Md. Firoz Vs. The State, 2 LNJ (2013) 560

Case No: Jail Appeal No. 555 of 2007

Judge: M. Moazzam Husain,

Court: High Court Division,,

Citation: 2 LNJ (2013) 560

Case Year: 2013

Appellant: Md. Firoz

Respondent: The State

Subject: Criminal Trail, Law of Evidence,

Delivery Date: 2011-01-16

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Abdul Awal, J.
            And
M. Moazzam Husain, J.

Judgment
16.01.2011
 
Md. Firoz
...Appellant
Versus
The State
...Respondent
 
Code of Criminal Procedure, (V of 1898)
Sections 221, 222,223 and 224
Framing of issues in criminal cases stands in contrast with criminal jurisprudence. In criminal cases it is the offence which is tried. Offences remain defined in penal clauses with all their intricacies communication of which in any language other than the technical language of law is not possible without an amount of risk of miscommunication. Code of Criminal Procedure, in its Chapter XIX, has taken adequate care about the language of charge to make sure that the accused is not prejudiced in his defense on the score of communication of the offence he is proposed to be tried upon. It is, therefore, not permissible under law to introduce any other device, in the form of issues or otherwise, as substitute or supplement of ‘charge’ into the scheme of the Code of Criminal Procedure.…(15)
 
Evidence Act, (I of 1872)
Section 114(g)
Non-examination of the Investigating Officer may, in certain circumstances, be fatal if it could be shown that by that way the accused is substantially prejudiced in his defense. In the peculiar facts of the present case it is most likely that such non-examination has prejudiced the accused in his defense which otherwise might have entitled him to benefit of doubt.…(16)

Jail Appeal No. 555 of 2007
 
JUDGMENT

M. Moazzam Husain, J.
 
This appeal arises out of a judgment and order dated 14.3.2007 passed by the Special Tribunal No. 5. Chittagong, convicting the appellant (sole accused) under section 19A and 19(f) of the Arms Act and sentencing him to suffer rigorous imprisonment for 10 years and 7 years respectively under those sections of law making the sentences to run concurrently.
 
The case arose out of a first information report, shortly, “the FIR” lodged by one Dilwara Begum with Rawjan police station at about 14.30 hours on 17.2.2002. The story as alleged in the FIR, in short, is that the accused entered into the dwelling hut of the informant despite her opposition. He then emerged a revolver, pointed at her and charged her saying, ‘despite repeated requests why she did not pay money’. He said he   would kill them all this time. At an opportune moment she and her sister-in-law (second wife of her husband) hooked the door up from outside; caught hold of the accused with the revolver and raised hue and cry. Having heard the hue and cry Abdur Rahim, her brother-in-law (husband’s elder brother), Abdul Mannan, Mohammad Ali, Monaiya and many others came to the spot and heard about as well saw for themselves the occurrence. They all tied up the accused and were planning for giving information to the nearest police station. Meanwhile police came to the scene of occurrence having had information from sources not known to the informant. Having got the police at the spot they handed over the accused with the revolver with five round bullets. Police being satisfied that the accused did not have valid papers in support of the possession of the arms and ammunitions seized the same on the spot by a seizure list duly signed by the witnesses.
 
The FIR gave rise to Rawjan Police Station Case No.11 dated 17.2.2002 under sections 19A and 19(f) of the Arms Act. Police, after investigations, submitted charge sheet against the appellant under the aforesaid sections of law and upon submission of charge-sheet the case was sent up to the Special Tribunal, Chittagong for trial wherein the same was registered as Special Tribunal Case No. 92 of 2002.
 
The case was put on trial before the Special Tribunal No.5, Chittagong.  Learned Judge of the Tribunal framed charges against the appellant under sections 19A and 19(f) of the Arms Act to which the appellant pleaded not guilty. Six witnesses including the informant were   examined on behalf of the prosecution. The investigating officer could not be examined as he did not turn up during trial. The appellant cross-examined the witnesses himself.
 
