The State Vs. Md. Abdur Rahim

Appellate Division Cases

(Criminal)

PARTIES

The State …………………..Petitioner.

-Vs-

Md. Abdur Rahim…………………. Respondent.

JUSTICES

Md. Ruhul Amin C.J

M. M. Ruhul Amin J

Md. Tofazzul Islam J

Md. Hassan Ameen J

Judgment Dated: 19th April 2007

The Code of Criminal Procedure, Section 374

The Penal Code. Section, 302

It appears that the unnatural death of the deceased has not been challenged by the accused-respondent but his complicity had been heavily challenged. Trial Court found to have relied upon the evidence of private Pws. specially the Pws. 1-3 and 10 impleading the accused but none of them found to have said about this important fact in their statement under Section 161 of the Code of Criminal Procedure as is evident from the deposition of the investigating officer (Pw. 14) inasmuch as the statement of Pw. 10 was not recorded under Section 161 of the Code of Criminal Procedure by the investigating officer. So, it appears that the High Court Division has correctly left out their evidence from consideration in order to avoid embellishment …………….(9)

On perusal of the impugned judgment of the High Court Division, we are of the view that there is no such infirmity in the judgment, calling for interference. The present petition is out of time by 5 days and the petitioner is found to have not taken any step for condonation of delay. The evidence on record found to have been correctly sifted ………….(10)

In the result, there being no substance in this criminal petition, the same is accordingly dismissed………………. (11)

Golam Kibria, Deputy Attorney General,instructed by B. Hossain, Advocate-on Record ………………….For the Petitioner.

Probir Neogi, Advocate, instructed by Md. Sazzadul Hue/,Advocate-on-Record ……………………………….For the Respondent

Criminal Petition For Leave To Appeal No.253 of 2004

(From the judgment and order dated 10-032004 passed by a Division Bench of the

High Court Division in Death Reference No.27 of 2002 with Criminal Appeal No.2159 of 2002 and Jail Appeal No.405 of 2002.)

JUDGMENT

Md. Hassan Ameen J : This criminal petition for leave to appeal is directed against the judgment and order dated 1 003-2004 passed by a Division Bench of the High Court Division in Death Reference No.27 of 2002 (heard with Criminal Appeal No.21 59 of 2002 and Jail Appeal No.405 of 2002).

2. The Reference under Section 374 of the Code of Criminal Procedure was made by the learned Additional Sessions Judge. Sirajganj for confirmation of the sentence of death awarded to the condemned-prisoner, Abdur Rahim alias Panta convicting him under Section 302 of the Penal Code and sentencing him to death in Sessions Case No.44 of 1999 by the judgment and order dated 28-07-2002 and the appeals (one regular appeal and one jail appeal) were preferred by the condemned-prisoner against the said judgment and order of conviction and sentence. The Reference and appeals were heard together and disposed of by a single judgment of a Division Bench of the Hitzh Court Division.

3. The prosecution case, in brief, is that on 21-06-1998 at about 4.00 p. m. while the

informant (Pw. 1) Shahnaj Parvm Meghana was sitting with her sons and niece on the stair of the east facing dwelling hut of their house at village Alokdia, condemned-prisoner Md. Abdur Rahim alias Panta came and called away her son, the deceased (Mostafa Kamal alias Mithu) towards south on the plea of giving him sugarcane. Sometime, thereafter, Mithu was found lying in the nearby sugarcane field. The face of the deceased

was mudded and neck was wrapped by sugarcane leaves. Pw.6, Habibur Rahman, brother of father-in-law of informant brought the body of Mostafa Kamal alias Mithu to the courtyard of their house. A village doctor Sanwar (Pw.7) was called who declared Mithu dead after examining him. The informant, thereafter, made a G. D. entry at 01.15 a. m. with Sirajganj Police Station against the condemned-petitioner whereupon the officer-m-charge of the Police Station came to her house and recorded the FIR; and sent it to the

Police Station for starting regular case. The police took up investigation and on completion thereof submitted charge sheet against the condemned-prisoner since

pnma-facie case was made out against him under Section 302 of the Penal Code.

4. The case record ultimately came to the file of the trial Court (Additional Sessions Judge) who on the basis of materials on record framed charge under Section 302 of the Penal Code against the accused to which he pleaded not guilty and demanded trial. The defence case as it appears from the trend of cross-examination of the accused is total denial and inter-alia is that he has been falsely implicated at the instance of the local Union Parishad Chairman, Abdul Bari Hawlader, a close relation of the informant, with whom the accused had enmity as he worked in favour of his (Chairman) rival candidate

in last election.

5. The prosecution examined 16 Pws. all of whom were cross-examined by the defence. The defence did not examine any witness.

6. The trial Court in consideration of the facts and circumstances of the case as well as evidence on record, found the accused guilty for the offence charged and convicted and sentenced the accused to death.

7. Being aggrieved, the accused preferred appeals. The High Court Division heard the Reference and the appeal together rejected the Reference and the appeals were allowed by a Division Bench of a High Court Division. Hence, the State as appellant has come up with the present leave-petition.

8. We have heard the learned Deputy Attorney General and perused the materials on record.

9. It appears that the unnatural death of the deceased has not been challenged by the accused-respondent but his complicity had been heavily challenged. Trial Court found to have relied upon the evidence of private Pws. specially the Pws. 1-3 and 10 implcadmg the accused but none of them found to have said about this important fact in their statement under Section 161 of the Code of Criminal Procedure as is evident from the deposition of the investigating officer (Pw. 14) inasmuch as the statement of Pw. 10 was not recorded under Section 161 of the Code of Criminal Procedure by the investigating officer. So it appears that the High Court Division has correctly left out their evidence from consideration in order to avoid embellishment. It is also evident from the record that prior to present FIR. of the case a G.D. was made with local Police Station, on the basis of which-, the officer-in-charge (Pw. 14) came to the house of the informant when the letter reported the occurrence which was reduced to writing and thereafter sent to Thana for starting regular a case. The said G.D. Entry was not brought on record as exhibit though in fact the same ought to have been treated as FIR. Lastly, there is nothing in the four corners of the evidence that the condemned-prisoner was .seen with the deceased immediately before the incident.

10. On perusal of the impugned judgment of the High Court Division, we are of the view that there is no such infirmity in the judgment, calling for interference. The present petition is out of time by 5 days and the petitioner is found to have not taken any step for condonation of delay. The evidence on record found to have been correctly sifted.

11. In the result, there being no substance in this criminal petition, the same is accordingly dismissed.

Source : V ADC (2008), 263

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