Md. Abdul Jabber Sarder Vs. Atabuddin and others 2018 (1) LNJ 61

Case No: Criminal Revision No. 2807 of 1991(Dhaka) Criminal Revision No. 36 of 1987(Rangpur)

Judge: Syed Md. Ziaul Karim. J.

Court: High Court Division,

Advocate: Mrs. Sakila Rowshan, Mrs. Sharmina Haque,

Citation: 2018 (1) LNJ 61

Case Year: 2014

Appellant: Md. Abdul Jabber Sarder

Respondent: Atabuddin and others

Subject: Criminal Law

Delivery Date: 2018-02-15

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Syed Md. Ziaul Karim, J

And

Ashish Ranjan Das, J.

Judgment on

21.07.2014

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Md. Abdul Jabber Sarder,

. . .Informant-petitioner

-Versus-

1. Atabuddin and others

…..Accused-opposite parties.

2. The State

. . .Opposite party

Interpretation of statute

It is always to be remembered that justice delivery system cannot be carried away by heinous nature of crime or by gruesome manner in which it was found to have been committed and graver the charge is greater is the standard of proof required.              . . .(14)

Interpretation of statute

A Judge does not preside over a criminal trial merely to see that no innocent person is punished. A Judge, also presides to see that guilty man does not escape. Both are public duties. Law therefore, cannot afford any favour other than truth and only truth.         ...(14)

Evidence Act (I of 1872)

Section 3

We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

(a)   The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

(b)   The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

(c)    In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

(d)   There must be clear and unequivocal proof of the corpus delicit.

(e)    The hypothesis of delinquency should be consistent with all the facts proved.            . . .(15)

Evidence Act (I of 1872)

Section 3

Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence.   . . .(19)

Evidence Act (I of 1872)

Section 3

Law is now well settled that suspicion or doubt however strong it might be cannot take place of evidence or there be slightest doubt asto the involvement of the accused in the crime, they cannot be convicted.     . . . (20)

Code of Criminal Procedure (V of 1898)

Section 439

Generally misappreciation of evidence is never a sufficient ground for interfering with acquittal but the degree and the determinatory effect on the final conclusion for reason of misappreciation of evidence would call for interference.                                      . . .(23)

Code of Criminal Procedure (V of 1898)

Section 439

The power of High Court to order a retrial in a case in which an accused person has been acquitted is unlimited, because it is not circumscribed by any provision of the relevant law. But it must be noted that High Court exercises powers of revision in a markedly more restricted manner in a case of acquittal than one of conviction.                                                           . . .(23)

Code of Criminal Procedure

Section 439

Consideration of factual aspect of the case is the exclusive domain of the Trial Court and the Appellate Court whereas the Revisional Court has limited jurisdiction of considering illegalities or material irregularities allegedly committed by the lower forums. Full weight is to be given to the appreciation of evidence by the trial Court as the said Court has seen and heard the witnesses.            . . . (23)

Code of Criminal Procedure

Section 439

When a person has been acquitted after the entire evidence against him has been considered by a Court of competent jurisdiction, if the High Court orders a retrial, the finding of the High Court would amount almost to one of conviction and in such cases the Court should refrain from ordering a retrial. But where the acquittal has been ordered on a technical ground, setting it aside does not amount virtually to a direction to convict which an order of retrial in a case in which the entire evidence has been considered by the trial Court does. Proper line of approach is not to stress that order of lower Court is final and unassailable but to ascertain that the evidence has been fairly appreciated by the Court below and conclusions reached by it are in accordance with the basic principles of law.                               . . .(23)

Code of Criminal Procedure (V of 1898)

Section 439

Interference in revision under section 439 need not be confined to cases where the order of the Court below is ″ manifestly wrong or  perverse or is based on the view of the evidence which no judicial officer would take. ″ In appropriate cases, even a finding of fact could be disturbed in revision. This would be possible, for instance, where the subordinate Court had wrongly allocated the onus of proof in not applying the correct principles, relating to the appraisal of evidence, or some important piece of evidence had been ignored. The discretion vesting in the High Court under section 439 of the Code, however, has to be exercised in accordance with the dictates of justice and not arbitrarily, or in a fanciful manner. . . . (24)

