Appellate Division Cases
(Criminal)
PARTIES
The State ……………….. Appellant. (in both appeals)
-Vs-
Ratan Khan and others ……………. Respondents. (in both appeals)
JUSTICES
Md. Ruhul Amin CJ
M.M. Ruhul Amin J
Md. Abdul Matin J
Judgment Dated: 2nd October 2007
The Penal Code, Section 302/34/109
Step mother of the deceased stated that the deceased took Tk.2100/- from his father and gave the same to the accused persons on the assurance of getting him passed in the Madrasa Examination. But the accused persons were not successful in this respect. As a result the deceased demanded back the money from them. A salish was held over the matter but the respondents did not agree to the terms of the salish. On the day of occurrence the respondent Azahar Mridha came to the house of the deceased and on the plea holding a sal-ish took him with them and went to the nearby kalai (a kind of pulses) field. Thereafter, deceased Mojibor did not come back and subsequently his dead body was found in a nearby Jungle.P.VV.7, Asia Begum is grand-mother of the deceased. She stated that the accused persons took Tk.21007- from the deceased on the plea getting him passed in the Madrasa Examination but they were not successful in the matter and the deceased demanded back the money from accused persons who did not refund the money. On the day of occurrence accused Azahar Mridha came to the house of the deceased and took the deceased with him and thereafter the dead body ………….(8)
In the opinion of the Doctor, the cause of death of the deceased was due to injuries noted above which were homicidal and ante-mortem in nature. ……………..(12)
From our above discussion we are of the view that the prosecution has been able to prove that accused Azahar Mridha called away the deceased from the latters dwelling house on the day of occurrence and subsequently the dead body of the deceased was found in a jungle near Munshirhat. Accordingly accused Azahar Mridha is found guilty under section 302/109 of the Penal Code and he is convicted thereunder and sentenced to suffer imprisonment…………………. (16)
We have carefully examined the evidence of the prosecution witnesses. There is no incriminating materials against the appellants (1) Ratan Kha, Son of late Abdul Aziz Kha, (2) Nasir Howlader, Son of Nagar AH Howlader respondents in Criminal Appeal No.43 of 2000. Some of the prosecution witnesses even did not utter their names. Since there is no reliable and cogent evidence against them, the High Court Division rightly acquitted them. Criminal Appeal No.43 of 2000 is thus dismissed ………………….(18)
Mohammad AH Akanda, Deputy Attorney General, instructed by A4vi. Md. Wahidullah, Advocate-on-Reeord………………….. For the Appellants (in both appeals)
Respondents (in both appeals)……………………… E.xparte.
Criminal Appeal Nos.43-44 of 2000
(From the judgment and order dated 14.06.1995 passed by the High Court Division in Criminal Appeal Nos.1740 & 1751 of 1992 respectively.)
JUDGMENT
M. M. Ruhul Amin J: These two appeals by leave are directed against the common
judgment and order dated 14.06.1995 passed by a Division Bench of the High Court Division in Criminal Appeal Nos.1740 & 1751 of 1992 allowing both the appeals.
2. Prosecution case, in brief, is that the victim Majibur Rahman was a student of a local Madrasa. Accused Salim and Illias received a sum of Tk.2100/- from him on the assurance of getting him passed in the Dakhil Examination. But they could not get him passed in the said examination. Therefore, Majibur Rahman demanded back the money from them. Over the same matter relation between them became strained and inspite of a salish the money was not recovered. On 12.12.1991 at about 9.00 A.M. in the morning accused Azahar, brother-in-law of accused Salim went to the dwelling house of victim
Majibur Rahman and called him out of the house to talk about payment of money by
those accused persons by holding another salish and took him to the southern side of the house in the kalai (a kind of pulses) field. Thereafter. Majibur Rahman came back to his house and at about 2.00 RM. to 3.00 RM. again went out of the house and proceeded towards Munshir hat along with accused Azahar but he did not return home and subsequently his dead body was recovered from a jungle and an IJ.D, Case was started by the police and after postmortem examination over the dead body of the deceased the case was started. The police on completion of investigation submitted charge sheet under section 302/34 of the Penal Code.
3. Defence plea was one of innocence and false implication.
4. The prosecution examined 19 witnesses in the case. The trial Court on consideration of the materials on record convicted accused Salim, Azahar and Nasir under section 302/34 of the Penal Code and sentenced each of them to suffer imprisonment for life and to pay a fine of Tk.5,000/- in default to suffer rigorous imprisonment for 3 months more. They
were also convicted under section 201 of the Penal Code and each of them was sentenced to suffer 3 years rigorous imprisonment and to pay a fine of Tk.1000/- in default to suffer rigorous imprisonment for 3(three) months more. Both the sentences were to run concurrently. The trial Court also convicted accused Ratan under section 201 of the Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Tk.1000/- in default to suffer rigorous imprisonment for one month more. Being
aggrieved, the convicts Ratan and Nasir filed Criminal Appeal No. 1740 of 1992 and convicts Salim and Azahar filed Criminal Appeal No. 1751 of 1992. The High Court Division by the impugned judgment allowed both the appeals and acquitted the convict-appellants.
