found there some members of the house of Khalilur Rahman and asked them to lodge Ejahar and left a police officer there to make an inquest and he received an Ejahar at 1:00 PM through an Advocate which was signed by the respondent
Nasiruddin Jamal. Investigation was started. After a few days the investigation was taken over by PW. 1 Bimal Chandra Das, an officer of CID. During investigation he collected materials on the basis of which he came to the opinion that the respondents along with other co-accused were responsible for causing the murder of Chapa. He accordingly submitted final report (true) in respect of the Ejahar filed by Nasiruddin Jamal and suo motu a first information report was lodged by him on 27.03.1990 and after investigation he submitted charge sheet against the respondents and acquitted accused under
Sections 302/307/201/34 of the Penal Code. During trial 22 witnesses were examined by the prosecution PW. Bimal Kumar Das being the informant as well as investigating officer was examined again as PW.23. The husband of the deceased was examined as a Court witness.
5. The defence case as appeared from the trend of cross-examination was that deceased Chapa was injured by some miscreants from outside the window while she was sleeping in the night before and the miscreants had come to take away the ornaments from her person and that the respondents have been falsely implicated in the case at the instance of interested business rivals.
6. The Sessions Judge after consideration of the evinc e on record convicted the respondents of the charges under Sections 302/34 of the Penal Code and sentenced
each of them to imprisonment for life and to pay a fine of TK. 10,000.00 each, in default, to suffer rigorous imprisonment for one year more and also convicted under Section 201/34 of the Penal Code and sentenced them to suffer rigorous imprisonment for three years and to pay fine of TK.5,000.00 each in default to suffer rigorous imprisonment for six months more. The three other female accused were acquitted. The respondents preferred Criminal Appeal No. 193 of 1994 (leading to rise criminal appeal No. 12 of 1998) and Criminal Appeal No. 192 of 1994 (leading to rise criminal appeal No. 13 of 1998) before the High Court Division. The aforesaid appeals were allowed setting
aside the conviction and sentence of the accused appellants by judgment and order dated 02.05.2005 substantive appeal arose out of an order in Criminal Appeal No. 12 allowing the same under Section 201 Penal Code and sentencing the appellant to suffer rigorous imprisonment for 7 years and to pay a fine of TK. 10,000.00 each.
7. Leave was granted to consider the submission of Khondker Mahbub Hossain, learned Counsel, appearing for the petitioners, inter-alia, that the petitioners were convicted under Section 201 of the Penal Code and were sentenced to suffer rigorous imprisonment for 3 years by the trial Court and the Government did not file any appeal for enhancement of the said sentence before the High Court Division and as such, enhancement of sentence to
7(seven) years by this Court without any notice to petitioners is not sustainable and as such, impugned judgment and order needs to be reviewed.
8. Mr. Khondker Mahbub Hossain, learned Counsel, appearing for the appellant submitted that the appellants were convicted by the High Court Division under Section 201 of the Penal Code and sentenced them to suffer rigorous imprisonment for 3 years by the trial Court and the Government did not file any appeal for enhancement of the said sentence before the High Court Division in view of this fact that enhancement of sentence of 7 (seven) years from that of 3(three) years passed by the trial Court under Section
201 of the Penal Code by the appellate Division without any notice to appellants has caused serious prejudice to the appellants.
9. Mr. Abu Bakkar Siddique, learned Advocate, appearing for the respondent submitted that the appellate Division awarded the sentence against the appellants as provided under the law having considered all evidence on record while disposing of the appeal against acquittal passed by the High Court Division and as this Court is competent to award any legal sentence on consideration of all evidence on record for ends of justice.
10. The facts leading to the decision of conviction of the accused petitioner had not been disputed at all but the points of difference is regarding the sentence of the accused appellants namely, Khondaker Zillul Bari and Nasiruddin Jamal who were convicted under Section 201/34 of the Penal Code and sentenced to suffer rigorous imprisonment for 3 (three) years and to pay a fine of TK.5,000.00 each, in default to suffer for 6(six) months more while convicting them under Section 302/34 ol the Penal Code for an offence of murder to suffer imprisonment for life. But the High Court Division acquitted the accused but this Court while setting aside the said judgment and order of acquittal
found the accused-appellants guilty under Section 201/34 and sentenced each of them to suffer rigorous imprisonment for 7 years and a fine of TK. 10,000.00 in default to suffer rigorous imprisonment for 6 months more. The learned Counsel however, took the exception submitting that the Court allegedly passed a greater sentence without issuing any Rule of; enhancement from three years to seven years and a fine of TK.500.00 from
TK. 10,000.00 in default to suffer rigorous imprisonment for 6 months more.
