The State Vs. Md. Rasel, 2016(1) LNJ (AD) 5

Case No: CRIMINAL PETITION FOR LEAVE TO APPEAL No. 196 OF 2011

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Motaher Hossain,,

Citation: 2016(1) LNJ (AD) 5

Case Year: 2016

Appellant: The State

Respondent: Md. Rasel

Delivery Date: 2014-04-28

APPELLATE DIVISION
(CRIMINAL)
 
Md. Muzammel Hossain, CJ,
Surendra Kumar Sinha, J,
Md. Abdul Wahhab Miah, J
A. H. M. shamsuddin Choudhury, J
 
Judgment on
28.04.2014
 
The State, Represented by the Deputy Commissioner, Narayangonj
.....Petitioner
Versus
Md. Rasel
.....Accused-Respondents
 
Penal Code (XLV of 1860)
Section 304 Part II
The established principle of law is that when in an altercation which is trivial in nature the accused without any premeditation in the hit of passion suddenly dealt  blows not by any deadly weapon but by a fist on the vital organs of the victim causing bleeding injuries as a result the victim died not instantaneously on the spot but in the hospital a few hours after the occurrence, the requisite intention to commit murder could not be attributed to the accused rather he could be attributed with the knowledge that he was likely to cause death, but without any intention to cause death or to cause such bodily injuries as was likely to cause death within the purview of Section 304 part II of the Penal Code.…(21)
 
Penal Code (XLV of 1860)
Section 304 Part II
The accused respondent in the heat of passion suddenly dealt fist blows to the nose, mouth and head of the victim Shanto causing bleeding injuries and therefore the requisite intention to commit murder could not be attributed to the accused respondent, rather he could be attributed with the knowledge that he was likely to cause death but without any intention to cause death or to cause such bodily injuries as was likely to cause death which brings the case within the purview of Section 304 Part II of the Penal Code.… (22)
 
State Vs. Tayab Ali, 40 DLR (AD) 6; AIR 1979 S.C 1532; AIR 1983 S.C. 463; Bangladesh Vs. Siddique Ahmed, 31 D.L.R (AD) 29; Thola Vs. State of Tamil Nadu, AIR 1984 S.C. 759; Jagrup Singh Vs. The State of Haryana, AIR 1981 S.C. 1552 and, AIR 1979 SC 133 ref.
 
For the Petitioners : Mr. Motaher Hossain, Deputy Attorney General instructed by Mrs. Sufia Khatun, Advocate-on-Record.

For Respondents : N/R.
 
CRIMINAL PETITION FOR LEAVE TO APPEAL No. 196 OF 2011
 
JUDGMENT
 
Md. Muzammel Hossain, CJ:
 
This Criminal petition for leave to appeal  at the instance of the accused respondent is directed against the impugned Judgment and Order dated 04.01.2011 passed by a Division Bench  of the High Court Division in Death Reference No. 173 of 2005, heard along with Criminal Appeal Nos. 5038 of 2005 and 5105 of 2005 and Jail Appeal No. 1428 of 2005 rejecting the Death Reference and  dismissing the Criminal Appeals and  the Jail appeal and   thereby affirming with alteration and modification the judgment and order of conviction and sentence dated 29-11-2005 passed by the learned Sessions Judge, Narayangonj in Sessions Case No. 77 of 2005  arising out of  Fatullah Police Station Case No.48 dated 27.12.2001 corresponding to G.R. Case No. 841 of 2001 under Sections 302/34 of the Penal Code.
 
It is to be noted that as against the judgment and order dated 29-11-2005 passed by learned Sessions Judge the accused respondent Md. Rasel alias Russel preferred Criminal Appeal No.5038 of 2005 and the accused Md. Rubel preferred Criminal Appeal No.5105 of 2005 before the High Court Division.  A Division Bench of the High Court Division by the impugned Judgment and Order dated 04-01-2011 dismissed the appeals with alteration and modification  of the conviction  and sentence of the accused respondent Rasel alias Russel and the accused Md. Rubel from under sections 302/34 of the Penal Code to one under sections 304 Part II/34 of the Penal Code and  thereby reduced the sentence of the accused respondent Rasel alias Russel  from death penalty to rigorous imprisonment for 10 (ten) years and to pay a fine of Tk. 10,000/- in default to suffer rigorous imprisonment for one year more and also  reduced the sentence  of the accused Rubel  from rigorous imprisonment for life and to pay a fine of Taka 20,000/- in default to suffer rigorous imprisonment for one year more to rigorous imprisonment for 10 (ten) years and to pay a fine of Tk. 10,000/- in default to suffer rigorous imprisonment for one year more. 
 
The prosecution case, in brief, is that, on 26.12.2001 at 10:00 a.m. Shafiqul Islam Shanto, the son of the informant Md. Serajul Islam (P.W.1), was returning home after playing game of cricket at Eidgah field. When Shanto came in front of their house, the accused-persons namely, Rasel alias Russel, Rubel and Rabiul, sons of A. Mannan Driver blocked his way and forcibly snatched sunglass from his pocket. In the event of objection raised by Shafiqul Islam Shanto, an altercation took place between them. At the behest of the accused Md. Rubel, the accused Rasel alias Russel dealt fist blows on the nose, mouth and head of the victim Shafiqul Islam Shanto causing bleeding injuries and as a result, the victim Shafiqul Islam Shanto fell to the ground and blood came out from his mouth and nose. When the people rushed to the place of occurrence the accused-persons took to their heels.  Md. Saiful Islam, the younger brother of the informant, along with his relations took the victim Shanto to Khanpur Hospital for treatment where the doctor on duty gave the victim initial treatment and considering his critical condition the victim was sent to the Dhaka Medical College Hospital for proper treatment. The victim died in the Dhaka Medical Hospital at 5:30 p.m.
 