Learned Judge, upon trial found the appellant guilty of the charges framed against him and convicted and sentenced him under both the sections to suffer rigorous imprisonment for a period of 10 years under section 19A and 7 years under section 19(f) of the Arms Act. Learned Judge, however, made both the sentences to run concurrently. The appellant was found guilty essentially on the findings as follows:

   ‘‘এজাহারকারিনী ..এজাহারে উল্লিখিত ঘটনার বিবরণ তাহার সাক্ষ্য হুবহু পূণর্ব্যক্ত করেন।   পি, ডব্লিউ-২ কৃষিকাজ করাকালীন  হৈ চৈ শুনিয়া ঘটনাস্থলে যান । আসামীর নিকট হইতে রিভলভার কাড়িয়া লন। পি, ডব্লিউ-৩  এজাহারকারিন£র সতিন। তিনি তাহার সাক্ষ্যে বলেন আসামী  এজাহারকারিনীৃর  বসতঘরে ঢোকার পর বাহির হইতে শিকল আটকাইয়া চিৎকার দিলে আশেপাশের লোকজন আসে  এবং  আসামীর কাছ থেকে অস্ত্র ও গুলি উদ্ধার করে।"
 
As the FIR version goes, out of six witnesses examined on behalf of the prosecution none was an eye witness except PW-1 and 3, ie, the informant and her sister-in-law. Except those two witnesses all others admittedly came to the spot having heard the hue and cry raised by them and, as per FIR, after they had seized of the accused and the arms. Relevant portion of the FIR (Ext.1) reads as follows:

   ‘‘আমি ও আমার সতিন  জোহরা খাতুন সুযোগ বুঝিয়া  আমাদের  ঘরের বাহিরের দরজার শিকল আটকাইয়া আমরা দুই সতীনে উক্ত আসামী  মো: ফিরোজকে  উল্লিখিত অগ্নেয়াস্ত্রসহ  ধরিয়া ফেলিয়া   ডাকচিৎকার দেই।"
 
In view of the FIR story the findings of the learned judge that -the neighboring people having heard hue and cry came and recovered the arms and ammunitions from the possession of the accused- apparently runs contrary to the FIR version. PW.3 who is said to be present at the time of occurrence did not support the mode of recovery of arms and ammunitions from the possession of the appellant and practically has taken a departure from the FIR story saying that-  অামার ভাসুর অা: রহিম অস্ত্রটি অাসামীর হাত থেকে নিয়েছে। So is the case with PW. 2, ie, brother-in-law of the informant who said -অামি দেখি অাসামীকে ঘরে অাটক করে রেখেছে, তার হাতে একটি রিভলভার ছিলো। সেই রিভলভার অামি কেড়ে নেই- Other witnesses are admittedly hearsay at least as far as the recovery of arms is concerned. The mode of recovery of arms disclosed in the FIR and the statements made by the witnesses to that effect thus leaves the factum of recovery unclear and do not permit safe inference of recovery of arms etc. from the appellant.
 
A close scrutiny of the prosecution case is clearly suggestive of the fact that the story set out in the FIR is utterly unbelievable in that the story of an armed man being hauled up by two unarmed women as is stated in the FIR and thereafter taking control of him with his arms and gathering people by shouting is incompatible with the ordinary course of events.  It is not clear how they trapped a full-grown armed man in a so-called opportune moment.  There is nothing on records to show the exact condition of the room in terms of its nature, walls, doors, windows and lock-up devices so as to assess the possibility of confinement of  an armed man, as the appellant allegedly was. It is unclear how a person can see from outside one who is confined in a room, as PW.2 did.
 
As is manifest from evidence that the family from where the appellant allegedly tried to extort money at gun point was a poor family of a person wanted in a number of cases and had long been in prison. Moreover, he maintains two wives. The economic condition of the family is fairly understandable. Pertinent question immediately crosses a reasonable mind what prompted an otherwise sane man to insist for  money from a wretched family of the kind and to go there  for money more so with gun that too  at broad daylight.  How could he conceive the idea that, of all the people, the two destitute wives of a poor prisoner were in a position to pay him money.
 
