Md. Guljer Hossain and others Vs. The State, 3 LNJ (2014) 609

Case No: Criminal Revision No. 977 of 2002

Judge: Md. Akram Hossain Chowdhury,

Court: High Court Division,,

Advocate: Mr. M.H. Sarder,Mr. Md. Asaduzzaman Asad,Mr. Aminul Haque,Mr. Abdul Jabbar,Mr. Gazi. Md. Mamunur Rashid,,

Citation: 3 LNJ (2014) 609

Case Year: 2014

Appellant: Md. Guljer Hossain and others

Respondent: The State

Subject: Law of Evidence,

Delivery Date: 2013-01-24


HIGH COURT DIVISION
(Criminal Revisional Jurisdiction)
 
M. Enayetur Rahim, J,
And
Md. Akram Hossain Chowdhury, J.

Judgment on
24.01.2013
  Md. Guljer Hossain and others
. . . Petitioners
-Versus-
The State
... Opposite Party
 
Evidence Act (I of 1872)
Section 114(g)
Penal Code (XLV of 1860)
Sections 382/458
In the instant case the vital witnesses who are namely the investigating officer and the seizure list witness were not examined. It also reveals that the defence plea was that there was a longstanding land dispute between the informant and the convict petitioner Guljer Hossain who being the brother-in-law of the informant claimed his share of landed property from the informant party, hence on a false plea the case was filed against petitioners. In support of their above plea the accused petitioners cross-examined the prosecution witnesses wherein from the trend of cross-examination of the witnesses we find support of that defence plea. Moreso, in the instant case no such evidence has been adduced before the trial Court to prove the offence of Sections 382/458 of the Penal Code and neither any Medical Certificate was produced nor a Doctor has been examined before the trial Court to prove such offence. As such, the said Judgment has caused to an error of misreading of the evidence on record and also misappreciation of law. . . . (11)
 
Mr. Aminul Haque with
Mr. Abdul Jabbar, Advocates
. . . For the Petitioners

Mr. M.H. Sarder, DAG with
Mr. Gazi. Md. Mamunur Rashid, AAG and
Mr. Md. Asaduzzaman, AAG
. . . For the opposite party State

Criminal Revision No. 977 of 2002
 
JUDGMENT
Md. Akram Hossain Chowdhury, J:

This Rule was issued calling upon the opposite party to show cause as to why the judgment and order dated 21.07.2002 passed by the Additional Session Judge, Sirajgonj, in Criminal Appeal Nos. 23 of 2002, 5 of 2002 and 3 of 2002 affirming those of conviction and sentence dated 28.02.2001 passed by the Assistant Sessions Judge, 1st Court, Sirajgonj, in Sessions Case No. 33 of 1995 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

The accused petitioners were put on trial before the Assistant Sessions Judge, 1st Court, Sirajgonj to answer the charge under Section 382/458 of the Penal Code, in Sessions Case No. 33 of 1995.

The facts remained in the prosecution case in brief is that one Md. Liaqat Ali being informant lodged an FIR with Rajgonj Police Station implicating the present convict petitioners and others as accused alleging inter-alia that on 22.11.1989 at night about 12:00 o’clock the informant and his wife were sleeping in their south facing ten shed house, at that time his younger brother Nazrul raised hue and cry expressing that dacoits had entered into their house by breaking the wall of the house. Hearing such hue and cry of his brother the informant and his wife woke up; while the informant coming out from his house and screamed out to rescue them, the accused Guljer Hossain and Kashem entered into his bedroom and dealt a Lathi blow on the head of the informant’s wife and they breaking chest lock took away handloom saris of different colours worth of Tk. 9000/- and a cassette player worth of Tk. 2800/-; the dacoits also took away different colour and branded saris from his brother’s house worth of Tk. 19,400/-. The accused Saiful, Golam Hossain and Shahidul were also along with the docaits and they carring with the stolen goods went away to the western side of the house. Hence, the case started against the convict petitioners and others under Section 382/458 of the Penal Code.

After holding investigation of the case the police submitted charge sheet against the convict petitioners and others under Sections 382/458 of Penal Code. The case being ready for trial the case record was sent to the Sessions Judge, Sirajgonj for disposal and the same was registered as Sessions Case No. 33 of 95. Eventually the said Sessions Case was transferred to the Court of the Assistant Sessions Judge, 1st Court, Sirajgonj for trial and the learned Judge of the said Court after hearing parties framed charge against the petitioners under the above noted sections, to which the petitioners were pleaded not guilty and claimed to be tried.

At the trial the prosecution examined 9 witnesses and the defence cross-examined them but no defence witness was examined.

After completion of the trial the learned Assistant Sessions Judge, 1st Court, Sirajgonj by his judgment and order dated 28.02.2001 convicted the accused petitioners and others under Sections 382/458 of the Penal Code and sentenced them to suffer rigorous imprisonment for 5 years and also to pay fine of Tk. 5,000/- each in default to suffer rigorous imprisonment for 6 (six) months more.