Code of Criminal Procedure

Section 439

Interference under S 439, Cr.P.C. with an order of acquittal can only be made if it is manifestly wrong, perverse, based on misreading of evidence or on the view which no judicial Officer would take or non-interference with it will result in miscarriage of justice. " . . . (25)

Abdul Haq and others Vs. The State 14 BLT 485; Fazu alias Fazlur Rahman Vs. The State 1 BLC 558; Rekatfullah Vs. The State 13 DLR 750; AIR 1921(PC)69; Safder Ali Vs. Crown 5 DLR (FC) 107; Jananendra Nath Biswas Vs. Mukbul Hossain Sikder 11 DLR 359; Abdur Rashid Vs. Chandu Master 16 DLR (SC) 605; Md. Samiullah Khan Vs. State 15 DLR(SC) 150; Talib Vs. Crown 7 DLR (FC)92 (95); N. Islam Vs. Saifuddin 7 DLR 123 and Jamshed Bakth Vs. “Ameenur Rashid Chowdhury 20 DLR 55 ref.

No one appears,

...For the accused-opposite party nos. 1-9

Mrs. Sakila Rowshan, D.A.AG. with

Mrs. Sharmina Haque, A.A.G. and

Mr. Md. Shorowardi, A.A.G.

. . . For the State-opposite party no. 10

JUDGMENT

Syed Md. Ziaul Karim, J: The accused opposite parties were put on trial in the Court of Sessions Judge, Gaibandah, in Session Case no. 28 of 1986 under sections 147, 302, 34 of the Penal Code.

2.            After trial the learned Judge by the judgment and order dated 29-11-1986 acquitted all the accused.

3.            Feeling aggrieved the informant petitioner preferred the instant Revision and obtained the present Rule.

4.            No one appears on behalf of the petitioner to support the Rule. In view of the facts, this is an old Rule of 1987, we are inclined to take it up for disposal on merit considering the materials on record.

5.            No one appears on behalf of the accused opposite parties to oppose the Rule.

6.            The learned Deputy Attorney General appearing on behalf of the State opposite party opposes the Rule and submits that the learned Judge after considering the materials on record rightly passed the impugned order. She adds that finding of the facts arrived at by the Court below should not be disturbed without any error of law.

7.            In order to appreciate her submissions we have gone through the record and given our anxious consideration to her submissions.

8.            Before deciding the case on merit we shall consider the scope of revision under Section 439 of the Code of Criminal Procedure before this Court.

9.            The learned Sessions Judge recorded the order of acquittal on the following grounds :

Firstly The prosecution witnesses failed to prove the charge against the accused by consistent and corroborative evidence. Moreso, the fact of the case was not proved by evidence.

Secondly: The doctor who held postmortem examination did not examine the dead-body properly and his postmortem report is a perfunctory one;

Thirdly: There was a civil litigation between the parties. So assembly of accused in plot no.247 cannot be treated as unlawful.

10.        We have meticulously examined the grounds taken in the petition of revision.

11.        Now the question calls for consideration whether the aforesaid findings of the Court below are the correct exposition of facts and law, moreso how far the prosecution proved the charge under Sections 147, 302, 34 of the Penal Code against the accused. Such question along with the grounds taken in the petition of Revision should be answered in the following manner:

12.        In approaching and answering to the points drawn up, the cardinal principles of criminal jurisprudence in awarding conviction followed by sentence upon an indicted person demands meditation. A legal survey of law, appraisal of evidence, browsing eye on materials brought on record, analysis of fact and circumstance of the case, inherent infirmities disturbing and striking facts of prosecution case are also required to be taken into consideration. Rival contentions surged forward from both sides shall be also addressed and considered by us.

