Appellate Division Cases
(Criminal)
PARTIES
Nantu ……………… Petitioner.
-Vs-
The State……………………. Respondent.
JUSTICES
Mohammad Fazlul Karim J
Md. Joynul A bed in J
Md. Hassan Ameen J
Judgment Dated: 30th October 2007
The Penal Code, Sections 147/148/ 149/ 342/ 326/ 307/ 364
Alleging, inter-alia, that her husband had enmity with them over landed property in Charbaria. She alleged that on the previous evening at about 8 P.M. brother, Alauddin along with their cousins, Dulal, Fazlu, Gulam. Delwar and Jashim were coming to visit her traveling on an engine boat. No sooner had they alighted from their engine boat on the embankment in the village, they were chased by the above named accused and obliged to take refuge in the house of Aynal wherefrom 4 of them were dragged out and taken to the house of Babul, Khalek and Harun. The informant’s brother and one of her cousins managed to flee to a safety, but the others were subjected to torture by the accused, in consequence of which her cousin, Jashim died………………….. (2)
Police took up investigation, visited the place of occurrence, prepared sketch map with separate index, seized alamats by preparing seizure list, prepared inquest report of the dead body of the deceased and sent it to the morgue for holding post-mortem examination, examined the witnesses and recorded their statement of the some witnesses under Section 164 of the Code of Criminal Procedure by a competent Magistrate. Thereafter, on receipt of the opinion of the doctor, who held the postmortem examination of the deceased, submitted charge sheet under Sections 147/148/149/342/326/307 and 364 of the Penal Code (4) After close of the prosecution witnesses, the accused on dock were examined under Section 342 of the Code of Criminal Procedure to which they repeated their innocence. The defence however did not adduce any evidence. ……………….(6)
Syed Amirul Islam. Senior Advocate, instructed by Md. Nawab Ali, Advocateon-Record ……………………….For the Petitioner
Respondent…………………………. Not represented.
Criminal Petition For Leave To Appeal No.338 of 2006
(From the judgment and order dated 21st August, 2005 passed by the High Court Division in Criminal Appeal No.2057 of 2001)
JUDGMENT
Md. Hassan Ameen J : The petitioner Nantu (accused appellant) seeks leave to appeal against the judgment and order dated 21st August,2005 passed by a Division Bench of the High Court Division in Criminal Appeal No.2057 of 2001 dismissing the appeal of the convict-petitioner and those of 15 co-accused while allowing the appeals of 4 other coaccused against the judgment and order dated 29-05-2001 passed by learned Additional Sessions Judge, 1st Court. Barisal in Sessions Case No. 12 of 1999, arising out of Barisal Kotwali P. S. Case No. 13 dated 09-08-1996 corresponding to G. R. No.298 of 1996 converting the accused-appellant and others under Sections 302/149 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for life and to pay a fine of
Tk.50()0/- each, in default to suffer rigorous imprisonment for a further period of 2 years and convicting them under Sections 201/34 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for a period of 2 years and to pay a fine of Tk. 1,000/- each, in default, to suffer rigorous imprisonment for a further period of 3 months.
2. The petitioner along with others were placed on trial for the offence under Sections 302/ 149 and 201 of the Penal Code on the basis of F.I.R. lodged by one Beauty Begum, wife of Halim Sikdar of village-Charbaria under P. S. Kotwali, District-Barisal at 11.30 A. M. 09-08-1996 against 23 persons for the offence under Sections 147/148/149/342/326/307 and 364 of the Penal Code, alleging, inter-alia, that her husband had enmity with them over landed property in Charbaria. She alleged that on the previous evening at about 8 P.M. brother, Alauddin along with their cousins, Dulal, Fazlu, Gulam, Delwar and Jashim were coming to visit her traveling on an engine boat. No sooner had they alighted from their engine boat on the embankment in the village, they were chased by the above named accused and obliged to take refuge in the house of
Aynal wherefrom 4 of them were dragged out and taken to the house of Babul, Khalek and Harun. The informant’s brother and one of her cousins managed to flee to a safety, but the others were subjected to torture by the accused, in consequence of which her cousin, Jashim died. His dead body was thrown into river Kirtankhola. The eyes of her other three cousins, Dulal, Selim and Delwar were gouged. Accordingly, the aforesaid Police Station case was started.
