IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CRIMINAL REVISIONAL JURISDICTION)
CRIMINAL REVISION NO. OF _________
IN THE MATTER OF:
An application for bail.
IN THE MATTER OF:
Village – Kharia
Police Station- Shibpur
2. The State
IN THE MATTER OF:
Order being No. 2 dated 8.06.08 passed by Mr. Md. Abul Hossain Khan, Learned Session Judge, Narsingdi in Criminal Appeal No. 26/08 disallowing the petition of condonation of delay and thereby rejection of the admission of appeal for judgment and order being dated 26.05.1998 passed by Mr. Md. Kutub Uddin, 1st Class Magistrate, Narsingdi in C.R. Case No. 184/1996 (Shibpur) convicting the convict-petitioner under section 4 of the Dowry Prohibition Act, 1980 and sentencing him to suffer rigorous imprisonment for 1 (one) year and 6 (six) months.
IN THE MATTER OF:
Order being No. 1 dated 29.01.2009 passed by Mr. Md. Abul Hossain Khan, Learned Session Judge, Narsingdi in Criminal Appeal No. 5/09 rejection of appeal for being not pressed.
Mr. Justice M. M. Ruhul Amin, the Honourable Chief Justice of the Supreme Court of Bangladesh and His companion Justices of the said Honourabe Court.
The humble petition of the above named convict-petitioner most respectfully –
1. That the convict/petitioner (the “petitioner”) preferred the appeal against judgement and order dated 26.05.1998 passed by Mr. Md. Kutub Uddin , 1st Class Magistrate, Narsingdi in C.R. Case No. 184/1996 (Shibpur) under section 4 of the Dowry Prohibition Act, 1980 convicting and sentencing the appellant-petitioner for 1 (one) year and 6 (six) months rigorous imprisonment.
2. That the complainant/opposite party (the “opposite party”) filed the C.R. Case No. 184/1996 under section 4 of the Dowry Prohibition Act, 1980 against the petitioner alleging inter alia that the petitioner demanded 50,000.00 (fifty thousand) taka on the date of alleged offence from the respondent at her home and upon refusal the petitioner got angered and took away their 3 (three) years old daughter and left away the opposite party at her father’s home.
3. That the petitioner was placed on trial before the Court of Learned 1st Class Magistrate, Narsingdi in the C.R. Case No. 184/1996 dated 16.10.1996 under Section 4 of the Dowry Prohibition Act, 1980 and after completion of the trial the learned 1st Class Magistrate found the petitioner guilty under Section 4 of the Dowry Prohibition Act, 1980 and sentenced him to suffer rigorous imprisonment for 1 (one) year and 6 (six) months.
4. That the petitioner contends inter alia that the opposite party insisted the petitioner to live separately from his parents. But the petitioner vehemently refused such claim and determined to live with his old aged parents. The opposite party some times threatened petitioner to divorce and file false cases, if her demand is not fulfilled. Finally when the opposite party found that her demand was not going to be fulfilled, she filed the Case under section 4 of the Dowry Prohibition Act, 1980 for harassment of the petitioner. The petitioner never demanded the alleged dowry on the date of alleged offence or in any other date.
5. That the petitioner consulted with his lawyer just after the conviction. His lawyer advised him not to file the appeal against the said conviction. The lawyer told the petitioner that he would not get any benefit in the appeal. The petitioner relied on wrong advice of his lawyer and refrained from preferring the appeal. Moreover, he did not get the conviction-warrant till arrest on 15.05.2008. The police arrested the petitioner on 15.05.2008 from his village home in connection with the said C.R. case and the petitioner came to know that the conviction-warrant was issued against him since passing the judgment.
6. That the petitioner consulted the learned advocate through his tadbirkar and instructed him to file an appeal against the conviction. The concerned lawyer informed him that the L.C.R. could not be found and without having the certified copy of the judgment, the appeal could not be filed. Thereafter, the petitioner raised an allegation through the Deputy Jailer against the said lawyer to the President of the Narsingdi District Bar. He alleged that he paid the fees of 8000.00 (eight thousand) taka to that lawyer for preparation and preferring the appeal but he failed to take any step in that regard.