13.        Fundamental principles of criminal jurisprudence and justice delivery system is the innocence of the alleged accused who should be presumed to be innocent until the charges are proved beyond reasonable doubt on the basis of clear, cogent and credible evidence and that onus of proving everything essential to the establishment of charge against the accused lies upon the prosecution which must prove charge substantially as laid to hilt and beyond all reasonable doubt on the strength of clear, cogent credible and unimpeachable evidence. In a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests on the prosecution and on its failure, it cannot fall back upon the evidence adduced by the accused in support of his defence to rest its case solely thereon. Proof of charge must depend upon judicial evaluation of totality of evidence, oral and circumstantial, and not by an isolated scrutiny. Prosecution version is also required to be judged taking into account the overall circumstances of the case with a practical, pragmatic and reasonable approach in appreciation of evidence.

14.        It is always to be remembered that justice delivery system cannot be carried away by heinous nature of crime or by gruesome manner in which it was found to have been committed and graver the charge is greater is the standard of proof required. It should also bear in mind that if the accused can create any doubts by adducing evidence or cross examining the PWs in the prosecution case, the accused is entitled to get benefit of doubt. It is conveniently observed that though sad, yet is a fact that in our country there is a tendency on the part of the people to rope in as many people as possible for facing trial in respect of any criminal case. It has been even found that innocent person, including aged infirm and rivals, are booked for standing on dock. Some are acquitted by the Court of first instance and some by appellate Court, but only having been in incarceration for years. Such efforts on the part of relatives of victim and other interested persons invariably is done and thus it becomes difficult on the part of a Court to find out the real culprit. Under such circumstances and in view of the prevalent criminal jurisprudential system, a judge is to find out the truth from a bundle of lies and to shift the grain out of chaff. A Judge does not preside over a criminal trial merely to see that no innocent person is punished. A Judge, also presides to see that guilty man does not escape. Both are public duties. Law therefore, cannot afford any favour other than truth and only truth.

15.        We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a)            The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b)            The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c)            In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d)            There must be clear and unequivocal proof of the corpus delicit.

e)            The hypothesis of delinquency should be consistent with all the facts proved.

16.        Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

17.        On going to the evidence on record it transpires that the evidence of all prosecution witnesses suffer from glaring contradictions, inconsistencies and infirmities with all material particulars. There is absolutely no reason to disbelieve the evidence of those competent witnesses having no reason whatsoever to depose falsely against the accused in the particular aspect. The defence extensively cross-examined them and material points have been elicited to support the defence case, thereby their credibility have been shacked in every manner, and the same materially affected the merit of the prosecution. So the evidence of all the prosecution witnesses are vulnerable to the credibility and it is very difficult to believe their testimonies.

18.        Moreover, it is the definite case of the prosecution that there was an internal feud between the parties and when there is a background of enmity and the witnesses are chance witnesses and not natural witnesses and further natural and independent witness were not produced, it is unsafe to rely on the evidence of chance witnesses to make a nexus between the accused and the crime. So we hold that there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.

19.        It further appears to us that the instant case is absolutely a case of no evidence against the accused and the Court below rightly considered such aspect. Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence.

20.        The accused were merely suspected without any legal evidence. To that end in view, law is now well settled that suspicion or doubt however strong it might be cannot take place of evidence or there be slightest doubt asto the involvement of the accused in the crime, they cannot be convicted. With this regard reliance are being placed in the cases of Abdul Haq and others  Vs. The State 14 BLT 485, Fazu alias Fazlur Rahman Vs. The State 1 BLC 558, Rekatfullah Vs. The State 13 DLR-750. It is further held in the case reported in AIR 1921(PC)69, that the decision of the Court must rest upon legal ground established by legal testimony from the prosecution.

21.        Moreso in all respect, the accused are also entitled to benefit of doubt. In the case of Safder Ali Vs. Crown 5 DLR(FC) 107 held:

   “ In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt”.