Being aggrieved by the said judgment and order of conviction and sentence, the convict petitioners as appellants preferred three separate Criminal Appeals being Nos. 23/2002, 03/2002 and 5/2002 before the Sessions Judge, Sirajgonj; subsequently the said appeals were heard and disposed of by the Additional Sessions Judge, Sirajgonj, who upon perusal of the evidence on record and hearing the parties by its judgment and order dated 21.07.2002 affirming the trial Court’s judgment and order of conviction and sentence dismissed the appeals.

Being aggrieved by and dissatisfied with the said judgment and order of the learned Additional Sessions Judge, Sirajgonj dated 21.07.2002, the convict appellants as petitioners by filing an application under Section 439 of the Code of Criminal Procedure obtained the instant Rule.

Mr. Aminul Haque the learned Advocate appearing with Mr. Md. Abdul Jabbar, Advocate for the petitioners submitted that the Court’s below upon misreading the evidences on record passed the impugned judgment and order of conviction, whereas the present case has suffered from various illegalities. Mr. Hoque further submitted that in the present case the vital witnesses i.e. the investigating officer and the seizure list witness were not examined; moreover, to prove the case under Section 382 of the Penal Code neither any Medical Certificate nor a Doctor had been examined in the Case. Mr. Haque by placing the deposition of P.W. No.4 Md. Nazrul Islam, submitted that this prosecution witness being the brother of the informant, on whose alarm the informant woke up and recognized the accused persons but this witness in his cross-examination contradicted with the other prosecution witnesses; he also could not recognize the accused Guljer though the said accused is a nearest relative of the informant and the present witness Nazrul. His further submission was that from the trend of cross-examination of the witnesses it revealed that there was a longstanding land dispute between the informant party and the convict petitioner Guljer Hossain and thereby the informant with a false plea to harass the petitioners filed the instant case. He finally submitted that since the prosecution was failed to prove its case beyond reasonable doubt, the impugned judgment and order of conviction and sentence, so far it relates to the present petitioners, are liable to be set aside.

On the other hand the learned Deputy Attorney General Mr. M.H. Sharder appearing with Mr. Md. Asaduzzaman, the learned Assistant Attorney General representing the opposite party state submitted that the Courts below upon proper assessment of the material evidence on record rightly passed the impugned judgment and order of conviction and sentence which do not calls for any interference and as such the same is to be maintained.

Heard the learned Advocates, perused the material evidence on record and gone through the impugned judgment and order of conviction and sentence. It appears from the record that in the instant case the vital witnesses who are namely the investigating officer and the seizure list witness were not examined. It also reveals that the defence plea was that there was a longstanding land dispute between the informant and the convict petitioner Guljer Hossan who being the brother-in-law of the informant claimed his share of landed property from the informant party, hence on a false plea the case was filed against petitioners. In support of their above plea the accused petitioners cross-examined the prosecution witnesses wherein from the trend of cross-examination of the witnesses we find support of that defence plea. Moreover, in the instant case no eye witness other than the informant was examined in the case and the vital prosecution witness Md. Nazrul Islam (PW-4) who is the brother of the informant, on whose alarm the informant woke up and saw the accused persons but in his cross-examination this prosecution witness Nazrul Islam disclosed that he could not identify the accused persons who were also present in the dock. Whereas, the P.W.1, informant and the other prosecution witnesses in their cross-examination disclosed that the accused Goljer Hossain who was present in the dock, is a nearest relative of the informant but the P.W.-4 Nazrul Islam, in his cross-examination contradicted the said version of the prosecution witnesses saying that he could not recognize the accused persons who were involved in the alleged occurrence and also present in the dock. More so, in the instant case no such evidence has been adduced before the trial Court to prove the offence of Sections 382/458 of the Penal Code and neither any Medical Certificate was produced nor a Doctor has been examined before the trial Court to prove such offence. But without having any corroborative evidence in proving such offence the trial Court convicted the petitioners under Section 382/458 of the Penal Code holding that the prosecution was able to prove its case beyond reasonable doubt and the appellate Court being the last Court of fact also failed to ascertain the above legal aspect in passing its Judgment dismissing the appeals and affirming the trial Court’s judgment and order of conviction and sentence without giving any cogent ground. As such, the said Judgment has caused to an error of misreading of the evidence on record and also misappreciation of law.

Considering the above it appears to us that the learned Judge of the Trial Court as well as the Appellate Court has misread the evidence on record and also without appreciating the material facts and law passed the impugned judgment and order of conviction and sentence which suffers from various irregularities and illegalities. As such the same is to be interfered with. Thus, we find merit in the rule.
         
In the result, the rule is made absolute. The judgment and order dated 21.07.2002 passed by the Additional Session Judge, Sigrajgonj, in Criminal Appeal Nos. 23 of 2002, 5 of 2002 and 3 of 2002 dismissing the appeals affirming the judgment and order of conviction and sentence dated 28.02.2001 passed by the Assistant Sessions Judge, 1st Court, Sirajgonj is hereby set aside. The accused petitioners are acquitted from the charge as leveled against them under Section 382/458 of the Penal Code and they are discharged from their respective bail bonds.     

Communicate this judgment and order to the concerned Court at once.

Ed.