7. That subsequent to his arrest on 15.05.2008, the petitioner engaged another lawyer through the tadbirkar. The said lawyer filed a memo of appeal on 29.05.08 together with an application for condonation of delay. He drafted the memo of appeal very negligently and without having any conference and consultation with the petitioner or his tadbirkar. Even he failed to mention the actual ground mentioned in paragraph Nos. 4 and 5 for condonation of delay.
8. That in addition to the negligence and wrong advice of the said lawyers, the learned Session Judge drew a wrong factual observation. He mentioned in his order, “It is fact that the accused had knowledge about the case but he did not face the trial. At the time of trial he was absconded. Trial was completed in absentia.” But in fact, the petitioner faced the trial and he was examined u/s 342. Only the judgment was pronounced in absentia on 26.05.1998. The learned Session Judge rejected the condonation of delay application and accordingly rejected the appeal being order No. 2 dated 08.06.2008.
9. That the lawyer did not communicate the order being No. 2 dated 08.06.2008 to the petitioner. The petitioner thought that the said lawyer did not proceed with the appeal application.
10. That finally, the petitioner appointed another lawyer through the tadbirkar on 25.01.2009 and the lawyer obtained the certified copy of the judgment on 28.01.2009 and the learned lawyer filed a memo of appeal being Criminal Appeal no. 5/09 together with the condonation of delay petition. But after the filing of the said memo, it was revealed to the lawyer that there was a memo of appeal was filed and rejected earlier. Then the learned Lawyer having being informed about said rejection by the concerned department, not pressed that memo of appeal.
11. That the petitioner was arrested on 15.0.2008 and he already passed about 11 (eleven) months in rigorous imprisonment out of 1 ½ years’ sentence.
12. That the petitioner is quite innocent and he has been implicated in this case out of harassment only and no disinterested witnesses have been examined to prove the prosecution case.
13. That in the instant case, the prosecution miserably failed to prove the case beyond reasonable doubt and as such this is a good case for acquittal.
14. That the PW1 failed to support her own case in the cross-examination. She could not tell what type of dowry the petitioner demanded since it was a false case. The PW2 only asserted the hearsay evidence. The PW3 also relies on hearsay evidences. He did not support some of the statements of PW1, e.g. 1st marriage with the elder brother of the petitioner. His memory was so weak that he could not tell the name of the petitioner and brother of the opposite party (PW4). Conviction based on evidence of such dull memory people would be unsafe and unjust. The PW4 did not support the time of alleged offence with the PW1. He asserted that the petitioner used to beat the respondent-opposite party for dowry and sent her to parents’ house in a number of times prior to the alleged offence. But the PW1 neither in her examination-in-chief nor in cross- examination gave such evidences. Moreover, PW4 is the brother of PW1.
15. That the evidences of the witnesses were unsupported by each other and the evidences of the PW1 were not corroborated by other witnesses. Thus the prosecution failed to prove the case beyond reasonable doubt. For conviction, the learned Court must be sure that the alleged offence was occurred.
Wherefore, it is most humbly prayed that your Lordship would be graciously be pleased to allow the petitioner to go on bail on ad-interim bail till disposal of the instant revision and or pass such other or further order or orders as to your Lordship may deem fit and proper.
And for this act of kindness the appellant-petitioner, as in duty bound, shall ever pray.
I, …………………………………, son of …………………………, of village: ………………, P.S.: ………………………, District- ………………., aged about …….years, by occupation ………………….., by faith _____________, by nationality Bangladeshi by birth do hereby solemnly affirm and say as follows:
1. That I am the tadbirkar of the Convict-Appellant/ Petitioner in the above mentioned case and fully conversant with the facts and circumstances of the case and competent to swear this Affidavit.
2. That the statements made in the application are true to my knowledge and belief and in witness whereof I swear this affidavit and signed below on the _________ day of ___________ at _____________ before the Commissioner of affidavit.
|The deponent is known to me and
identified by me.