5. Leave was granted to consider the submission that in view of the statements of P.Ws.6, 10 and 11 that the accused Azahar called the deceased from his house and took him with them for refunding money and thereafter the dead body of the victim was recovered, the High Court Division erred in law in acquitting the accused persons and the further submission that the High Court Division acted illegally in acquitting the accused respondents without referring to and considering the evidence on record causing serious miscarriage of justice.
6. We have heard Mr.. Mohammad Ali Akanda, the learned Deputy Attorney General for the appellants in both the appeals and perused the judgment of the High Court Division and other connected papers.
7. Criminal Appeal No.44 of 2000 has been preferred by the appellants Selim Bepan @ Anowar Hossain Selim, Son of Siddique Bepan and A/ahar Mridha, Son of Ali Mridha @ Ah Ahmed Mridha.
8. Let us now see whether the prosecution has been able to prove the case against the respondents. P.W.I, Sikder Humayun Kabir, O.C. Palorjg Police Station recorded the case on receipt of written ejahar from S.I. Md. Ali Haider Sheikh. He is therefore a formal witness. P.W.2 lodged the F.I.R. and also held, inquest over the dead body of the deceased. P.W.3, Md. Abdul Hai Sarder, a local dafadcr. P.W.4, Abdur Ra//ak Mollah, P.W.5. Nur Ismail Gazi did not say anything regarding involvement of the respondents in the case. P.W.6, Alca Begum, step mother of the deceased stated that the deceased took
Tk.21()0/- from his father and gave the same to the accused persons on the assurance of getting him passed in the Madrasa Examination. But the accused persons were not successful in this respect. As a result the deceased demanded back the money from them. A salish was held over the matter but the respondents did not agree to the terms of the salish. On the day of occurrence the respondent Azahar Mridha came to the house of the deceased and on the plea holding a salish took him with them and went to the nearby kalai (a kind of pulses) field. Thereafter, deceased Mojibor did not come back and subsequently his dead body was found in a nearby Jungle. P.W.7, Asia Begum is
grand-mother of the deceased. She stated that the accused persons took Tk.2100/from the deceased on the plea getting him passed in the Madrasa Examination but they were not successful in the matter and the deceased demanded back the money from accused persons who did not refund the money. On the day of occurrence accused Azahar Mridha came to the house of the deceased and took the deceased with him and thereafter the dead body of the deceased was found in a Jungle. P.W.8, Jatindra Nath Mondal, Medical Officer, Sadar Hospital, Sariatpur who was one of the members of the Medical Board holding post-mortem examination over dead body of the deceased, in his evidence stated
that they found the following injuries on the person of the deceased:
1. One abrasion ,on the face below right ear measuring about Vi” in diameter. 2. One bruise exending from right side of the face to frontal right of the base measuring about 1XA” bought X Vi ” and lying obliquely. 3. One bruise extending over the
right side of the face & right parietal and frontal region of the head lateral to the injury No.2 measuring about 5″ length X Vi ” breadth. 9. All the above noted injuries were
caused by blunt weapons.
10. On extensive dissection of tissues in and around the injures were found congested and extravestated blood and blood clot resisted washing.
11. All the injuries were ante mortem in nature.
4. One abrasion with continuous ligature mark was present in the middle aspect of the back on enterior and lateral aspects. Legature mark was due to postmortem hanging.
12. In the opinion of the Doctor, the cause of death of the deceased was due to injuries noted above which were homicidal and antc-mortem in nature.
13. P.W. 12 Abdus Salam Bepari stated that on the day of occurrence while he was working in his land, he saw the deceased going with accused Azahar towards
Munshirhat and subsequently deadbody of the deceased was found in the nearby Jungle. P.W. 15, Abdur Rahman Sikder stated that on the day of occurrence he was going to his father-in-law’s house and on the way he saw accused Azahar and deceased Mojibor going towards Munshirhat Bazar and subsequently the deadbody of the deceased was found in
nearby Jungle.
14. These witnesses did not say anything regarding involvement of respondent Selim Bepari @ Anwar Hossain Selim.
15. Therefore, in the facts and circumstances of the case and the materials on record, we are of the view that the prosecution has not been able to prove the case against accused Selim Bepari @ Anwar Hossain Selim, Respondent No.l in Criminal Appeal No.44 of 2000 and he is accordingly acquitted. The appeal as against him is dismissed.
16. From our above discussion we are of the view that the prosecution has been able to prove that accused Azahar Mridha called away the deceased from the latters dwelling house on the day of occurrence and subsequently the dead body of the deceased was found in a jungle near Munshirhat. Accordingly accused Azahar Mridha is found guilty under section 302/109 of the Penal Code and he is convicted thereunder and sentenced to suffer imprisonment for life. Criminal Appeal No.44 of 2000 so far same relates to
Azahar Mridha accordingly allowed in part.
17. Respondent No.2 Azahar Mridha, Son of Ali Mridha @ Ali Ahmed Mridha is directed to surrender to his bail bond to serve out the remaining period of sentence.
18. We have carefully examined the evidence of the prosecution witnesses. There is no incriminating materials against the appellants (1) Ratan Kha, Son of late Abdul Aziz Kha, (2) Nasir Howlader, Son of Nagar Ali Howlader respondents in Criminal Appeal No.43 of 2000. Some of the prosecution witnesses even did not utter their names. Since there is no reliable and cogent evidence against them, the High Court Division rightly acquitted
them. Criminal Appeal No.43 of 2000 is thus dismissed.
Source : V ADC (2008),439