Case No: Criminal Petition for Leave to Appeal No. 262-264 of 2009
Judge: Md. Muzammel Hossain,
Court: Appellate Division ,,
Advocate: Mr. Abdul Baset Majumdar,,
Citation: VII ADC (2010) 358
Case Year: 2010
Appellant: The State
Respondent: Akter Hossain @ Khokan and another
Delivery Date: 2009-7-30
MM Ruhul Amin, C.J.
Md. Abdul Matin, J.
Md. Abdul Aziz, J.
Md. Muzammel Hossain, J.
……............Petitioner (In all the petitions)
Akter Hossain @ Khokan and another
…….……..Respondents (In Criminal Petition No. 262 of 2009)
Yusuf Howlader @ Mizanur Rahman and another
................Respondents (In Criminal Petition No. 263 of 2009)
Alamgir and another
…………….Respondents (In Criminal Petition No. 264 of 2009)
July 30, 2009.
High Court Division committed illegality in rejecting the death reference and allowing the said two appeals. He then submits that occurrence having been taken place in the broad daylight in the very nose of the informant and other eye witnesses who deposed consistently against the accused persons who caused injury to the deceased and also to the injured persons and there being no contradiction in the depositions of the witnesses, the conviction and sentence as passed and awarded by the learned trial judge being legal but the High Court Division erred in law in rejecting the reference and allowing the appeals. …. (6)
Nazrul Islam Talukder, Deputy Attorney General, instructed by B. Hossain, Advocate-On-Record-For the Petitioners (In all the petitions)
Abdul Basel Majumder, Senior Advocate, instructed by Mr. Mahbubar Rahman, Advocate-On-Record-For the Respondent No. 1 (In all the petitions)
Not Represented- Respondent No. 2 (In all the petitions).
Criminal Petition for Leave to Appeal No. 262-264 of 2009
(From the judgment and order dated 26.02.2009 passed by a Division Bench of the High Court Division in Death Reference No. 61 of 2005).
Md. Muzammel Hossain J.
The delay of 147 days in filing all the leave petitions is hereby condoned.
2. These three civil petitions for leave to appeal Nos. 262 of 2009, 263 of 2009 and 264 of 2009 have arisen out of the same judgment and order dated 26.02.2009 passed by a Division Bench of the High Court Division in Death Reference No. 61 of 2005 disposed of analogously with Criminal Appeal No. 2115 of 2005 and Criminal Appeal No. 2124 of 2005 respectively arising out of Druta Bichar Tribunal Case No. 35 of 2004 corresponding Barisal Kotwali Thana Case No. 68 date 28.11.2003 and G.R. No. 682 of 200 rejecting the death reference and allowing; the criminal appeals and acquitting the accused respondents from the charge levelled against them.
3. The prosecution case, in short, are that there had been a continuous enmity between the informant party and the F.I.R named accused persons including the convict appellant number 1 over the landed property since long; that on 28.10.2003 at about 11 A.M. the brother-in-law, namely, Md. Kamrul Islam Sohel (25) and the cousin brother-in-law, namely, Md. Chunnu Mollah came to the residence of the informant for paying a visit, that instantaneously, all the accused persons at about 12 noon over the enmity of the landed property rebuked the informant in filthy language and then, the aforesaid Sohel and Chunnu and the brother of the informant getting down in the courtyard requested the accused person to keep silent at the present period of Eidul Fitar; that thereafter, all the accused persons in a planned way in order to murder armed with the ramdao, leza, lathi, etc. attacked the informant party; that accordingly, the informant ran towards his residence; that accused Khokon in order to murder gave ramdao blow on the head of Sohel; that accused Jalal also gave ramdao blow on the two legs of Sohel and accused Alamgir gave ramdao blows on the two hands of Sohel causing grievous hurt on the tandon of the both legs and hands, that other accused persons also gave blows with ramdaos on the different parts of the body of the victim Sohel and ultimately the victim Sohel fell down being senseless; that in order to save, accused Chand dealt ramdao blow on the victim chunnu causing grievous hurt; that accused Atiqur and Shuruz gave blows on the victim Khokon causing grievous injuries on the different parts of his body and also on the head; that hearing alarm, the witnesses along with the many other people came to the place of occurrence and that assuming the victim Sohel as dead, all the accused persons carried the dead body in the hut of the accused Chand Suruz and Musharaf for the purpose of making it traceless; that the F.I.R. named accused persons thereafter, gave the salt upon the injuries of the victim Sohel; that due to the cause of pressure, threatening of life to the local people and the witnesses given by the accused persons no body dare to proceed towards the accused persons; that finding on other alternative, not within the knowledge of accused persons, the wife of the informant, namely, Parvin Begum through her father informed the matter to the police for rescuing the victim Sohel; that on the same day at about 4 P.M. the concerned police authority coming to the residence of the accused person, recovered the victim Sohel from the residence of the accused Chan, that instantaneously, the victims Sohel, Khokon and Chunnu were sent to Barisal Medical college Hospital and the attending Doctor then declared the victim Sohel as dead; that one of the accused, namely, Atiqur Rahman was arrested in the premises of the Medical College and he was handed over to the custody of the police. That thereafter the informant on 28.10.2003 at about 7.30 P.M. appearing in the Kotwali police Station with the abovementioned fact lodged the First Information report against fourteen accused persons including the convict appellants.
4. The short facts of the defense case are that the accused persons including the convict-appellant-respondents are innocent and they all are falsely implicated in the case out of grudge and enmity. The deceased Sohel is a terror and he lost his life at the time of doing terrorist acts on a paddy land and the convict-appellant-respondent No.1-Akter Hossain @ Khokan is a crippled man and he fell down before the alleged occurrence and also was under treatment in the hospital.
5. At the trial prosecution examined 20 witnesses whereas the defense examined 12 witnesses.
6. Mr. Nazrul Islam Talukder, the learned Deputy Attorney General appearing for the petitioners in all the petitions submits that the High Court Division committed illegality in rejecting the death reference and allowing the said two appeals. He then submits that occurrence having been taken place in the broad daylight in the very nose of the informant and other eye witnesses who deposed consistently against the accused persons who caused injury to the deceased and also to the injured persons and there being no contradiction in the depositions of the witnesses, the conviction and sentence as passed and awarded by the learned trial judge being legal but the High Court Division erred in law in rejecting the reference and allowing the appeals. He finally submits that the evidence of informant P.W. 1 was corroborated in material particulars by the P.Ws. 2, 3, 4, 5, 6, 7, 8 and 9 and as such the impugned judgment and order passed by the High Court Division not being tenable in law is liable to be set aside.
7. We have heard the learned Deputy Attorney General for the petitioner and perused the impugned judgment and order of the High Court Division and also other materials available on record.
8. The submissions of the learned Deputy Attorney General for the petitioner merits consideration. Accordingly, in these three petitions leave is granted on consideration of the ground Nos. 3, 4 and 6.
9. Preparation of paper book is dispensed with as prayed for.
Let the operation of the impugned judgment and order dated 26.02.2009 passed by the High Court Division in Death Reference No.61 of 2005 be stayed till disposal of the appeal.