Md. Shamir @ Shamir Khan Vs. The State

Appellate Division Cases

Criminal

PARTIES

Md. Shamir @ Shamir Khan… ………………………….Appellants

= Vs=

The State ………………………………………………..Respondent

JUSTICE

Mahmudul Amin Choudhury C. J

Md. Ruhul Amin J

Abu Sayeed Ahammed J

JUDGEMENT DATE: 12.5.2002

section 326, section 320 of the Penal Code, section 335, section 324 The ingredients of the offence punishable under section 326 of the Penal Code has not been proved by the prosecution but there is proof of allegation punishable under section 324 of the Penal Code. In such circumstances we are inclined to dismiss the appeal with modification in conviction as well as in sentence….(6)

conviction under section 326 of the Penal Code passed against these two appellants is here by converted into a conviction under section 324 of the Penal Code and as the appellants are in coustody for quite some time we are inclined to interfere with the quantum of sentence also and reduce the same to the period of imprisonment already undergone and accordingly the same is done…. (6)

Criminal Appeal No 31 of 2000 (From the judgment and order dated 4.5.1999 passed by the High Court Division in Criminal Appeal No. 1933 of 1993)

Mr. A. B. M. Nurul Islam Senior Advocate, instructed by., Mr. Md. Aftab Hossain, Advocateon-Record…………. For appellants

Not represented…. Respondent:

Judgment

1. Mahumudul Amin Cohdhury C. J. : This appeal by leave is against judgment and order dated 4.5.1999 passed by the High Court Division in criminal Appeal No. 1933 of 1993 upholding the conviction and sentence passed by the learned Sessions Judge. Rajbari in Session Case No. 1 of 1993 convicting the sentencing the appellants to suffer rugorous imprisonment for five years under section 326 of the Penal Code and to pay a fine of Tk. 1,000/- each in default to suffer rigorous imprisonment for one month more.

2. The short fact leading to this petition is that on 6.5.1992 at about 12.00 mid night the informant P. W. 1 woke up from sleep on hearing hue and cry and moved toward the railway line where he found his son in law in injured and unconscious condition. It is the further case of the prosecution that the F. I. R. named witness Abdul laity informed the informant where the occurrence took place. Abdul Latif married Jharna Khatun two months back but he divorced her and then married Rabia and after one year she left him and then started living with her parents. At this brother of Rabia became furious and to teach a good lesson Rabia’s brother Sohrab with Shamir. Shamsul Kha. Bachchu. Amir Kha, Altaf Hossain and others came to Latif s thater-in-law’s house and ordered Latif to follow them. Seeing this Shaheed informed the villagers who came for the rescue of the victim and a fight started. At that time appellant Sohrab dealt a Sore blow on the nabal of Rafique causing bleeding injury and appellant Shamir dealt a Sore blow on the left arm and chest causing bleeding injury. These two appellants and others were identified by the focus of the torch light of the accused. These two appellants along with others were placed on trial before the learned Sessions judge. Rajbari who convicted and sentenced the appellants as aforesaid. Thereafter these two appellants along with another preferred Criminal Appeal No. 1933 of 1993 before the High Court Division wherein the appeal was dismissed. Against this order of dismissal of the appeal the present appellants preferred Criminal Petition for leave to appeal wherein leave was granted in the following terms:_ “The learned Counsel appearing on behalf of the petitioners submits that the conviction of these appellants under section 326 of the Penal Code for causing grievous hurt is not maintainable in as much as the ingredient mentioned in section 320 of the Penal Code is singularly absent in the present case. He submits that there is no evidence that the injured persons were prevented from pursuing their normal avocations for over 20 days due to the injury or there was fracture or dislocation of bone etc. bringing it within the ambit of section 320 of the Penal Code. It is submitted that P. W. 3 claimed that he sustained injury in the left hand and was in hospital for 7 days, it is also claimed that the medical evidence has not also supported the prosecution case punishable under section 326 of the Penal Code. Mr. Islam submits that no person can be convicted under section 326 of the Penal Code if the prosecution fail to prove the ingredients of the offence as incorporated in section 320 of the Penal Code which is singularly absent in the present case.” In this case these two appellants were found guilty of the offence punishable under section 326 of the Penal Code and were sentenced to suffer rigorous imprisonment for five years with a fine of Tk. 1,000/- each in default to suffer rigorous imprisonment for one month more.

3. Section 326 of the Penal Code provides that whoever except in the case provided for by section 335 voluntarily causes grievous hurt by means of any instrument for shooting stabbing or cutting or any instrument which used as a weapon of offence is likely to cause death may be convicted and sentenced under this section. So if any weapon of offence such as dagger etc. is used by grievous hurt grievous hurt is caused to an individual the attacker may be convicted and sentenced under section 326 of the Penal Code. Grievous hurt has been defined in section 320 of the Penal Code, It provide for permanent disfiguration of the head or face, fracture or dislocation of bone or tooth. Disfiguration or permanent impairing of the powers of any member or joint, permanent privation of the hearing of either ear. Emasculation and any hurt which endanger life or which causes the sufferer to be during the space of twenty days or unable to follow ordinary pursuits, Unless any of these injuries are found and unless the injured suffer bodily pain during a period of 20 days or unable to follow ordinary pursuit during this period the offence of grievous hut in not committed. Here in the present case before us though dagger were used by the two appellants Md. Shamir @ Shamir Khan and Shamsul Haque @ Shamsul Khan but none of the injured persons were in the hospital for twenty days and there is no evidence that the injured persons failed to pursue their normal avocations for twenty days. P. W. 3 claimed that he sustained injury in the left hand and was in hospital for seven days. The medical report has also not supported the prosecution allegation that these two appellants caused grievous hurt as defined in section 320 of the Penal Code.

5. The learned Advocate appearing on behalf of the appellants submits that when the prosecution failed to prove that the injured persons were in the hospital for twenty days or that they failed to pursue their normal avocations for twenty days after sustaining injury the allegation comes within the provision of section 324 of the Penal Code and not section 326 of the Code. The learned Advocate candidly admitted that the evidence as adduced from the side of the prosecution indicate that the case comes within the » ambit of section 324 of the Penal Code.

6. We have gone through the evidence on record and we hold that the ingredients of the offence punishable under section 326 of the Penal Code has not been proved by the prosecution but there is proof of allegation punishable under section 324 of the Penal Code. In such circumstances we are inclined to dismiss the appeal with modification in conviction as well as in sentence. The appeal is accordingly dismissed but conviction under section 326 of the Penal Code passed against these two appellants is here by converted into a conviction under section 324 of the Penal Code and as the appellants are in coustody for quite some time we are inclined to interfere with the quantum of sentence also and reduce the same to the period of imprisonment already undergone and accordingly the same is done. The conviction passed under section 326 of the Penal Code is converted into a conviction under section 324 of the Penal Code and sentence of imprisonment for five years is hereby reduced to the period of imprisonment already undergone with a fine of Tk. 1,000/- each in default to suffer imprisonment for one month more.

Ed.

Source: I ADC (2004),89

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