The State Vs. Md. Moksed Ali, 2 LNJ (2013) 429

Case No: Death Reference No. 37 of 2007

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mr. Md. Bahar Uddin-Al-Razi,Mr. M.A. Mannan Mahon,,

Citation: 2 LNJ (2013) 429

Appellant: The State

Respondent: Md. Moksed Ali

Subject: Remand of a Case,

Delivery Date: 2012-11-20

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Md. Ziaul Karim, J.
And
A. N. M. Bashir Ullah, J.
 
Judgment
20.11.12
  The State
-Versus-
Md. Moksed Ali
...Condemned Prisoner
with
Md. Moksed Ali,
. . .Convict-Appellant.
-Versus-
The State
...Respondent.
 

Code of Criminal Procedure (V of 1898)
Sections 376, 464, 465 and 467
It appears from the record that the learned Judge of the trial Court neither followed the provisions of sections 464 and 465 of the Code of Criminal Procedure nor took any positive step for taking the opinion as to the physical and mental condition of the accused from the Pabna Mental Hospital. It appears that before commencement of trial the accused was sick and not fit for facing trial and as such the accused was seriously prejudiced by the trial of the case for which the impugned judgment and order of conviction and sentence is set aside and the case is remanded to the Court of Sessions, Rajshahi for new trial enabling both the parties to produce their respective evidence afresh for new trial, after obtaining medical report from the concerned authority regarding the physical and mental condition of the accused. . . . .(19 to 24)

Mr. M. A. Mannan Mohan,D.A.G. with
Mr. Md. Mahbub Ul Alam,A.A.G.
Mr. Md. Osman Goni, A.A.G. and
……For the State
Mr. Sanker Kumar Sen, Advocate,
…..For the condemned prisoner (As State defence lawyer).
Mr. Md. Bahar Uddin Al Razi, Advocate,
… For the convict-appellant.

Death Reference No. 37 of 2007 with Jail appeal No. 534 of 2007
 
JUDGMENT
Syed Md. Ziaul Karim, J:
 
This reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Additional Sessions Judge, second Court, Rajshahi, (briefly as Judge) for confirmation of death sentence of condemned-prisoner.
 
By the above appeal the appellant has challenged the legality and propriety of the judgment and order of conviction and sentence dated 24-05-2007 passed by learned Judge convicting the appellant under Section 302 of the Penal Code and sentencing him to death by hanging.
 
This death reference and the above appeal having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment.
 
The prosecution case as projected in the first information report (briefly as FIR) and unfurled at trial are that victim Rashida Khatun aged about thirty eight years (since deceased) younger sister of Md. Montu (PW-1) was married with Md. Moksed Ali (condemned-prisoner) son of late Basu Mandal before 22/23 years of the occurrence. During their wedlock two sons and one daughter born. Their conjugal life was not happy as her husband was a wine drinker. Her husband used to torture her for tifling matter. On 02-08-2002 at noon her accused husband came from outside and picked up a quarrel with her for food and abused her in filthy languages, she, then came out from the house and sat on eastern side of a road adjacent to her house (briefly as P.O.). Then at 1:15 p.m. her accused husband dealt a hasua blow upon her neck causing profuse bleeding injuries. On her screaming, her son, sister and other locals namely Sima (PW-3), Md. Milon (PW-2), Md. Sowdagar (PW-4), Akramul Huq (PW-5), Md. Abdul Hamid(PW-6) and Md. A. Wahab (PW-8) happened at the spot and her accused husband departed from the scene with hasua. She died on the spot. Having had heard the incident her brother Md. Montu rushed to the P.O. and found her dead-body. Later, after being informed from the above witnesses he as informant lodged the FIR which was recorded as Charghat P.S. Case no. 03 dated 02-08-2002 corresponding to G.R. no. 491 of 2002.
 
The Police after investigation submitted charge-sheet under section 302 of the Penal Code accusing the condemned-prisoner as accused.                            
 
Eventually, the accused was called upon to answer the charge under section 302 of the Penal Code to which he pleaded not guilty and claimed to be tried.
 
In course of trial the prosecution in all examined fourteen witnesses out of twenty three charge-sheeted witnesses and the defence examined none.
 
After closure of the prosecution case the accused was examined under Section 342 of the Code again he repeated his innocence but led no evidence in defence.
 
The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It was divulged in defence that deceased Rashida Khatun died by falling on a sharp cutting weapon.
 
After trial the learned Judge convicted the accused as aforesaid holding:
  1. That the prosecution successfully proved the charge under Section 302 of the Penal Code against the accused.
  2. The prosecution by uniform and consistent evidence succeeded to prove the complicity of the accused beyond all reasonable doubt.
The learned Deputy Attorney General appearing for the State candidly submits that on perusal of the record it appears that the accused was a man of unsound mind and was a mental patient during trial and there is no materials on record to show that he was quite fit to face the trial. He lastly submits that the case should be sent to the trial Court for holding new trial.
 
The learned Counsels appearing for the condemned-prisoner by their common contentions seek to impeach the impugned judgment and order of conviction and sentence on two fold arguments:
        Firstly: The appellant was a mental patient and was of unsound mind during trial, consequently incapable of making his defence but there is no materials on record to show that he was capable for facing trial. There is no finding of the trial Court to that effect which seriously prejudiced the convict.
        Secondly It is a fit case to send it for new trial.
 