11. The principal accused were found guilty of the offence under Section 302/34 of the Penal code and were convicted by the Sessions Judge to suffer rigorous imprisonment for life and to pay a fine of TK. 10,000.00 each, in default to suffer rigorous imprisonment for one year more and the appellants were also convicted under Section 201/34 of the Penal Code and sentenced to suffer rigorous imprisonment for 3(three) years and to pay a fine of TK.5,000.00 each, in default to suffer rigorous imprisonment for six months more
by the learned Sessions Judge.
12. On an appeal before the High Court Division at the instance of the accused petitioners the same was allowed setting aside the judgment of conviction and sentence passed against three appellants therein who were acquitted and accordingly discharged. On an appeal to this” Court against the judgment and order of acquittal upon hearing appeal, this Court, however, set aside the order of acquittal and discharge of all the accused on the finding that accused Zahirul Alam Kamal is found guilty under Section 302/34 of the Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of
TK.lO,000.00 in default to suffer rigorous imprisonment for six months more. The other two appellants before us namely, Khondaker Zillul Bari and Nasiruddin Jamal were, however, convicted under Section 201/34 of the Penal Code and sentenced to suffer rigorous imprisonment for 7(seven) years and to pay a fine of TK. 10,000″.00 in default to suffer rigorous imprisonment for 6(six) months more. The sentence/sentences already undergone by the accused shall be deducted from the sentence/sentences of imprisonment
awarded by this Court directing the respondents to surrender forthwith to undergo the remainder of the sentence awarded against them. The accused were accordingly re-arrested to undergo the rest of the sentence apart from the sentences of imprisonment already undergone. As against the aforementioned judgment and the appellants filed review petition and thereupon leave was granted and consequent thereupon the appeals were rejected.
13. Although no exception could be pointed out by the learned Counsel for the appellants as regard the conviction of the appellants under Section 201/34 of the Penal Code but as regajd sentence, the learned Counsel has submitted that trial Court having punished the accused under Section 201/34 sentenced to suffer rigorous imprisonment for 3(three) years with a fine of TK.5000.00 each, in default to suffer rigorous imprisonment for 6(six) months more, this Court could not pass more than the sentence impugned by the
trial Court without a rule enhancement of sentence to that effect.
14. It is admitted that though the accused have been convicted under Section 302/34 of the Penal Code and were sentenced to suffer further 3(three) years and to pay a fine of TK. 10,000.00 and under Section 201/34 and to suffer imprisonment for 3(three) years and to pay a fine of TK.5,000.00 each or to suffer rigorous imprisonment for 6(six) months more by the trial Court. But the said conviction and sentence on appeal was set aside by the High Court Division acquitting the accused. On an appeal by the State however the said order of acquittal was set aside and the accused appellants were convicted and sentenced under Section 201/34 of the Penal Code to suffer rigorous imprisonment for 7 years and to pay a fine of TK. 10,000.00 each, in default to suffer rigorous imprisonment for 6(six) months more while considering the principal accused
for an offence under Section 302/34 murder and sentencing to suffer rigorous imprisonment for life with a fine of TK. 10,000.00 in default to suffer rigorous imprisonment for 6 months more.
15. The learned Counsel has, however, submitted that the appellants have been convicted under Section 201/34 and were sentenced rigorous imprisonment for 3(three) years and to pay a fine of TK.10,000.00 each, in default to suffer rigorous imprisonment for 6(six) months more by the learned Sessions Judge but this Court while convicting the accused
under Section 201/34 of the Penal Code setting aside the order of acquittal sentenced the accused-appellants to suffer rigorous imprisonment for 7(seven) years instead of 3(three) years RI awarded to them by the Sessions Judge in the absence of any appeal filed by the Government for enhancement of the said sentence before the High Court Division and as such, enhancement of sentence to 7 years by this Court without any notice to the appellants is not maintainable and as such, the impugned judgment and order needs to be
reviewed.