22.        So, there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.

23.        For the correct exercise of revisional powers, particularly against an order of acquittal, the High Court after surveying the case in its factual and evidentiary aspect, has to ensure that justice has seen to be done. Generally misappreciation of evidence is never a sufficient ground for interfering with acquittal but the degree and the determinatory effect on the final conclusion for reason of misappreciation of evidence would call for interference. The power of High Court to order a retrial in a case in which an accused person has been acquitted is unlimited, because it is not circumscribed by any provision of the relevant law. But it must be noted that High Court exercises powers of revision in a markedly more restricted manner in a case of acquittal than one of conviction. Consideration of factual aspect of the case is the exclusive domain of the Trial Court and the Appellate Court whereas the Revisional Court has limited jurisdiction of considering illegalities or material irregularities allegedly committed by the lower forums. Full weight is to be given to the appreciation of evidence by the trial Court as the said Court has seen and heard the witnesses. When a person has been acquitted after the entire evidence against him has been considered by a Court of competent jurisdiction, if the High Court orders a retrial, the finding of the High Court would amount almost to one of conviction and in such cases the Court should refrain from ordering a retrial. But where the acquittal has been ordered on a technical ground, setting it aside does not amount virtually to a direction to convict which an order of retrial in a case in which the entire evidence has been considered by the trial Court does. Proper line of approach is not to stress that order of lower Court is final and unassailable but to ascertain that the evidence has been fairly appreciated by the Court below and conclusions reached by it are in accordance with the basic principles of law.

24.        To say that ″ misappreciation of evidence ″is never sufficient ground for interfering with an acquittal is to ignore the existence of degrees of misappreciation from the very grossest forms, exhibiting perversity, to the mere ignoring of certain side-aspects arising out of a piece of evidence. For the correct exercise of the revisional power in such cases, and particularly where the revision is brought against an original order of acquittal, the High Court should, in order to ensure that justice is seen to be done, survey the case, in its factual and evidentiary aspects, and should find, where misappreciation of evidence is alleged, what the misappreciation consists in and what is its degree and finally whether it has had a determinative effect upon the final conclusion. An estimate regarding the probabilities, in relation to the allegations of facts forms a  necessary step in arriving at such a conclusion. It is thus clear now that interference in revision under section 439 need not be confined to cases where the order of the Court below is ″ manifestly wrong or  perverse or is based on the view of the evidence which no judicial officer would take. ″ In appropriate cases, even a finding of fact could be disturbed in revision. This would be possible, for instance, where the subordinate Court had wrongly allocated the onus of proof in not applying the correct principles, relating to the appraisal of evidence, or some  important piece of evidence had been ignored. The discretion vesting in the High Court under section 439 of the Code, however, has to be exercised in accordance with the dictates of justice and not arbitrarily, or in a fanciful manner.

25.        Interference in an acquittal order resting on the discretion of the High Court, has its well-defined limitations. Technically, the powers of the High Court in examining and reviewing the evidence on a finding of fact is unlimited, but the trial Court’s view of the evidence, the nature of the error committed, the magnitude of apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a retrial are all relevant factors to be duly weighed. Interference under S 439, Cr.P.C. with an order of acquittal can only be made if it is manifestly wrong, perverse, based on misreading of evidence or on the view which no judicial Officer would take or non-interference with it will result in miscarriage of justice. "

26.        In the case of Jananendra Nath Biswas vs. Mukbul Hossain Sikder 11 DLR 359 held:

″ Acquittal, setting aside of- When justified. It is an established principle of law that power of setting aside an acquittal order by the High Court should be exercised only in exceptional cases where the interest of justice requires such interference for the purpose of correction of a manifest illegality."

27.        In the case of Abdur Rashid vs. Chandu Master 16 DLR(SC) 605 held:-

" Revision against the order or acquittal- High Court’s duty to examine the facts and circumstances in order to see that justice is done. In revision under section 439, Cr.P.C.  the High Court may not reverse an acquittal but it may yet interfere with it in another way, so as to ensure that justice is done. The line of approach in such a case is to see that the case in its details and  the supporting evidence, had been fairly and fully appreciated by the Court below, and its conclusions were reached in accordance with the basic principle governing the formation of a verdict adverse to an accused person. "

28.        In the case of Md. Samiullah Khan vs. State 15 DLR(SC) 150 held:

“High Court’s wide power under its revisional jurisdiction, enumerated. In the  exercise of its revisional jurisdiction the High Court can even, in appropriate case disturb findings of facts, as for example, where the Subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of evidence or an important piece of evidence has been ignored."

