Appellate Division Cases
Mainul Islam ………………………………………….Petitioner
The State & another …………………………………………….Respondent
Syed J. R. Mudassir Husain C J
Mohammad Fazlul Karim J
Amirul Kabir Chowhdury J
Date of Judgment
14th October 2005
The Penal Code (XLV of 1860), Sections 3411 320/302/34.
The story of the alleged dying declaration also appear to be concocted P. W. 2 did not divulge the story of her recording a dying declaration to anybody else for a long period and the recorded declaration did not see the light of the day at least within who months from its date . A dying declaration recorded by a close relative of the victim and which was kept secret for an unusual period cannot inspire confidence and apparently appears to have been concocted with ulterior motive…… (10)
Md. Nawab Ali, Advocate on Record for the Petitioner.Abdul Baset Maj umder. Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record For Respondent No.2 Abdul Basel Maj Hinder Senior Advocate, instructed bx Sufi a Khalun, Advocate-on Record For Respondent.Not represented Respondent No. 1.Not represented Respondent Nos. 7
1.Amirul Kabir Chovvdhury : In Criminal Petition for Leave to Appeal No. 189 of 2003 informant Mainul Islam seeks leave to appeal against the Judgment and order dated ‘26.11.2002 passed by a Division Bench of the High Court Division in Criminal Appeal No. 527 of 2000 dismissing the appeal thereby affirming the judgment and order dated 15.03.2000 passed in Sessions Case No. 28 of 1998 by the learned Sessions Judge, Munshiganj acquitting the accused respondent of the charge under Sections 341/ 320/ 302/ 34 of the Penal Code 1860.
2. In Criminal petition for Leave to Appeal No. 190 of 2003 aforesaid informant Mainul Islam seeks leave to appeal against the judgment and order dated 26.11.2002 passed by a Division Bench of the High Court Division in Criminal Revision No. 703 of 2000 discharging the rule and affirming the judgment and order dated 15.03.2000 passed in Sessions Case No. 24 of 1995 by the learned Sessions Judge, Munshiganj acquitting the accused respondents of the charge under Sections 341/ 320/ 302/ 34 of the Penal Code.
3. The facts, in short, arc that the informant petitioner Mainul Islam on 30.08.1994 lodged a First Information Report with Sirajdikhan Police Station in the District of Munshiganj stating, inter alia, that on 29X)8.1994 ” while Hashimunnessa Khanam elder sister of his wife Dr. Fatema Khanam and Ataur Rahman Tom son of Ilashimunncssa Khanam were going to Gudaraghat from their house at Gopcrpur the accused respondents
and some other unknown accused being armed with dealdy weapons including pistol, hockey stick etc. obstructed them in their watt and that one of the unknown accused assaulted Ataur Rahman Tonj on his head with the pistol lying in his hand and accused respondent Obaidul Huqc assaulted Ataur Rahman Toni indiscriminately with hokey stick and other accused persons assaulted him with hockey stick causing multiple injuries and the while mother of Ataur Rahman Toni, namely. Ilashimunnessa Khanam raised hue and cry the accused persons attacked them and assaulted them and that Ataur Rahman Toni being seriously injured was taken to Dhaka Medical College Hospital and was under
treatment there and that on the basis of the aforesaid First Information Report, Sirajdukhan P. S. Case No. 3 (8)/94 was started and that the aforesaid victim during his treatment died in the hospital on 31.08.1994. The police investigated the case and the case and submitted charge sheet on 26.02.1995 and the case was sent to the court of the learned Sessions Judge for trial, which was registered as Sessions Case No. 24 of 1998.
4. Facts necessary for disposal of the Criminal Petition for Leave to Appeal No. 190 of 2003 are that after holding investigation by the police while submitting report under Section 173 of the Code of Criminal Procedure accused respondent Ali Asgar Bepari was excluded from the said police report and as such a nara/i petition was filed by the aforesaid informant which was rejected by the learned Magistrate summarily and then the petitioner moved the learned Sessions Judge in revision against the aloresaid ; order of the learned Magistrate and the learned Sessions Judge after hearing the parties directed further investigation and being aggrieved the accused respondent Ali Asgar Bepari preferred ) revisional application before the High court ; Division which was rejected and he unsuccess-! fully moved the Appellate Division. Thereafter ; a learned Magistrate. First Class. Munshiganj ; held judicial enquiry and found a prima facie case against accused respondent Ali Asgar Bepari and sent the case records to the learned Sessions Judse for trial which was registered as Sessions Case No. 28 of 1998 and both the cases i. e. the case against accused respondent Ali Asgar Bepari and other previously charge sheeted accused were tried together by the learned Sessions Judge who acquitted of the accused persons of both the cases and the informant petitioner preferred Criminal Appeal No . 527 of 2000 and Criminal Revision No. 703 of 2000 against orders of acquittal passed by the learned Sessions Judge.
5. The High Court Division heard both the matters i. e. Criminal Revision No. 703 of 2000 and Criminal Appeal No. 527 of 2000 together and by the impugned judgment discharged the rule and dismissed the Appeal. The informant Mainul Islam being aggrieved preferred these two petitions.
6. In support of the petitions Mr. Md. Nawab Ali. learned Advocate-on-Recrod submits, inter alia, that there is cogent evidence warranting conviction of the accused respondents ut the courts below committed illegality in acquitting the accused respondents ignoring the evidence.
7. He further submits that dying declaration made by victim Ataur Rahma Toni abundantly discloses evidence of commission of his murder by the accused respondents but the High Court Division acquitted the accused respondents lending deaf ear to such important piece of evidence and thus committed error.
8. Mr. Abdul Baset Majumder. learned Counsel appearing on behalf of the accused respondents contends that there is absolutely no evidence whatsoever calling lor interference by this Court.
9. He further submits that the alleged dying declaration purported to have been made by the victim is concocted story which has rightly been disbelieved by the High Court Division and as such there is no ground for interference. 10.We have considered the submissions made at the Bar and perused.
11. On perusal of the evidence it appears that the prosecution failed to established the case beyond shadow of doubt and both to courts below considered the evidence and correctly came to The finding that the prosecution failed to prove the case. The claim of having dying declaration of the victim appears to have been considered by the High Court Division who observed:”Thc story of the alleged dying decaration also appear to be concocted P. W. 2 did not divulge the story of her recording a dying declarationto anybody else for a long period and the recorded declaration did not see the light the day at least within who months from its date . A dying declaration recorded by a close relative of the victim and which was kept secret for an unusual period cannot inspire confidence and apparently appears to have been concocted with ulterior motive.”
12. After considering the evidence on record and the judgment passed by the High Court Division we find that the submissions made on behalf of the petitioner do not inspire us to lay our hands. The petitions thus appear to be bereft of substance and hence arc dismissed.
Source: III ADC (2006) 424