16. It is to be kept in mind that this Court though sitting on appeal over the judgment and order of acquittal passed by the High Court Division but unlike subordinate Courts even the High Court Division this Court has been given a special power to do complete justice under Article 104 of the Constitution inasmuch as this Court has been armed with the power of reviewing its own judgment under Article 105 of the Constitution and the provisiori of Article 105 should not be discussed in isolation which should be read with the provision of Article 104 of the Constitution to act towards achieving complete justice as has been held in the case of Mahbubur Rahman and others-vs-Mukibur Rahman
and others reported in 1984 BLD (AD) 175, as the word ‘complete justice’ mentioned
in Article 104 has got great significance and importance and accordingly this Court has the power of reviewing its judgment acting even sou motu to do complete justice while passing the judgment. This Court in the light of provisions of Articles 104 and 105 of the Constitution has ensured justice fully while disposing of the matter on merit setting aside the order of acquittal and passing an order of conviction and sentence. Furthermore, the
exclusive powers of the Appellate Division under Article 104 and 105 of the Constitution apply as special and extraordinary jurisdiction to avoid miscarriage of justice by establishing complete justice and with that view Appellate Division is the only Court and no other Court beyond this Court has got such jurisdiction.
17. In the instant case the accused-appellants having been found to be guilty under Section 201/34 along with the conviction and sentence of the principal accused
under Section 302 of the Penal Code the accused have been accordingly sentenced
in accordance with law.
18. The provision of Section 201 of the Penal Code which provides for; “whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening
the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall, if the offence which he knows or believes to have been committed is punishable with death, be punished
with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment
of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence is punishable with imprisonment for any term not
extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to onefourth part of the longest term of the
imprisonment provided for the offence or with fine, or with both.”
19. In this case the principal accused having been found guilty of offence under Section 302/34 of the Penal Code which is punishable with death or imprisonment for life and the substantive sentence being punishment to death but under extenuating circumstance could be punished with imprisonment for life, in my view, the accused appellant are liable to be punished with legal sentence with imprisonment of either descriptions which may extend 7 years and also to fine because the appellants were found guilty under Section
201/34 of the Penal Code against the conviction principal accused and sentenced
under Section 302 of the Penal Code providing that the offence of that the offence of murder shall be punishable with death or imprisonment for life and also be liable to fine. Since punishment with death i.e. the substantive sentence was for murder but considering extenuating circumstance it could be reduced to imprisonment for life, in that view of the matter the principal accused in the instant case has been convicted under Section 302 of the Penal Code for commission of murder of the victim. Accordingly, my considered view is that the appellants having been found guilty under Section 201/34 are liable to
be sentenced for a term which was of 7 years and also to a fine of TK. 10,000.00 in default to suffer rigorous imprisonment for 6 months more.
20. In that view of the matter I am not inclined to accept the submission of the learned Counsel for the appellant and accordingly these appeals for review do not deserve any consideration and are accordingly, dismissed.
21. M.M. Ruhul Amin, J: I ha,ve gone through to the judgments proposed to be delivered by my learned brothers Mohammad Fazlul Karim, J. and Md. Joynul Abedin, J.
22. I agree with my learned brother Md. Joynul Abedin, J. that the appeals are to be
allowed and sentence of the appellants are to be reduced from 7(seven) years to
3(three) years.
23. Md.Tafazzul Islam, J: I have gone through the judgments proposed to be delivered by my learned brothers Mohammad Fazlul Karim, J. and Md. Joynul Abedin, J as well as Md. Abdul Matin, J.
24. I agree with the view taken by my learned brother Md. Joynul Abedin, J. Accordingly the appeals are allowed and the sentences of the appellants are reduced from 7(seven) years to 3(three) years.
25. Md. Joynul Abedin, J: These two appeals have arisen out of the judgment and order dated 6.8.2007 passed by the Appellate Division in Criminal Review Petition Nos.l and 2 of 2007 arising out of judgment and order dated 2.5.2005 passed by the Appellate Division in Criminal Appeal Nos. 12 and 13 of 1998 arising out of the judgment and order dated 9.4.1996 passed by the High Court Division in Criminal Appeal Nos. 192 and 193 of 1994 convicting the appellants Khandker Zillul Bari and Nasiruddin Jamal under
sections 201/34 of the Penal Code and sentencing them to suffer rigorous imprisonment for 7 years and to pay a fine of Tk. 10,000/-, in default to suffer rigorous imprisonment for 6(six) months more by setting aside the order of acquittal by the judgment and order dated 09.04.1996 passed by the High Court Division in the aforesaid Criminal Appeal Nos. 192 and 193 of 1994.