Before deciding the case on merit we are inclined to answer the submissions advanced by both the learned counsels regarding new trial.
 
On going to the materials on record it transpires that before commencement of trial accused Md. Moksed Ali was detained in Rajshahi Central Jail wherein he was under going treatment as a mental patient. Accordingly, Senior Jail Superintendent, Central Jail, Rajshahi, by his Office letter dated 17-10-2002 sought for an order to the Magistrate, first Class “Kha” Zone Rajshahi for transfer of the accused from Rajshahi central Jail to Pabna District Jail for better treatment at Pabna Mental hospital pursuant to the advise of medical expert. Meanwhile, on 19-10-2002 the accused was transferred to Pabna District Jail for such treatment. It is a matter of surprise that the  learned Magistrate without receiving any report regarding progress of treatment transferred the case record to the Court of Sessions Judge, Rajshahi for trial.
 
On receipt of the case record the learned Sessions Judge, Rajshahi by the order dated 10-11-2002 took cognizance of the offence under Section 302 of the Penal Code against the accused  and issued PW, fixing 27-11-2002. Subsequently the learned Judge by the order dated 27-11-2002 called for a medical report from concern Jail authority regarding fitness of the accused for facing trial fixing 15-02-2003 for report. Meanwhile the Jail authority made different correspondence regarding the health condition of the accused. Later, the Pabna Mental hospital without furnishing any report asked to produce any nearest relation of the accused for collecting past history regarding such disease. Eventually, one of the nearest relation namely Abdul Hamid was directed to appear before the Court on 28-04-2004, but we do not find any material that said Abdul Hamid either appeared in the Court or before the authority of Pabna Mental hospital. It appears from the order dated 28-04-2004 that the case was transferred to the second Court of Additional Sessions Judge, Rajshahi for trial who ultimately in subsequent dates without any specific finding as to the mental and physical condition of the accused commenced the trial by framing charge and after trial convicted the accused as aforesaid.
 
Chapter XXXIV provides the Provisions for procedure of trial incase of a person being lunatic.
 
For the convenience of understanding Sections 464 and 465 of the Code read as hereunder:

    “Section 464- Procedure in case of accused being lunatic: (1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the district or such other medical officer as the Government directs, and thereupon shall examine such Surgeon or other officer as a witness, and shall reduce the examination to writing.
    (1A) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of section 466.
    (2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence, he shall record a finding to that effect and shall postpone further proceedings in the case.
 
Section 465- Procedure in case of person being lunatic before Court of Sessions- (1) If at the trial of any person before a Court of Sessions, it appears to the Court that such person is of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case.
    (2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.”
 
It appears from the record that the learned Judge of the trial Court neither followed the above Provisions nor took any positive step for taking the opinion asto the physical and mental condition of the accused from the Pabna Mental hospital.
 
After meticulous examination of the record we find that before commencement of trial the accused was sick and not fit for facing trial. Therefore we hold that the accused was seriously prejudiced by the trial of the case.
 
It is a matter of great regret that the learned Judge of the trial Court in his judgment dated 24-05-2007 observed in the following manner:

ইতিপূ­র্বে আসামী পাগল ছিল কিনা তাহা বিস্তারিত আ­লাচনা হই­তে আদালত সিদ্ধা­ন্ত আসিয়া­ছে যে, ঘটনার সময় আসামী মানষিক রোগী বা পাগল ছিল না।
 
The aforesaid observations is absolutely erroneous inasmuchas there is no finding of the learned Judge regarding physical and mental condition of the accused at the time of trial.
 
Moreso, in such situation earlier the learned Sessions Judge was not empowered by law to transfer the case to the second Court of Additional Sessions Judge, for holding trial without obtaining any opinion from the concern authority regarding physical and mental condition of the accused. The learned Judge of the trial Court also without collecting such report concluded the trial and convicted the accused as aforesaid which, in our view seriously prejudiced the accused. So both the learned judges of the Court below including the learned Magistrate violated the mandatory Provisions of law as provided above.
 
Therefore, we hold that the case should be remanded to the Court of Sessions, Rajshahi for holding new trial, pursuant to the Provisions laid down in Section 376 of the Code which reads as hereunder:
 
      “376-  Power of High Court Division to confirm sentence or annul conviction. In any case submitted under section 374, the High Court Division-
  1. may confirm the sentence, or pass any other sentence warranted by law, or
  2. may annul conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or
  3. may acquit the accused person;
        Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of.
 
In the result:-
  1. Death reference no. 37 of 2007 is rejected.
  2. The impugned Judgment and order of conviction and sentence dated 24-05-2007 passed by learned Additional Sessions Judge, second Court, Rajshahi in Session Case no. 313 of 2002 is hereby set aside and the case is remanded to the Court of Sessions, Rajshahi for new trial enabling both the parties to produce their respective evidence afresh for new trial, after obtaining Medical report from the concern authority regarding the physical and mental condition of the accused.
  3. Accordingly Jail appeal no. 534 of 2007 is allowed in terms of the aforesaid observations.
The Office is directed to send down the records at once.
      
Ed.