29.        In the case of Talib vs. Crown 7 DLR (FC)92 (95) held:

"Ordinarily the Federal Court is reluctant to interfere on a question of sentence. If, however, the enhancement of sentences in cases tried by the High Court raises a question of principle, the Federal Court would not hesitate to lay down correct principles for the guidance of the High Court and the subordinate Court.

Akram, J- The question of what should be the proper  sentence is not for the Federal Court to determine in the exercise of its prerogative powers and should be left to the discretion of the High Court as the final Court of facts.

Shabuddin, J- As long as the High Court exercises its discretion in enhancing the sentence judicially on recognized principles and not arbitrarily and no miscarriage of justice has resulted there can be no reason, for interfering with its discretion.

Cornelius, J- The power of enhancement of sentence should be exercised sparingly, and only to correct the serious miscarriage of justice which results where the punishment is inadequate to the point of being wholly incommensurate with crime found to have been committed.

Abdul Rashid, CJ( contra)- It is for the Court to take all circumstances into consideration and to determine whether in respect of a particular convict the sentence of transportation for life would not be more suitable than the sentence of death. So long as the trial Court performs its duty in this respect in accordance with law, the High Court should enhance the sentence. If the reason given by the Sessions Judge inflicting the punishment are perverse, or foolish, or manifestly wrong, the High Court could hold that the discretion vested in the learned Sessions Judge had been exercised in an arbitrary, injudicious or capricious manner. In such circumstances, the High Court would be justified in enhancing the sentence. Where the reasons given by the Sessions Judge are that they might appear reasonable to some Judges and unreasonable to others, the High Court is entitled to enhance the sentence simply because it would have inflicted a higher sentence had it been trying the case itself. "

30.        In the case of N. Islam vs. Saifuddin 7 DLR 123 held:

   " The revisional jurisdiction conferred on the High Court under section 439 is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal against which the government has a right of appeal under Section 417 of the Criminal Procedure Code. It could be exercised only in exceptional cases when the interest of public justice requires interference for the prevention of gross miscarriage of justice. The jurisdiction is not ordinarily invoked or used merely because the lower Court had taken a wrong view of the law or misappreciated  the evidence on record. "

31.        In the Case of Jamshed Bakth vs. “Ameenur Rashid Chowdhury 20 DLR 55 held:

" High Court in proper cases can interfere with question of fact wrongly decided by the trial Court.

Under section 439 the High Court in exercise of its revisional jurisdiction can disturb the findings of facts; where the Subordinate Courts have wrongly applied the law and procedure of not applying the correct principles relating to the appraisement of evidence or ignored the important pieces of evidence altogether. Normally though a revisional Court should not take upon itself the task of weighing the evidence afresh, but its power is not confined to question of law alone and in a fit case the High Court can also deal with question of facts where the findings of the Courts below are unreasonable, perverse and absolutely against the weight of evidence."

32.        On further exploration of the evidence on record, we failed to discover any manifestly illegality, wrong, perverse, based on misreading of all evidence or any miscarriage of justice, in the judgments of the Courts below. Moreso, the findings of the Court below in recording the order of acquitted are not unreasonable, perverse or absolutely against the weigh of evidence.

33.        Moreover, the impugned judgment and order of the Court below in its entirety is well founded in the facts and circumstances of the Case. So the submissions advanced by the learned Deputy Attorney General are the correct exposition of law and appears to have a good deal of force.

34.        In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the impugned judgment and order of the Court below suffer from no legal infirmity which calls for no interference by this Court. Thus the Rule having no merit fails.

35.        In view of foregoing narrative the Rule is discharged. The Judgment and order of the Court below is hereby confirmed.

36.        The Office is directed to send down the record at once.

Ed.



Criminal Revision No. 2807 of 1991(Dhaka)

Criminal Revision No. 36 of 1987(Rangpur)