26. The short fact is that the accusedappellants and 4(four) others were prosecuted in Sessions Case No.38 of 1990 in the Court of Sessions Judge, Barisal. They were charged under Sections 302/34 of the Penal Code for committing murder of one Faujia Rahman Chapa (25) and also under Section 201/34 for causing disappearance of evidence of the murder and further under Section 307/34 of the Penal Code for attempting to cause murder of Shakkhar, a 2 year old son of the deceased Chapa in furtherance of their common intention. The deceased Chapa was the daughter-in-law of one Khalilur Rahman, a rich businessman of Barisal Town. He has several sons and daughters living in
his house at Fakirbari Road, Barisal Town. Shahidul Alam, husband of the deceased Chapa and accused Zahirul Alam Kamal and appellant Nasiruddin Jamal are among the sons of Khalilur Rahman and accused Jesmin Ara is his daughter. Accused Farida Jesmin and Afroza Begum Bizlee are the two wives of the two sons of Khalilur Rahman i.e. his daughters-in-law. Appellant Khondker Zillul Bari is the sonin-law of Khalilur Rahman and husband of accused Jesmin Ara.
27. The occurrence took place on the night following 18.10.1989 at the aforesaid house of Khalilur Rahman. At the time of occurrence Khalilur Rahman, his wife and three sons including Shahidul Alam, husband of deceased Chapa, were away to Calcutta in connection with the treatment of Khalilur Rahman who was a heart patient. In the morning of 19.10.1989 deceased Chapa was found lying dead with injuries in the bed in her room in the first floor of the house and her bed was close to a window. She was sleeping in her aforesaid first floor bedroom and the accused including the appellants lived on the first floor and the servants and others were living on the ground floor of the
house.
28. It reveals from the evidence that in the morning of 19.10:1989 at about 10/11 A.M. there was a row in front of the house of Khalilur Rahman that an accident had taken place inside the house due to electrocution. The Officer-in-Charge of the Kotwali Police Station on receiving the information over telephone that a daughter-in-law of Khalilur Rahman died in the house, went to the said house and was told that the daughter-in-law Chapa, who was dead was taken to the hospital. He then went to the hospital and found there some members of the house of Khalilur Rahman and asked them to lodge Ejahar and left a police officer there to make an inquest and returned to Police Station. He received an Ejahar at 1:00 PM through an Advocate which was signed by the appellant
Nasiruddin Jamal. Investigation commenced and after a few days the investigation was taken over by PW. 1 Bimal Kumar Das an officer of CID. During investigation he collected materials and on the basis of which he came to the opinion that the appellants along with other coaccused were responsible for causing the murder of Chapa. He accordingly submitted final report in respect of the Ejahar filed by appellant Nasiruddin Jamal and suo motu lodged Ejahar on 27.03.1990 and after completion of investigation he submitted charge sheet against the appellants Khandker Zillul Bari and Nasiruddin
Jamal as well as other accused Zahirul Alam Kamal, Farida Jesmin, Afroza Begum Bizlee and Jesmin Ara under Sections 302/307/201/34 of the Penal Code. During trial 22 witnesses were examined by the prosecution and the husband of the deceased was examined as a court witness. Admittedly there was no eyewitness to the murder of Chapa which took place inside her bed room when she retired for the night with her young son,
her husband being away to Calcutta for the treatment of his father Khalilur Rahman.
29. The defence case as appeared from the trend of cross-examination was that deceased Chapa was injured by some miscreants from outside the window of her bed room while she was sleeping in the night before. The miscreants came to take away the ornaments from her person. She died because of the said injuries and the appellants and other accused were falsely implicated in the case at the instance of interested business rivals.
