Appellate Division Cases
(Criminal)
PARTIES
The State …………….. Petitioner
-Vs-
Abdus Sattar and others………………… Respondents.
Md. Ruhul Amin CJ
M. M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Hassan Ameen J
Judgment Dated: 3rd April 2007
The Code of Criminal Procedure, Section 374
The prosecution case, in brief, is that on 29-04-1995 deceased Masud Ahmed son of informant Shamsuddin Ahmed, a Member of the Parliament, went to Shibpur in connection with business along with his friend Abdul Baten in a motorcycle. After conclusion of his business while the deceased was coming back in same motorcycle at about 10 a.m. they reached at cross road junction at Drahnandi of Narshingdi town when the appellants namely (1) Abdus Sattar (condemned prisoner), (2) Mohsain Hossain Bidyut, (3) Ahadul, (4) Hasan, (5) Abdur Rahman alias Khokan, (6) Nazrul and absconding convict (7) Alamgir being armed with deadly weapons attacked them…………………….(3)
In the instant case, it appears that the informant, who lodged the FIR. long after more than 24 hours alleged that he heard the occurrence from his son, the deceased at Narshingdi hospital on the date of occurrence. In this connection it may be recalled here that the attending physicians at Narshingdi hospital or the persons, who were allegedly present at hospital have not said about any dying declaration allegedly made by the deceased. Furthermore, inquest report, which was prepared at Dhaka in presence of near and dear ones of the deceased namely Pws.4, 9 and 10 did not state anything about the alleged dying declaration so said to have been made by the deceased at Narshingdi hospital. Further, it appears that there is no corroborative evidence about the alleged report of the occurrence to the informant (Pw. 1) by way of dying declaration. We have already found that the Pws.4, 9 and 10 who were all along present with the deceased up to Dhaka Medical College Hospital in no way dared to state about the alleged dying declaration so said to have been made by the deceased. In view of such facts and circumstances of the case, we are of the opinion that the learned Judges of the Division Bench of the High Court Division correctly arrived at a decision that the story of dying declaration is false and concocted……………………………… (17)
The prosecution having failed to come with any reasonable explanation for such inordinate delay and the same led us to hold that the FIR. lodged by the informant, father of the deceased was brought to light just to manufacture a false case to take revenge upon the enemies ……………………….(18)
The non-examination of Baten, the alleged companion of the deceased at the time of occurrence together with non-production of motorcycle on which the deceased along with his friend Baten was allegedly traveling has made the entire prosecution story unworthy to believe. More so, Pws. 4, 9, and 10, the close relations of the deceased, who were all along with him (deceased) remained meticulously silent about the dying declaration said to have been made by the deceased………………………. (19)
Since, there is no substance in this petition, we find no other alternative but to dismiss the same and accordingly, this petition for leave to appeal is dismissed ……………(22)
Golam Kibria, Deputy Attorney General, instructed bv Mr. B. Hossain, Advocate-on-Record ……………………….For the Petitioner
Respondents………………………….. Not represented.
Criminal Petition For Leave To Appeal No. 181 of 2004
(From the judgment and order dated 11-042004 passed by the High Court Division in
Death Reference No.37 of 2001 with Criminal Appeal No.3199 of 2001 and Jail Appeal No.3331 2001).
JUDGMENT
Md. Hassan Ameen J: This criminal petition for leave to appeal is directed against the judgment and order passed by a Division Bench of the High Court Division on 11th April, 2004 in Death Reference No.3 7 of 2001 (heard along with Criminal Appeal No.3199 of 2001 and Jail Appeal No.3331 2001).
2. The reference under Section 374 of the Code of Criminal Procedure was made by the learned Additional Sessions Judge, Narshingdi for confirmation of sentence of death awarded by him by the judgment and order dated 26-08-2001 in Sessions Case No.56 of 1995 to condemned prisoner, Abdus Sattar upon convicting him under Sections 302/34 of the Penal Code. The Court of Sessions by the selfsame judgment upon convicting 6 others under Sections 302/34 of the Penal Code sentenced them to imprisonment for life and to pay fine of Tk. 10,000/- each, in default, to suffer one year rigorous imprisonment.
Criminal Appeal being No.3199 of 2001 was preferred by all the convicts including
the condemned prisoner except the absconding convict Alamgir and Jail Appeal No.3331 of 2001 was preferred by the condemned-prisoner-appellant alone against the said judgment and order of conviction. The Reference and the appeals were heard together and disposed of by a single judgment of a Division Bench of the High Court Division.
