Mohammad Afzal Hossain Shaikh and another Vs. The State, 3 LNJ (AD) (2014) 85

Case No: Criminal Appeal No. 85 of 2013

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Biswajit Deb Nath,Mr. Yusuf Hossain Humayun,,

Citation: 3 LNJ (AD) (2014) 85

Case Year: 2014

Appellant: Mohammad Afzal Hossain Shaikh and another

Respondent: The State

Delivery Date: 2014-01-22


APPELLATE DIVISION
(CRIMINAL)
 
Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J,
Mohammad Anwarul Haque, J.

Judgment on
22.01.2014
  Mohammad Afzal Hossain Shaikh and another
. . . Appellants
-Versus-
The State
. . . Respondent
 

Code of Criminal Procedure (V of 1898)
Sections 299, 300, exception No. 4 and 304-1st part
If the assailant intended to cause injury which could cause the victim’s death, then he would fall foul of the definition of culpable homicide and murder in section 299 read with section 300 of the Penal Code. Section 304 of the Penal Code can only apply if the culpable homicide falls within one of the exceptions under section 300. The learned Sessions Judge did not specify which exception he found to be applicable in the facts of the case before him.  Mahibullah was a youngster, who had been in a quarrel with Kaium. He was already in a fighting mood when Abdus Sattar intercepted. Evidently the hot-blooded youngman carried on the beating which started with Kaium. This was the continuation of a fight and it can be said that there was no premeditation. Hence, the exception No. 4 to section 300 is applicable. Accordingly, the conviction and sentence under the first part of section 304 is the correct application of law.... (11 and 13)

Md. Abdul Bari Mollah Vs. State, 17 BLD (1997) 223; Md. Nizamuddin Dhali Vs. State, 16 BLD (1996) 312 and Abul Kalam Azad Vs. State, 48 DLR 294 ref.

For the Appellants: Mr. Yousuf Hossain Humayun, Senior Advocate, instructed by Mr. Zainul Abedin, Advocate-on-Record
For the Respondent: Mr. Biswjit Deb Nath, D. A. G., instructed by Mr. Giasuddin Ahmed, Advocate-on-Record.

Criminal Appeal No. 85 of 2013
 
JUDGMENT
Muhammad Imman Ali, J.

This appeal by leave arises out of judgement and order dated 26/06/2011 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1062 of 1997 dismissing the appeal.

The facts relevant for disposal of this appeal are that while Md. Kaium (P.W. 10) was taking his bath in the canal in front of their house accused Mahibullah, as a sequel to previous enmity, started beating him with a lathi. Kaium’s younger sister Rekha alias Rina raised hue and cry, hearing which Abdus Sattar (the victim) and Kohinoor, Kaium’s father and mother respectively came to the place of occur-rence. Afzal Hossain, father of Mahibullah also came to the place of occurrence and caught hold of Abdus Sattar’s throat and Mahibullah dealt several lathi blows on Abdus Sattar, who then became senseless and fell to the ground. The victim succumbed to his injuries. On the following day the victim’s son-in-law, Bazlur Rahman lodged a First Information Report (F.I.R.) with Nasarabad Police Station thus giving rise to Nasarabad PS Case No. 11 dated 16/10/1995.

After investigation, police submitted charge sheet No. 69 dated 12/12/1995 against accused Afzal Hossain and Mahibullah under sections 323/302/34 of the Penal Code. The case was transferred to the court of Sessions Judge, Pirojpur and numbered as Sessions Case No. 53 of 1996. Charge was framed against the accused under sections 302/34 of the Penal Code. In addition Mahibullah was charged under section 323 of the Penal Code. The charge was read over to the accused, to which they pleaded not guilty and claimed to be tried.

The prosecution examined 18 witnesses, of whom PWs 1-6, 8 and 9 were declared hostile. The defence did not examine any witness. When the accused were examined under section 342 of the Code of Criminal Procedure, they again pleaded their innocence.

The learned Sessions Judge on consider-ation of the evidence and materials on record convicted both the accused under the first part of section 304 of the Penal Code and sentenced them to suffer rigourous imprisonment for 10 years and to pay fine of Tk.2,000/-each, in default to suffer rigourous imprisonment for two months more. In addition accused Mahibullah was convicted under section 323 of the Penal Code and sentenced to suffer rigourous imprisonment for three months, his sentences of imprisonment to run concurrently.

Being aggrieved by and dissatisfied with the judgement and order of conviction and sentence, the accused preferred Criminal Appeal No. 1062 of 1997 before the High Court Division. By the impugned judgement and order the High Court Division dismissed the appeal and hence the appellants filed Criminal Petition for Leave to Appeal No. 809 of 2012. Leave was granted to consider the following grounds:
  • Whether the trial court as well as the High Court Division failed to consider that the sentence had been awarded on the basis of contradictory statements of the prosecution witnesses and the prosecution failed to prove the case beyond reasonable doubt and as such the impugned judgement and order passed by the High Court Division is liable to be set aside;
  • Whether the ingredients of the charges having not been proved by any independent witness, the judgement of the High Court Division concurring with the findings of the Sessions Judge and maintaining the sentence awarded to the petitioners, is liable to be set aside;
  • Whether the High Court Division did not assess the evidence of the witnesses in proper perspective keeping in mind that there was no independent witness and hence the judgement of the High Court Division is liable to be set aside.
Mr. Yusouf Hossain Humayun, learned Senior Advocate appearing on behalf of the appellants submitted in support of the grounds upon which leave was granted. He reiterated that there were no independent witnesses supporting the occurrence and those witnesses other than the family members of the victim, who came to depose did not support the prosecution case. He further submitted that appellant No. 1 is an old man and is not likely to have engaged in the quarrel which allegedly took place between Kaium and Mahibullah. Finally, he submitted that the alleged occurrence took place over a fight between two youngsters and hence the sentence, in the facts and circumstances of the case as alleged by the prosecution is too harsh.