30. The learned Sessions Judge by its judgment dated 23.1.1994 after consideration of the evidence on record convicted the appellants as well as accused Zahirul Alam Kamal of the charge under Sections 302/34 of the Penal Code and sentenced each of them to imprisonment for life and to pay a fine of TK. 10,000.00 each, in default, to suffer rigorous imprisonment for one year more and also convicted them of the charge under Sections 201/34 of the Penal Code and sentenced them to suffer rigorous imprisonment for 3(three) years and to pay fine of TK.5,000.00 each, in default to suffer rigorous imprisonment for six months more. The aforesaid three female accused, Farida Jesmin, Jesmin Ara and Afroza Begum Bijlee were acquitted. Thereafter accused Md. Zahirul
Alam Kamal and appellants Nasiruddin Jamal and Khandker Zillul Bari filed Criminal Appeal Nos.192 and 193 of 1994 before the High Court Division against the aforesaid judgment of conviction and sentence. On the other hand, the Government by filing Government Appeal No.25 of 1995 challenged the said judgment of the learned Sessions Judge for giving acquittal to the aforesaid 3(three) female accused. A Division Bench of the High Court Division thereupon acquitted all the aforesaid three male accused and maintained the acquittal of the said 3(three) female accused by allowing the aforesaid
Criminal Appeal Nos.192 and 193 of 1994 and dismissing the Government Appeal No.25 of 1995 by judgment and order dated 9.4.1996.
31. Against this backdrop, the Government filed Criminal Appeal Nos. 12 and 13 of 1998 and this court by its judgment and order dated 2.5.2005 convicted accused Zahirul Alam Kamal under section 302 of the Penal Code and sentenced him to imprisonment for life and to pay a fine of Tk. 10,000/-, in default to suffer rigorous imprisonment for 6(six)
months more. The appellants Khandker Zillul Bari and Nasiruddin Jamal were however convicted under sections 201/34 of the Penal Code and sentenced to suffer rigorous imprisonment for 7(seven) years and to pay a fine of Tk.lO,000/-each, in default to suffer rigorous imprisonment for 6(six) months more. Against the aforesaid judgment dated 2.5.2005 appellant Khandker Zillul Bari filed Criminal Review Petition No.l of 2007 giving rise to present Criminal Appeal No.52 of 2007 and appellant Nasiruddin Jamal filed Criminal Review Petition No.2 of 2007 giving rise to present Criminal Appeal
No.53of2007.
32. Leave was granted to consider that the appellants were convicted under sections 201/34 of the Penal Code and were sentenced to suffer rigorous imprisonment for 3 years by the trial Court and the Government did not file any appeal for enhancement of the said sentence before the High Court Division and as such, enhancement of sentence of the appellants from 3 (three) years to 7 (seven) years by this Court in the appeals filed by the
Government without any notice to the appellants was not sustainable and as such the impugned judgment and order needed a review.
33. We have heard Mr. Kh. Mahbub Hossain, the learned Counsel for the appellant in C.A.No.52 of 2007 and Mr. Anisul Huq, the learned Advocate for the appellant in C.A.No.53 of 2007 and Mr. Abu Bakkar Siddique, the learned Deputy Attorney General for the respondent in both the appeals and perused the judgment of the High Court Division and other connected papers.
34. Mr. Kh. Mahbub Hossain and Mr. Anisul Huq contend that since the Government did not file any appeal before the High Court Division for enhancement of sentence of 3(three) years passed by the trial court under section 201 of the Penal Code the Appellate Division in the aforesaid two appeals filed by the Government was debarred in law to enhance the said sentence to 7(seven) years without giving them any opportunity to show cause against such enhancement of sentence. Mr. Abu Bakkar Siddique, the learned
Deputy Attorney General argues that since the offence committed in the instant case
is an offence of murder and the sentence whereof is death this court was competent to sentence the appellants to suffer rigorous imprisonment for 7(seven) years which being the legal sentence under section 201 of the Penal Code.
35. The moot question is whether the awarding of sentence of 7(seven) years rigorous imprisonment to the appellants by this court is an enhancement of 3(three) years sentence passed by the trial under sections 201/34 of the Penal Code and if i High Court Division in an appeal or reviso whether such enhancement of sentence I sion filed by the convict accused under can be made without affording any oppor- ! sections 423 and 439 respectively can tunity to the appellants to defend them- ; enhance the sentence suo moto but only selves against such enhancement. ; after issuing show cause notice on them.
