State Vs. Abdul Kashem Member and others, VI ADC (2009) 88

Case No: Criminal Petition for Leave to Appeal No.464 of 2006

Judge: Md. Hassan Ameen,

Court: Appellate Division ,,

Advocate: Mr. Syed Haider Ali,Md. Nurul Islam Chowdhury,,

Citation: VI ADC (2009) 88

Case Year: 2009

Appellant: State

Respondent: Abdul Kashem Member and others

Subject: Examination of Witness, Procedural Law,

Delivery Date: 2008-4-20

 
Supreme Court
Appellate Division
(Criminal)
 
Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Hassan Ameen J
 
The State
……………Petitioner
Vs.
Abdul Kashem Member and others
……….......Respondents
 
Judgment
April 20, 2008.
 
Penal Code, 1860
Sections 302/148/149
Code of Criminal Procedure, 1898
Section 342
The accused on dock were examined under Section 342 of the Code of Criminal Procedure to which they pleaded not guilty and repeated their innocence. The defense did not however examine any witnesses on their behalf. … (7)
Being aggrieved and dissatisfied thereby, the accused-respondents preferred appeal before the High Court Division and the learned judges of the High Court Division after hearing the parties and on perusal of the evidence on record entertained the appeal and thereby set aside the impugned order of conviction. Against which, the State as petitioner has come up with the present petition for leave to appeal. …. (9)
 
Lawyers Involved:
Syed Haider Ali, Deputy Attorney General, instructed by B. Hossain, Advocate-on-Record-For the Petitioner.
Md. Nurul Islam Chowdhury, Advocate-on-Record-For the Respondents.
 
Criminal Petition for Leave to Appeal No.464 of 2006.
(From the judgment and order dated 10th and 13th August, 2005 passed by the High Court Division in Criminal Appeal No.1458 of 1998)
 
JUDGMENT
 
Md. Hassan Ameen J.
 
Delay by 4 (four) days is condoned.
 
2. The petitioner (State) seeks leave to appeal against the judgment and order dated 10th and 13th August, 2005 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1458 of 1998 allowing the appeal and thereby setting aside the judgment and order dated 14-06-1998 passed by the learned Additional Sessions Judge, 2nd Court, Comilla in Sessions Case No.35 of 1991 convicting the appellants 1. Abdul Kashem Member, 2. Abdur Rab, 3. Joynul Abedin, 4. Mostafa and absconding con­vict Sultan under Section 302/149 of the Penal Code and sentencing them to suffer imprisonment for life with a fine of Tk. 5,000/- each, in default to suffer imprisonment for 1 (one) year.
 
3. The prosecution case, in brief, is that on 19-09-1989 at about 7.00 a.m. deceased Ful Mia, the elder brother of informant Suruj Mia, on way of going to Elahabad Bazar from their house and when reached at the north west turning of the road to the western side of the boroz of the appellant Joynul Abedin. The appellant-respondent and other accused persons numbering eighteen being armed with dao, ekkaitta, lathi and teta etc. attacked him, who raised alarm saying “gv‡Mv gv‡Mv" on hearing his such outcry his brother informant Suruj Mia, uncle Rahman Dafadar, mother Jobeda Khatun, wife Manwara Begum from their house rushed to the place of occurrence 300 yards away, when appel­lant-respondent Abul Kashem ordered to finish the deceased. At this stage, the appellant-respondent Abdur Rab gave several dao blows on his (deceased) head. Consequently, he fell down on the ground. The absconding convict Sultan gave dao blow below his knee on the left leg. The appellant Mostafa gave ekkaitta blows below the knee of the right leg. The appel­lant-respondent Joynul Abedin gave a dao blow below the knee of the right leg. The remaining accused persons dealt him indiscriminate lathi blows. Hearing hue and cry, raised by the informant and other witnesses present there, Pw.2 Abdul Malek, father of the deceased, Pw.3, Abdul Kader, Pw.4 Shamsul Hoquc, Pw.8 Rcni Mia, Hanif, Pw. 5 Anu Mia, Aziz and Yeasin Munshi came there running when the accused persons departed. The deceased with severe injuries was shifted to Debidwar Upazila Hospital by the informant and Pw.3 Abdul Kader by the rickshaw of Yeasin. But as his condition was very much critical at the advice of the doctor of that hospital he (deceased) was taken and admitted into Comilla General Hospital, where he succumbed to the injuries at 10.00 a.m. Following night at 11.00 p.m. informant Suruj Mia lodged First Information Report at Debidwar Police Station mentioning the name of 13 persons including the appellant-respon­dents as accused.
 
4. The police took up investigation, visit­ed the place of occurrence, prepared sketch map with separate index of the place of occurrence, prepared inquest report of the dead body of the deceased and sent it to the morgue for holding post­mortem examination, seized alamats by preparing seizure list, examined the wit­nesses and recorded their statement under Section 161 of the Code of Criminal Procedure and finally submitted charge-sheet   against them under Sections 302/148/149 of the Penal Code.
 
5. The case record ultimately came to the file of the trial Court (Additional Sessions Judge), who framed charge against the accused-petitioner and others under Sections 302/149 of the Penal Code and read it over to them on dock to which they pleaded not guilty and demanded trial.
 
6. The prosecution examined as many as 12 Pws. all of whom were cross-examined by the defence.
 
7. After close of the prosecution witness­es, the accused on dock were examined under Section 342 of the Code of Criminal Procedure to which they pleaded not guilty and repeated their innocence. The defence did not however examine any wit­nesses on their behalf.
 
8. The defence case as could be gathered from the trend of cross-examination is total denial and their, inter alia, case was that no occurrence took place on the date, time, place and in the manner as alleged but they have been falsely implicated in this case out of enmity and grudge.
 
9. Thereafter, the learned trial Court on the basis of the evidence on record found the accused namely, 1. Abdul Kashem Member, 2. Abdur Rab, 3. Joynul Abedin, 4. Mostafa and absconding convict Sultan under Sections 302/149 of the Penal Code and convicted them there under and sen­tenced to imprisonment for life and also to pay a fine of Tk.5,000/-. each, in default to suffer rigorous imprisonment for 1 (one) year more. Being aggrieved and dissatis­fied thereby, the accused-respondents pre­ferred appeal before the High Court Division and the learned Judges of the High Court Division after hearing the par­ties arid on perusal of the evidence on record entertained the appeal and thereby set aside the impugned order of convic­tion. Against which, the State as petitioner has come up with the present petition for leave to appeal.
 
10. Syed Haider Ali, the learned Deputy Attorney General, appearing for the petitioner (State), submits that the High Court Division misread the evidence on record and came to a wrong decision by setting aside the impugned judgment and order of conviction so passed by the trial Court. He further submits that the learned Judges of the High Court Division failed to sift the evidence on record arrived at a decision causing miscarriage of justice.
 
11. We have heard the learned Deputy Attorney General for the petitioner and perused the materials available in record and reasons to believe that the findings and decisions arrived, at by the High Court Division do not suffer from any ille­gality/irregularity and as such the same deserves no interference by this Court. Accordingly, the petition for leave to appeal is dismissed.
 
Ed.