Another aspect of the case cannot but draw attention. The occurrence took place at 10 O’clock in the morning. Policemen reportedly, came to the spot soon thereafter. Seizure list was prepared at 11 in the morning. Seizure-list (Ext.2) shows overwriting on “1100 hrs” making the same “1300 hrs.” as the time for its preparation. The manipulation is manifest from the fact that it is written in Bangla as:  সকাল ১৩.০০ ঘটিকার সময়।  “1300 hrs” cannot be called “morning” in any case.  It is, therefore, clear that police went to the spot before 11 in the morning. Curiously, the first police party who reached immediately after the occurrence chose to remain silent about the occurrence. They allowed 3½ hours for the complaint petition to be drafted and lodged in the police station at 13½ hrs which contains technical description of the arms as ‘revolver’ and the ‘type’ as capable of using bullets of 22 bore rifle. The technical name and type of the arms cannot be known to an illiterate woman like the informant. In view of the above coupled with the delay in lodging FIR likelihood of fabrication cannot be ruled out. 
 
The identification of the revolver and bullets in court, as is done, is open to doubt.  The internal infirmities of the case read with the apparently inconsistent versions of recovery of arms given by different witnesses make the prosecution case doubtful.
 
Furthermore, the factum that PWs 1 and 3 are members of a criminal family seeks to impair their credibility as witnesses. It is unsafe to place reliance on their evidence unless supported by independent and reliable witnesses. We do not find any such witness to support their case to the satisfaction of the court. It follows, therefore, that the prosecution has failed to bring home the charges brought against the appellant beyond reasonable doubt. Learned Judge appears to have given a total go-by to the need for assessment of evidence in their legal and factual perspective and made a short-cut to conclusion just on the face value of the statements made by three witnesses of highly doubtful credibility.
 
Charges are framed against the appellant under sections 19A and 19(f) of the Arms Act. Learned Judge alongside charges framed issues exactly as it is done in law- suits and seems to have directed himself on the issues in coming to his findings. The issues as framed are:
  1. এজাহার বর্ণিত ঘটনার তারিখ ও সময়ে অাসামী অবৈধ অস্ত্র ও গুলি  লাইসেন্স ব্যতিরেকে নিজ দথল ও নিয়ন্ত্রনে রাখিয়াছিলেন কিনা
  2. প্রসিকিউশন পক্ষ অাসামীর বিরুদ্ধে অানীত অভিযোগ সন্দেহাতীতভাবে প্রমানে সক্ষম হইয়াছেন কিনা।
The issues framed in addition to the specific charges might have been fatal had the second issue was not there in the sense that mere possession and control of unlicensed arms at a particular place and time may not always constitute offence. Such possession and control, to constitute offence, must come within the technical meaning of law.
 
Framing of issues in criminal cases stands in contrast with criminal jurisprudence. In criminal cases it is the offence which is tried. Offences remain defined in penal clauses with all their intricacies communication of which in any language other than the technical language of law is not possible without and amount of risk of miscommunication. Code of Criminal Procedure, in its Chapter XIX, has taken adequate care about the language of charge to make sure that the accused is not prejudiced in his defense on the score of communication of the offence he is proposed to be tried upon. It is, therefore, not permissible under law to introduce any other device, in the form of issues or otherwise, as substitute or supplement of ‘charge’ into the scheme of the Code of Criminal Procedure.
 
Another aspect of this case is non-examination of the Investigating Officer which seems to have been slided over by the learned Judge. Non-examination of the Investigating Officer may, in certain circumstances, be fatal if it could be shown that by that way the accused is substantially prejudiced in his defense. In the peculiar facts of the present case it is most likely that such non-examination has prejudiced the accused in his defense which otherwise might have entitled him to benefit of doubt.
 
For all the reasons states above we find merit in this appeal. The appeal is, accordingly, allowed. The impugned judgment and order of conviction and sentence are set aside. The appellant is acquitted of the charges brought against him. Let the appellant, Md. Firoz, be set at liberty at once if not wanted in any other connection.

Send down the L/C records along with a copy of this judgment expeditiously.

Ed.