36. We have noted that the trial court sentenced the appellants to suffer rigorous
imprisonment for 3(three) years under sections 201/34 of the Penal Code. The Government did not file any appeal to the High Court Division against such sentence
considering the same as inadequate. In otherwords, the Government admitted the sentence as legal and adequate. The appellants however preferred two appeals before the High Court Division against their conviction and sentence as illegal and the High Court Division on consideration of the materials on record acquitted them by setting aside their conviction and sentence. In the premises, the Government filed two appeals against such acquittal when this court sentenced the appellants to suffer rigorous imprisonment for
7(seven) years.
37. In the fact and circumstances of the case, when the Government did not file any appeal before the High Court Division accepting 3(three) years sentence under sections 201/34 of the Penal Code as adequate, the awarding of 7(seven) years sentence by this court for the same offence should be taken to be an enhancement of sentence. It may be stated that when the Government files an appeal to the High Court Division under section 417A of the Code of Criminal Procedure on the ground of inadequacy of sentence the High Court Division as an appellate court is only competent to enhance the sentence on putting the accused respondent on notice giving reasonable opportunity of showing cause
against such enhancement. Similarly, the
38. Unlike in an appeal or revision before the High Court Division under sections
417A, 423 or 439 of the Code of Criminal Procedure, there is no express provision of law requiring this court (Appellate Division) to issue prior notice calling upon the convict to show cause against enhancement of his sentence. But it cannot be disputed that it is a rule of natural justice that no one should be dealt with to his prejudice or deprived of his liberty without giving him an opportunity of being heard and making his defence. In that
view of the matter, when a statute gives a right of appeal it should be understood as silently implying, when it does not expressly provide, that the appellant shall have the right of being heard before his sentence is enhanced.
39. Normally Appellate Division does not re-appraise the evidence unless the findings
are perverse or vitiated by error of law or there has been substantial defect in the appraisal of the evidence leading to miscarriage or failure of justice. Where on the facts proved by evidence two reasonable views can be taken this court will not interfere. This court will not interfere merely because it would take a different view on the evidence. Further this court would not also interfere with the legal sentence passed by the trial court or the High Court Division unless it is shown that there is an illegality in it or it is unduly
lenient and the discretion in passing the sentence has not been judicially exercised. In the present case, the trial court having convicted the appellants and accused Zahurul Alam Kamal under sections 3 02/34 sentenced them to imprisonment for life. The trial court therefore having convicted them under sections 201/34 sentenced them to suffer 3(three) years rigorous imprisonment and this was a legal sentence as envisaged under the said sections of the Penal Code. But since this court subsequently on appeal by the
Government convicted the accused Zahurul Alam Kamal under section 302 of the Penal Code and sentenced him to imprisonment for life and convicted these two appellants only under section 201 of the Penal Code they were only liable to be sentenced to suffer rigorous imprisonment for 3(three) years only and not 7(seven) years inasmuch as accused Zahurul Alam Kamal was sentenced to imprisonment for life and not death sentence under section 302 of the Penal Code for causing murder of Chapa.
40. In the light of the aforesaid discussions the sentence of 7(seven) years rigorous imprisonment awarded by this court to the appellants in Criminal Appeal Nos. 12 and
13 filed by the Government was an enhancement of sentence and since this sentence was awarded under section 201 of the Penal Code without putting the appellants on notice giving them opportunity to defend themselves against such enhancement of sentence the same is bad in law.
41. The appeals are accordingly allowed and the sentence is reduced from 7(seven) years to 3(three) years.
42. Md. Hassan Ameen, J: I have gone through the judgment proposed to be delivered by my learned brother Md. Abdul Matin, J and agree with him on principle. Accordingly, the appeals are allowed and the appellants are acquitted.
43. Md.Abdul Matin, J.-I have had the advantage of going through the judgment proposed to be delivered by my learned brother Mohammad Fazlul Karim, J. as well as the proposed judgment by my learned brother Md. Joynul Abedin, J. but since I could not persuade myself to agree with the judgment passed by my learned brother Mohammad Fazlul Karim, J. dismissing the appeal and since I could not persuade myself to agree with the judgment passed by my learned brother Md. Joynul Abedin, J. only so far it relates to the relief this separate judgment is delivered.