Mr. Biswajit Deb Nath, the learned Deputy Attorney General appearing on behalf of the State-respondent submitted that the post-mortem examination report clearly indicates that the victim died of shock and haemorrhage caused by injuries which were ante mortem and homicidal in nature. He pointed out that there were no less than eight injuries found on the body of the victim, including on vital parts of his body, such as the head and neck. He submitted that presence of such injuries clearly indicates that the witnesses who deposed that the victim died of some other cause, were telling lies. He further submitted that the wife of victim Abdus Sattar, his son Kaium and his daughter Rekha were natural witnesses to the occurrence. Moreover,  Kohinoor and Kaium were both themselves victims, having received injuries on their person which has been supported by medical evidence. He pointed out that the altercation which took place between Kaium and Mahibullah was not denied even by those witnesses who were declared hostile by the prosecution. That occurrence was a precursor to the later occurrence which led to the death of victim Abdus Sattar. He finally submitted that clearly the victim died of the injuries caused by Mahibullah since the doctor, PW 17 stated in his cross-examination that the death was not caused due to asphyxia on account of strangulation.

We have considered the submissions of the learned advocates appearing for the parties concerned and perused the impugned judgement as well as other evidence and materials on record.

At the outset, it appears to us that the occurrence took place over a trifling altercation between two youths and developed into a family brawl where the parents also became involved. Accused Mahibullah, according to the age stated in his examination under section 342 of the Code of Criminal Procedure was about 18 years old at the time of the occurrence. Kaium was about 20 years old. It is a common phenomenon, particularly in rural Bangladesh for trifling matters to develop into incidents involving fatality. According to the evidence of PW 16, Rekha alias Rena, who was at the scene of occurrence from the very beginning, Mahibullah started beating her brother Kaium as soon as he reached the bank of the canal after taking his bath. Upon hearing hue and cry her father and mother came to the scene of occurrence. Mahibullah’s father Afzal Hossain also came to the scene of occurrence and caught hold of her father’s (the victim’s) throat. Her father fell to the ground and Mahibullah beat him with lathi. Thus we get a vivid picture of the whole scenario from the 12-year-old girl whom the learned judge found on questioning to be a competent witness. Taking all the factors into consideration the learned Sessions Judge came to the conclusion that the beating by the accused persons caused the death of the victim, but the way they beat him, it is clear that they had no intention to cause murder. The learned judge was satisfied that the beating was such that they intended to cause injury which could cause his death.
 
If the assailant intended to cause injury which could cause the victim’s death, then he would fall foul of the definition of culpable homicide and murder in section 299 read with section 300 of the Penal Code. Section 304 of the Penal Code can only apply if the culpable homicide falls within one of the exceptions under section 300. The learned Sessions Judge did not specify which exception he found to be applicable in the facts of the case before him.

On meticulous assessment of the evidence on record, we find that the injury inflicted by Mahibullah was the cause of death of the victim. In particular we note that the injury on the head was a blow to a vital part of the victim’s body which caused internal blood clotting. There were also injuries on the back of the neck and sides of the neck which caused haematoma with extravasated clotted blood found under the injuries.
However, all these must be considered in the context in which the beating took place. Mahibullah was a youngster, who had been in a quarrel with Kaium. He was already in a fighting mood when Abdus Sattar intercepted. Evidently the hot-blooded youngman carried on the beating which started with Kaium. This was the continuation of a fight and it can be said that there was no premeditation. Hence, the exception No. 4 to section 300 is applicable. Accordingly, the conviction and sentence under the first part of section 304 is the correct application of law.

The injury caused by Afzal Hossain was not the cause of death as found by PW 16. However, holding the throat of the victim caused him to fall to the ground and thereafter Mahibullah struck the victim with lathi. Clearly, Afzal Hossain aided and abetted Mahibullah to commit the offence which is culpable homicide not amounting to murder.

In the above facts and circumstances, we are of the view that the ends of justice will be sufficiently met if the sentence of Afzal Hossain is reduced to the period already undergone by him in prison.

In the result the appeal is dismissed. The conviction and sentence of appellant Mahibullah under the first part of Section 304 of the Penal Code is upheld. However, Afzal Hossain is found guilty under Section 304/109 of the Penal Code. He has served in prison for more than 2 years. The sentence of appellant No. 1, Afzal Hossain is reduced to the period undergone by him in prison and accordingly he is directed to be released forthwith unless he is wanted in connection with any other case.

         Ed.