3. The prosecution case, in brief, is that on 29-04-1995 deceased Masud Ahmed son of informant Shamsuddin Ahmed, a Member of the Parliament, went to Shibpur in connection with business along with his friend Abdul Baten in a motorcycle. After conclusion of his business while the deceased was coming back in same motorcycle at about 10 a.m. they reached at cross road junction at Drahnandi of Narshingdi town when the appellants namely (1) Abdus Sattar (condemned prisoner), (2) Mohsin Hossain Bidyut, (3) Ahadul, (4) Hasan, (5) Abdur Rahman alias Khokan, (6) Nazrul and absconding convict (7) Alamgir being armed with deadly weapons attacked them. The aforesaid accused stopped the motorcycle of the deceased when absconding convict
Alamgir and convict appellant, Abdur Rahman alias Khokan grabbed deceased Masud, appellant Nazrul gave blow by the handle of a gun to Baten, who being frightened ran away therefrom. Thereafter, the convict appellants Mohsin Hossain Bidyut and Ahadul struck dao blow on the head and right elbow of the deceased causing bleeding injuries and as a result, he fell down on the ground. The condemned-prisoner-appellant Abdus Sattar fired a gun shot upon the deceased while the other accused- appellants caused
injuries on different parts of the body of the deceased and left the place of occurrence
hurriedly. The Pws. namely Badal Sarker, the security officer-in-charge of local Jaba Textile Mill, took the deceased by a rickshaw to Narshingdi Sadar Hospital wherein he made a dying declaration to the persons present there narrating the occurrence and disclosing the names of the condemned prisoner as well as other convicts as his assailants. The further case of the prosecution was that the condition of the deceased being serious the doctor on duty referred him to Dhaka Medical College Hospital for better treatment, but the doctor of the emergency department of the Dhaka Medical College Hospital declared him dead.
4. On the next day i. e. 30-04-1995 at 5 p. m, the informant (father of the deceased) sent a written FIR. to Narshingdi Police Station mentioning names of the accused-persons, and on the basis thereof regular police case was started. The police took up investigation and on completion of investigation, submitted charge- sheet against the accused-appellants and another under Sections 302/34 of the Penal Code. The case records were sent to the Court of Sessions. At the time of trial, Court of Additional Sessions Judge, Narshingdi on
the basis of materials available on the record, framed charge against the accused-appellants and another under Sections 302/34 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 as many as 16 Pws. including the doctor, who held post-mortem examination and investigating officer, who were duly cross-examined by the defence.
6. After close of the examination of the prosecution witness, the accused on dock were examined under Section 342 of the Code of Criminal Procedure and they pleaded their innocence.
7. The defence did not adduce any evidence.
8. The defence case as could be gathered from trend of cross-examination is total denial and their case is that the deceased did not sustain any injury on the date, at time and place and in the manner as alleged by the prosecution, nor the deceased ever made any dying declaration as alleged, but they have been falsely implicated in the case out of enmity and
grudge.
9. The trial Court, in consideration of the evidence on record as well as facts and circumstances of the case, found the accused-appellants and another guilty for the offence charged and thereupon convicted as stated before and sentenced them to suffer rigorous imprisonment as mentioned above.
10. The Court of Additional Sessions Judge made reference for confirmation of the sentence of death so awarded to the condemned prisoner, Abdus Sattar. The other convicts aggrieved and dissatisfied with their conviction and sentence preferred the appeal before the High Court Division. The condemned prisoner filed appeal from Jail. The Reference and the appeals were heard together. The High Court Division rejected the Reference and allowed the appeals.
11. We have perused the materials in the paper book. We have also heard the learned Deputy Attorney General.
12. The High Court Division upon elaborate discussion of the evidence on record arrived at a conclusion that the trial Court failed to sift the evidence on record and arrived at a erroneous conclusion and thereupon rejected the death reference in question and allowed the criminal appeal and jail appeal.
13. Being aggrieved and dissatisfied thereby the State as appellant has filed the present petition for leave to appeal.
14. The learned Deputy Attorney General submitted that the findings and decisions of the High Court Division is bad in law since it failed to sift the evidence on record. He further submits that High Court Division erroneously disbelieved the evidence of Pws. specially that of Pws. 4, 9, and 10 and that the findings and decisions of the High Court Division, so far, it relates to dying declaration is not at all sustainable in law and accordingly, he
submits that the impugned judgment and order of acquittal is not sustainable in law.