44. These two appeals have arisen out of the judgment and order dated 06.08.2007 passed by the Appellate Division in Criminal Review Petition Nos.Ol and 02 of 2007 arising out of the judgment and order dated 02.05.2005 passed by the Appellate Division in Criminal Appeal Nos. 12 and 13 of 1998 arising out of the judgment and order dated 09.04.1996 passed by the High Court Division in Criminal Appeal Nos. 192 and 193 of 1994 convicting the appellants Khandker Zillul Bari and Nasiruddin Jamal under Sections 201/34 of the Penal Code (PC) and sentencing them to suffer rigorous imprisonment for
7(seven) years and to pay a fine of Tk. 10,000/-, in default, to suffer rigorous imprisonment for 6(six) months more by setting aside the order of acquittal by the
judgment and order dated 09.04 1996 passed by the High Court Division in the aforesaid Criminal Appeal Nos. 192 and 193 of 1994.
45. I agree with my learned brother Md. Joynul Abedin, J. in allowing the appeal but disagree with him in awarding sentence of 3(three) years and I disagree with my learned brother Mohammad Fazlul Karim, J. in dismissing the appeal.
46. Since the facts of the case have been narrated in the other two judgments I need not narrate them in this judgment. Admittedly the trial court convicted the appellants under Sections 302/34 and 201/34 PC and Government preferred no appeal on the ground of inadequacy of sentence.
47. It is also admitted position that on appeal by these appellants the High Court Division set aside the judgment of conviction of the principal accused Zahirul Alam Kamal as well as the present appellants Khandker Zillul Bari and Nasiruddin Jamal and acquitted them.
48. It is also admitted position that in the appeals against the judgment and order of the High Court Division by the Government only the principal accused Zahirul Alam Kamal was found guilty by this Division and the present appellants were given benefit of doubt in the charge against them under Sections 302/34 PC but this Division convicted them under Sections 201/34 PC.
49. It is also admitted position that no notice was served upon these appellants and on this ground my learned brother Md. Joynul Abedin, J. has allowed the appeal but only reduced the sentence from 7(seven) years to 3(three) years so far the appellants are concerned.
50. In view of Article 105 of the Constitution read with review rules as per Supreme Court of Bangladesh, Appellate Division Rules, 1988 in Order XXVI Rule I interference can be made only on the ground of an error apparent on the face of the record. The scope of interference is very limited. Nonetheless since in the instant case the error is apparent on the face of the record I am not inclined to limit the relief to reduction of sentence only.
51. In this case for non-service of notice upon the accused acquitted by the High Court Division the appellants have been denied their right of procedural due process. Had they been notified the result in the appeal might have been otherwise. Admittedly in this case, there is no eye witness of the occurrence and the conviction has been given on consideration of certain circumstances only. Admittedly the High Court Division acquitted the appellants.
52. Even this Division while deciding the appeal in their absence also gave them benefit of doubt on the main allegation under Sections 302/34 PC but at the same time convicted them under Sections 201/34 PC. This appears to be inherently contradictory particularly when none other than accused Zahirul Alam Kamal could be connected with the offence by any evidence. There were 18 inmates in the house. The trial court acquitted the
female inmates and the High Court Division acquitted all the accused and this Division convicted principal accused Zahirul Alam Kamal under Section 302 only and acquitted the present appellants from the principle charge under Sections 302/34 PC, but convicted these appellants under Section 201 without any independent evidence or circumstances.
53. The responsibility of a husband to explain the cause of death of his wife living in the same bedroom cannot be equated with the responsibility of other inmates living in ifferent rooms of a big building. In this case husband is not the accused and was living away from the scene of occurrence and the victim wife was living in her bedroom with her minor son. The defence plea under Section 105 of the Evidence Act or a special plea under Section 106 of the Evidence Act, even if, not proved does not absolve the prosecution of the duty to prove the present case beyond reasonable doubt. Reference may be made of the case of Safder Ali Vs. The Crown 5 DLR(FC) 64.
54. Besides the appellants enjoyed their freedom from 09.04.1996 when they were acquitted by the High Court Division and then they are released as per leave granting
order dated 03.11.1996 and, therefore, ends of justice will be met if the two appellants are given the full relief by allowing the appeals as a whole maintaining the judgment of the High Court Division so far the appellants are concerned. Therefore, I shall allow the
appeals. Accordingly the appellants are acquitted.
ORDER OF THE COURT
55. These appeals are allowed by majority judgment. The period of sentence is reduced to 3(three) years from 7(seven) years. The appellants are directed to surrender to serve out the sentence, if not already served out.
Source : V ADC (2008),697