Samar Uddin Vs. The State

Appellate Division Cases

(Criminal)

PARTIES

Samar Uddin and another ………………………………Petitioners

-Vs-

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

JUDGES

K. M. Hasan C J

Mohammad Fazlul Karim, J

Md. Hamidul Haque J

Md. Tafazzul Islam J.

Date of Judgment

10 December 2003

The Penal Code (XLV of 1860), Section 147, 148, 149, 323, 324, 326, 302, 427/34.

The Code of Criminal Procedure (V of 1898), Section 34A.

Consideration the fact that there are major contradiction and omission in the evidence of all the witnesses and that the prosecution have failed to prove the time, manner and also the place of occurrence by evidence and moreover the place of occurrence has also been shifted from the back of the pond to the courtyard of the house. Further, the trial court as well as the High Court Division failed to take into consideration that all the prosecution witnesses are closely related to each other and not a single impartial witness came to support the prosecution case at trial even Regarding the prayer for bail, Mr. Gaffar has submitted that the petitioner No. 1 voluntarily surrendered on 9.10.96 and since then he is in custody and was never granted bail by any court and in terms of provision of section 34A of the Code of Criminal Procedure as maneded, since the petitioner No. 1 has already suffered imprisonment for most of the period of sentence and only few months are left and that the petitioner No. 2 whose sentence was reduced from 5 years to 4 years by the High Court Division was all along on bail during the pendency of the appeal and as such he may also on enlarged on bail till hearing of the leave petition (5)

ADVOCATES

M. A. Gaffar, Advocate (appeared with leave of the court ) instructed by A. K. M. Shahidul fluq. Advocate-on-Record For the Petitioners .Not Respondent Respondent .

ORDER

1. Md. Tafazzal Islam J:- This criminal petition for leave to appeal filed by the accused petitioners is against the Judgment and order dated 26.4.2003 passed by a Division Bench of the High Court Division Criminal Appeal No. 1127 of 1998 allowing the appeal in part by reducing the sentence of appellant No. 1 from imprisonment for life to 10 years and a fine of TK. 10,000/- in default to suffer rigorous imprisonment for two year more under section 304/34 of the Penal Code and by reducing the sentence of the appellant No. 2 from 5 years to 4 years and a fine of TK. 1000/in default to suffer 1 years rigorous imprisonment more under section 326 of the Penal Code. Previously, the Additional Sessions  Judge, Moulavibazar by a judgment and order dated 26.5.1998 passed in Sessions Case No. 143/95 convicted petitioner No. 1 under section 304/34 of the Penal Code and sentenced him to suffer imprisonment for life and a fine to TK. 10,000/- in default to suffer rigorous imprisonment for two years more and also convicted the petitioner No. 2 under section 326 of the Penal Code and sentenced him to suffer rigorous imprisonment for 5 years and a fine of TK. 1000/- in ~4 default to suffer rigorous imprisonment for one year more.

2. The prosecution case, in short, is that one Habibur Rahman, as informant, lodged First Information Report on 2.7.1994 stating inter alia that in the night previous to 2.7.1994 an unknown they has stolen a jack fruit from the jackfruit tree situated at the abandoned house of Wahidur Rahman, cousin of the informant and that on the following morning noticing the same, Tuni  Miah, brother of Wahidur Rahman, started abusing the unknown thief whereupon accused Sipar and Aziz protested and asked him not to make such abuse with filthy language for a jack fruit and at one stage it turned into a severe altercation between them and on hearing the hue and cry. the other accused persons including the petitioners came to the place of occurrence with arms in their hands and encircled his father Durud Miah and Tunu Miah and started assaulting them with sulfi and lathi and the

irhormant and his brother rushed to the place of occurrence to rescue their father and Tunu Miah and thereafter the petitioner No. 1 Samar Uddin gave a sulfi blow on the left side of the chest of victim Saidur Rahman, accused Askar gave lathi blow on the body of the above victim and petitioner No.2, Asrat gave a sulfi blow on the left side of the chest of Durud Miah ( P. W. 7) and accused Ganu iah gave a lathi blow on the head of Tunu Miah and other accused persons also joined in the assault and the victim Saidur Rahman after receiving the sulfi blow on the left side of his chest ran to the courtyard of the house from the back of the pond and succumbed to his injuries there.

3. The police, being informed, came to the house of the informant and found the dead body lying on the courtyard of the house and prepared inquest report, seized alamats, blood and then after examining the witnesses submitted charge sheet under sections 147/ 148/ 149/ 323/ 324/ 326/ 302/ 427/ 34 of the Penal Code against the petitioners and others.

4. Thereafter, the learned Additional Sessions Judge framed charge against the petitioners and 8 others under the aforesaid sections. During the trial the prosecution examined as many as 12 witnesses and the defence examined only 1 witness and after the trial, learned Additional Sessions Judge acquitted 7 accused from the charges but convicted the petitioners and sentenced them to suffer rigorous imprisonment and pay fine as stated earlier.

5. Mr. M. A. Gaffar, the learned Advocate appearing for the petitioners with the leave of Court, submits that neither the trial Court nor the High Court Division took into consideration the fact that there are major contradiction and omission in the evidence of all the witnesses and that the prosecution have failed to prove the time, manner and also the place of occurrence by evidence and moreover the place of occurrence has also been shifted from the back of the pond to the courtyard of the house. Further, the trial court as well as the High Court Division failed to take into consideration that all the prosecution witnesses are closely related to each other and not a single impartial witness came to support the prosecution case at trial even though P.W 4 stated that about 1000/-1500 persons gathered at the place of occurrence. Regarding the prayer for bail, Mr. Gaffar has submitted that the petitioner No. 1 voluntarily surrendered on 9.10.96 and since then he is in custody and was never granted bail by any court and in terms of provision of section 34A of the Code of Criminal Procedure as maneded, since the petitioner No. 1 has already suffered imprisonment for most of the period of sentence and only few months are left and that the petitioner No. 2 whose sentence was reduced from 5 years to 4 years by the High Court Division was all along on bail during the pendency of the appeal and as such he may also on enlarged on bail till hearing of the leave petition.

6. Considering the above submissions, the leave is granted. Preparation of paper book is dispensed with as prayed for. Let the accused-petitioner. 1 Samar uddin 2. Asrat alias Asarat Ali, both sons of Modaris Ullah of village Goyghar, P.S. and District Moulavibazar be enlarged on bail to the satisfaction of the Deputy Commissioner, Sylhet for a period of 6 (Six) months from date.

Source : III ADC (2006) 416.

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