Mohammad Salim Ahmed Vs. The State

Appellate Division Cases

(Criminal)

JUDGES

Syed J. R. Mudassir Husain CJ

Mohammad Fazlul Karim, J

Amirul Kabir Chowdhury J

PARTIES

Mohammad Salim Ahmed @ Md. Salim Mi ah ………………………Petitioner

-Vs-

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

Date of Judgment

20th November 2005

The Penal Code (XLV of 1860), Section 394.

The informant was accompanied by other employees of the company at the time of occurrence and as such they are most natural witnesses of the occurrence. We are, therefore, of the view that examination of the said witnesses though belonging to informant’s company has not damaged the prosecution case (5)

Md. Nawab AH, Advocate-on-Record For the Petitioner Not represented Respondent

JUDGMENT

1. Amirul Kabir Chowdhury J: Convict petitioner Mohammad Salim Ahmed @ Md. Salim Miah seeks leave to appeal in this petition against the judgment and order dated 24.05.2003 passed by a Division Bench of the High Court Division dismissing Criminal Appeal No. 1748 of 2000 thereby affirming the Judgment and order passed by the learned Additional Sessions Judge, 2 n ” Court, Narayangonj convicting the accused petitioner under Section 394 of the Penal Code and sentencing him to suffer rigorous imprisonment for 14 (fourteen) years and to pay fine of TK. 5,000/- in default, to suffer rigorous imprisonment for 2 (two) years more.

2. The facts, in short, arc that one Md. Farooq Hossain an employee of Zaman and Company on 11.09.1996 at about 3. 45 P. M. was returning with his companions to Narayanaganj officer with sale proceeds of cigarette and while reached Eidgah field, four person;; obstructed his way and tried lo snatch away key of the van which was carrying them and that the miscreants put him into a ditch when he refused to hand over the key and then they snatched away the key and therefter looted away TK. 95,000/- along with a bag wherein the money was kept and on the basis of aforesaid allegation said Md. Farooq Hossain lodged First Information Report. Thereafter a case was started and it was investigated by the police and the police after investigation submitted charge sheet under Section 394 of the Penal Code. The case being sent for trial, prosecution produced 5 witnesses. The accused petitioner was in abscondance after being released on bail. After concluding the trial the learned Additional Sessions Judge by judgment and order dated 14.01.1999 convicted the accused petitioner under Section 394 of the Penal Code and sentenced him there under as already mentioned above. The accused petitioner moved the High Court Division in Criminal Appeal No. 1748 of 2000 and a Division Bench of the High Court Division after hearing the parties by the impugned judgment and order dismissed the appeal. Hence is this petition.

3. In support of the petition Mr. Md. Naqab Ali, learned Advocate-on-Record submits, inter alia, that there being no cogent evidence warranting conviction of the accused petitioner the High Court Division committed illegality in dismissing the appeal.

4. He further submits that P.W. 1, the informant of the case is an employee of Zaman and Company while P.W. 2 Md. Farhad Hossain is also an employee there P.W. 3 Kashem Jamal is Managing Director of the said company and as such the witnesses being employees/ Director of the informant company are highly interested and, therefore, the High Court Division committed illegality in discarding (heir evidence.)

5. We have considered the submissions made by the learned Advocate-oh-record and perused the materials. P.W. 1 the informant was accompanied by other employees of the company at the time of occurrence and as such thev are most natural witnesses of the occurrence. We are, therefore, of the view that examination of the said witnesses though belonging to informant’s company has not damaged the prosecution case. The High Court Division after considering the facts and circumstances observed: As regards the participation of accused appellant in the occurrence we may be permitted to say that the private witnesses i. e. P. Ws. 1 to 3 have in a voice said about snatching away of the money in question in broad day light from public road on the date after giving the informant a good beating as well as keeping him into a ditch and this fact appears to have not been challenged by P.Ws has been cross-examined by the defence. The mere fact that the prosecution did not examine the doctor may not vitiate the charge. Since all the private P.Ws in a voice said about beating of the informant victim in the process of snatching away of the money There is nothing in the definition of hurt to suggest that the hurt should be caused by direct physical contact between the accused and the victim. Where serious mental derangement is caused by some voluntary act, a hurl is caused. In the instant case, all the private witnesses, specially, P. Ws. 1 and 2 have said in a voice that informant after giving good beating and throwing him into a nearby ditch which has not been challenged during trial and as such we find no hesitation to hold that the allegation  so brought against the accused appellant comes under the mischief of Section 394 of the Penal Code and accordingly the submission of the learned Advocate for the appellant on this behalf has got no leg to stand upon.”

6. In view of the discussion made above, we are of the view that the High Court Division correctly decided the appeal and affirmed the judgment and order of conviction. We in facts and circumstances do not find any reason to interfere with the impugned judgment and order. The petition having no substance is dismissed.

Source: III ADC(2006) 496

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