Appellate Division Cases
Mona alias Zillur Rahman Convict Appellant (In Jail)………………Appellant
Md. Rahul Amin J
Syed J R. Modassir Hossain J
Abu Sayeed Ahammed J
Date of Judgment
7 March 2004
The Penal Code (XLV of 1860), Section 302/34.
The Children Act, 1974 Section 6(1).
Dismissing the appeal and consequent thereupon affirmed the judgment and order dated 0907-1990 passed by the Session Judge.
If at the time of trial, the offender not below the age of 16 years at the time framing charge for trial can be held together with adult and no separate trial is necessary (8)
Moreover this petition is also barred by 152 days. Although an application has been filed to condone the delay. But the explanations offered are not sufficient and satisfactory. So the delay is not condoned. Therefore, both on merits and on delay. This petition for leave to appeal loses merits for consideration and accordingly, it is dismissed (10)
Idrisur Rahman, Advocate instructed by A. K. M. Shahaidul Huq Advocate on record. For the Petitioner Not represented Respondent
1. Abu Sayeed Ahammed J :- Accused convict seeks leave to appeal against the judgment and order dated 29-3-2001 passed in Criminal Appeal In . 283of 1998by a Division Bench of the High Court Division, dismissing the appeal and consequent thereupon affirmed the judgment and order dated 09-07-1990 passed by the Session Judge Rajbari in Sessions Case No. 5 of 1991 which arose out of Rajbari P.S Case No. 2 dated 09-07-1990 being G. R No. 47 of 1990. Sessions Judge After holding trial convicted the petitioner under section 302 of Penal Code sentencing him to suffer imprisonment for life and pay a fine of Tk. 5,000/00 and in default to suffer rigorous imprisonment for further 6 months.
2. Case for the prosecution in short is that on 09-07-1990 at 11 p.m Sayed Ali Dewan lodged and F.I.R alleging that his younger brother victim shafique aged about 22 years while was returning home from the local Aladipur Bazar at 8. P. M closing his Grocery shop in the bazar being accompanied by one Nurul Islam and when they reached in front of shop of Anowarul Haque Mia, a co-villager of the victim, the accused petitioner stopped the victim and asked him, what did he (victim) tell to the Paternal uncle (chacha) Badsha Miah, of the Petitioner and at the moment Rahim a cousin of the petitioner, aught hold of sahfique, the victim and Mona alais Zillur Rahman the petitioner stabbed the victim on the chest with a knife causing bleeding injuries and as a result the victim feel down on the ground , the accused persons, thereafter filed away when the people were coming from around on hearing hue and cry of the victim. The companion and the other local people took the victim to Rajbari Hospital where the Doctor declared him already dead.
3. It is the further case of the prosecution that before 10/12 days there was a quarrel between Badsha Miah and the victim about the fishing net and because of that in a premeditated manner, the accused committed murder of the victim.
4. The police submitted charge sheet on 27.10.90 . The Sessions Judge, Rajbari held trial under section 302/34 of the Penal Code. The trial Court convicted the petitioner being satisfied upon considering the evidence on record under section 302 of the Penal Code.
5. Against the judgment and order of the Trial Court, the said Criminal Appeal was taken by the petitioner before the High Court Division. The High court upon considering the evidence on record dismissed the said appeal by the impugned judgment and order. Being aggrieved by the order of the High Court Division, the present petition for leave to appeal has been filed by the accused petitioner.
6. Mr. Idrisur Rahman, the learned Counsel appearing for the accused petitioner advances before us only one point namely that at the time of commission of offence the convict petitioner was aged below 16 years and as such his trial could not be held legally with about who was other co accused of the petitioner, which is barred under section 6(1) of the Children Act, 1974 and he submits that the petitioner j should have tried as a Juvenile offender under section 4 of the Children’s Act, 1974.
7. Section 6(1) of the said, At reads as follows: “6(1) Notwithstanding anything contained in section 239 of the Code or any other law for the time being in force, no child shall be charged with, or tried for, any offence together with an adult: Child has been defined section 2(f) of that Act which reads as follows. Child means a person under the age of sixteen years and when used with reference to a child sent to a certified institute or approved home or committed by a court to the custody of a relative or other fit person
means that Chilled during the whole period of his detention notwithstanding that he may have trained the age of sixteen years during that period”.
8. The relevant law was amended later on by adding sub-section 1 with section 6 and it was enacted that if at the time of trial, the offender not below the age of 16 years at the time framing charge for trial can be held together with adult and no separate trial is necessary.
9. Mr. Idrisur Rahman, the learned Cousnel sbumtis that the trial was illegal because the convict petitiner was below the age of 16 years at the time of his trial which was held with an other adult accused and the trial has been vitiated by operation of law. But the learned Counsel for the petitioner totally fails to convince us by presenting any materially whatsoever from the evidence on record or from the judgment of the courts below that the petitioner was below 16 years at the time of framing charge against the him vis-a-vis, at the time of holding trial.
10. We see that the High Court Division while considering this aspect of the legal conflict was not satisfied because there was no date or material that the convict petitioner was below the age 16 years at the time of trial. Excepting this point Mr. fdrisur Rahman, the learned Counsel for the petitioner did not argue any other point before us. We find that in view of the aforesaid legal provision, the High Court Division has not committed any illegality and s such we do not find that the judgment and order of the High Court Division invites our interference as it does not suffer from any legal infirmity. Moreover this petition is also barred by 152 days. Although an application, has been filed to condone the delay. But the explanations offered are not sufficient and satisfactory. So the delay is not condoned. Therefore, both on merits and on delay. This petition for leave to appeal loses merits for consideration and accordingly, it is dismissed.
Source: III ADC (2006) 505