15. In the instant case, it appears that prosecution tried to bank upon the alleged dying declaration of the deceased together with evidence of alleged eyewitness to the occurrence. As regards, dying declaration, we are of the view that the same (dying declaration) is oral and the prosecution tried to prove same by some private witnesses.
16. Section 32 of the Evidence Act provides that dying declaration may be written
or verbal. A dying declaration may be recorded by any person, who is available and it may be verbal, it may be also indicated by signs and gesture, in answer to question, if the person making it is not in a position to speak. There is no requirement of law that dying declaration should be recorded by Magistrate as in the case of confessional statement of a accused under Section 164 of the Code of Criminal Procedure. The legislature in its wisdom has put a dying declaration at per with evidence on oath for simple reason that a man under the apprehension of death is not likely to speak falsehood and involve innocent persons in preference to his assailants.
17. In the instant case, it appears that the informant, who lodged the FIR. long after more than 24 hours alleged that he heard the occurrence from his son, the deceased at Narshingdi hospital on the date of occurrence. In this connection it may be recalled here that the attending physicians at Narshingdi hospital or the persons, who were allegedly present at hospital have not said about any dying declaration allegedly made by the deceased. Furthermore, inquest report, which was prepared at Dhaka in presence of near and dear ones of the deceased namely Pws.4, 9 and 10 did not state anything about the alleged dying declaration so said to have been made by the deceased at Narshingdi hospital. Further, it appears that there is no corroborative evidence about the alleged
report of the occurrence to the informant (Pw. 1) by way of dying declaration. We have already found that the Pws.4, 9 and 10 who were all along present with the deceased up to Dhaka Medical College Hospital in no way dared to state about the alleged dying declaration so said to have been made by the deceased. In view of such facts and circumstances of the case, we are of the opinion that the learned Judges of the Division Bench of the High Court Division correctly arrived at a decision that the story of dying declaration is false and concocted.
18. Secondly, it appears that the FIR. was lodged long after more than 24 hours of the time of occurrence and prosecution failed to come with any explanation for such inordinate delay inasmuch as the evidence on record indicates that the police officers including the Superintendent of Police Narshingdi, visited the house of the informant (since he was local M.P,) and stayed with him for quite reasonable period and admittedly, the informant did not make any formal FIR. before them. The long delay in lodging the FIR. after more than 24 hours, in our view, has been taken in order to bolster up a false case to take revenge upon the rivals. Since investigation commenced before lodging of formal FIR, the same ought to have been treated as statement under Section 161 of the
Code of Criminal Procedure as the information so made during conversation with
the police officials after the occurrence could have been the FIR of this case. The prosecution having failed to come with any reasonable explanation for such inordinate
delay and the same led us to hold that the FIR. lodged by the informant, father of the deceased was brought to light just to manufacture a false case to take revenge upon the enemies.
19. Thirdly, the non-examination of Baten, the alleged companion of the deceased at
the time of occurrence together with nonproduction of motorcycle on which the
deceased along with his friend Baten was allegedly traveling has made the entire
prosecution story unworthy to believe. More so, Pws. 4, 9, and 10, the close relations of the deceased, who were all along with him (deceased) remained meticulously silent about the dying declaration said to have been made by the deceased.
20. Lastly, the postmortem examination report, in proof where of the doctor (pw. 11) who deposed in no way support the prosecution case about manner of causing injury to the deceased by gunshot. Pw.3 who claimed to have shifted the deceased to Narshingdi hospital in no way gave any hints about dying declaration allegedly made by the deceased.
21. Regard being had to the above facts and circumstances of the case, we arc constrained
to hold that the prosecution bolstered up a false case in order to take revenge on the enemies by narrating some unusual facts which has not been proved. Lastly, we find no hesitation to hold that the prosecution hopelessly failed to prove its case by reliable witness and the prosecution has come to with ill motive to take revenge upon the accused and the delay is lodging the FIR. together with failure to prove the occurrence by good and satisfactory evidence as well as with holding of alleged companion of the deceased,
who was with him (deceased) at the time of occurrence has made the entire prosecution
case unworthy to believe and the learned Judges of the High Court Division found to have arrived at a correct decision on the basis of established principle of law.
22. Since, there is no substance in this petition, we find no other alternative but to dismiss the same and accordingly, this petition for leave to appeal is dismissed.
Source : V ADC (2008), 158