3. Police took up investigation, visited the place of occurrence, prepared sketch map with separate index, seized alamats by preparing seizure list, prepared inquest report of the dead body of the deceased and sent it to the morgue for holding postmortem examination, examined the witnesses and recorded their statement of the some witnesses under Section 164 of the Code of Criminal Procedure by a competent Magistrate. Thereafter, on receipt of the opinion of the doctor, who held the post-mortem examination of the deceased, submitted charge sheet under Sections 147/148/149/342/326/307 and 364 of the Penal Code.
4. The case record came to the Court of learned Sessions Judge, Barisal, which was ultimately tried and disposed of by the learned Additional District Sessions Judge, 1st Court, Barisal, who framed charge against the petitioner along with others under Sections 302/149/201 and 326 A of the Penal Code and read it over to the accused on dock to which they pleaded not guilty and demanded trial.
5. The prosecution examined 20 Pws. all of whom were crossexamined by the defence.
6. After close of the prosecution witnesses, the accused on dock were examined under Section 342 of the Code of Criminal Procedure to which they repeated their innocence. The defence however did not adduce any evidence.
7. The defence case as could be gathered from the trend of cross-examination is total denial and inter-alia, case is that the he was neither connected with nor responsible for murder of the deceased but has been falsely implicated in this case out enmity and grudge.
8. The trial Court, in consideration of evidence on record as well as facts and circumstances of the case, found the accused petitioner guilty for the offence charged and convicted them thereunder and sentenced to suffer imprisonment for the period as mentioned against their names including the petitioner along with an order to pay a fine of Tk. 5,000/- each, in default, to suffer rigorous imprisonment for 2 years more, the petitioner along with others were further found guilty for the offence charged under Section 201 of the Penal Code and convicted thereunder and sentenced to suffer rigorous imprisonment for 2 years and also to pay a fine of Tk. 1000/- each, in default, to suffer rigorous imprisonment for 3 months more with an order to run both the sentences concurrently.
9. Being aggrieved and dissatisfied by the judgment and order of the trial Court, the petitioner preferred aforesaid Criminal Appeal before the High Court Division
and the learned Judges of the High Court Division upheld the conviction and sentence
of the convict-petitioner and others, while allowing the appeal of the other coaccused.
Against the impugned judgment and order dated 21-08-2005 passed by the High Court Division, the petitioner has come with the present petition for leave to appeal.
10. Mr. Syed Amirul Islam, the learned Advocate appearing for the petitioner, submits that upholding the conviction of the petitioner, the learned Judges of the High Court Division have applied double standard in as much Pws.2 and 3 implicated convict Monir Raj, Babul Mirdha, Husain Bepari and Chand Kha along with the present petitioner and similarly Pw. 13 also implicated Babul Mirdha and Hossain Bepari along with the crime and the Pws.4, 12 and 13 though implicated the petitioner in their deposition but in fact
admittedly the aforesaid 3 witnesses did not mention the name of the petitioner in their statement recorded under Section 161 of the Code of Criminal Procedure. Similarly, Pws. 2 and 3 implicated the petitioner with the crime in their deposition before trial Court but fact remains that the said two witnesses did not mention the name of the petitioner in their statement recorded under Section 164 of the Code of Criminal Procedure in as much as these 2 witnesses were examined by I/O long after 20 days of the occurrence and there is no explanation for this delay which rendered their testimony untrustworthy. He then submits that the learned Judges of the High Court Division failed to sift the evidence on record in its true perspective. He lastly, submits that the learned Judges of the High Court
Division ignored the vital fact about changing means of recognition as stated in their statement under Section 161 of the Code of Criminal Procedure to that in Court by all the Pws. found to have said in their statement under Section 161 of the Code of Criminal Procedure, torchlight which had been seized and produced in the Court.
11. Under the circumstances, he contends that the findings and decisions of the High
Court Division has caused miscarriage of justice and as such the impugned judgment and order of conviction so far it relates to the petitioner is liable to be set aside.
12. We have heard the learned Advocate for the petitioner and perused the materials
available on record and reasons to believe that the submissions of the learned Advocate for the petitioner have got no merit. Accordingly, the petition for leave to appeal is dismissed.
Source : V ADC (2008), 174