The First Information Report (F.I.R) was lodged by Md. Serajul Islam (P.W.1), the father of the victim Shafiqul Islam Shanto. The police after taking up investigation of the case visited the place of occurrence, examined witnesses under Section 161 of the Code of Criminal Procedure and prepared Sketch map with index and after completion of investigation, having found a prima facie case, submitted charge sheet being No.341 dated 30.09.2002 of Fatullah Police Station, Narayanganj under Sections 302/34 of the Penal Code against the accused persons including the accused respondent.
 
The learned Sessions Judge, Narayanganj at the commencement of trial of the case framed charge under Sections 302 / 34 of the Penal Code against the accused persons including the accused-respondent. The charge was read over and explained to the accused- respondent, Md. Rasel alias Russel and the accused Md. Rubel, to which they pleaded not guilty and claimed to be tried. The accused Md. Rabiul, had been all throughout absconding and the charge could not be read over and explained to him.
 
In the trial the prosecution in all examined as many as 16 witnesses but none was examined on behalf of the defence. On the closure of the evidence of the prosecution the accused respondent Md. Rasel alias Russel and the accused Md. Rubel were examined under Section 342 of the Code of Criminal Procedure whereupon they pleaded not guilty informing the Court that they would not adduce any evidence on their behalf. Because of abscondence the accused Md. Rabiul could not be examined under Section 342 of the Code of Criminal Procedure.
 
From the trend of cross-examination of the prosecution witnesses the defence case, as it transpires is that being hit by a cricket ball the victim Shanto had died.  The accused persons pleaded not guilty and prayed to be acquitted.
 
The learned Sessions Judge, Narayanganj after hearing both the prosecution and the defence and on perusal of the evidence and materials on record by judgment and order dated 29.11.2005 convicted and sentenced the accused respondent Md. Rasel alias Russel and the accused Rubel under sections 302/34 of the Penal Code and sentenced the accused  respondent Md. Rasel alias Russel to death and the accused Rubel to suffer rigorous imprisonment for life and to pay a fine of Tk. 20,000/- in default to suffer rigorous imprisonment for one year more. The learned Sessions Judge, Narayanganj referred the Death Reference No. 173 of 2005 to a Division Bench of the High Court Division. Against the aforesaid judgment the accused respondent Rasel alias Russel preferred Criminal Appeal No. 5038 of 2005 and the accused Rubel preferred Criminal Appeal No. 5105 of 2005 before the High Court Division. Both the Death Reference, the Criminal Appeals and the Jail Appeal were heard analogously.  The High Court Division by the impugned judgment and order dated 04.01.2011 rejected the Death Reference and dismissed both the Criminal Appeals and the Jail Appeal with alteration and modification of their conviction and sentence from under Sections 302/34 of the Penal Code to one under sections 304 Part II/ 34 of the Penal Code and sentenced both of them to suffer rigorous imprisonment for 10 years and to pay a fine of Tk. 10,000/- in default to suffer rigorous imprisonment for 1 year each.
 
Being aggrieved by the  aforesaid judgment and order  dated 4-01-2011 passed by the High Court Division the State preferred  Criminal Petition for Leave to Appeal  No. 196 of 2011 before this Division.
 
Mr. Motahar Hossain, the learned Deputy Attorney General, appearing for the petitioner submits that the impugned judgment and order of the High Court Division clearly shows non-application of judicial mind in rejecting  the Death Reference and dismissing the  Criminal Appeals and Jail Appeal with modification and alteration of conviction and sentence of the accused respondent from under sections 302/34  to one under section 304 Part II /34 of the Penal Code  and thereby the High Court Division altered the sentence of the accused respondent from death penalty to rigorous imprisonment for 10 years  and fine of  Tk. 10,000/- in default to suffer rigorous imprisonment for one year more. He then submits that the judgment and order passed by the High Court Division clearly shows non-consideration of the evidence on record both oral and documentary while the learned Sessions Judge  rightly convicted  the accused respondent  on consideration of oral and documentary  evidence on record as the prosecution proved the guilt of the accused respondent beyond  reasonable doubt and as such the impugned judgment and order passed by the High Court Division is liable to be set aside and the judgment and order of conviction and sentence passed  by the learned Sessions Judge be restored.
 
We have heard the learned Advocates for both sides and perused the Criminal Petition for Leave to Appeal, impugned judgment and order passed by the High Court Division and other materials on record.
 
The informant Mohammad Serajul Islam, as P.W.1 deposed that on 26.01.2001 at 12:30 pm. while his son, Shafiqul Islam Shanto, was returning home after playing game of cricket at Eidgah field the accused persons, namely, Md. Rasel alias Russel and Md. Rubel, blocked his way and forcibly snatched a sunglass from his pocket when Shanto resisted an altercation took place between them and the accused  respondent Rasel alias Russel at the behest of accused Rubel kept dealing fist blows to Shanto causing bleeding injuries and as a result Shanto fell to the ground and blood came out from his nose and mouth. At the relevant time the informant was at a garment factory at Khanpur. Having received information about the occurrence he came to Khanpur Hospital to see Shanto in senseless condition and heard about the occurrence from his younger sister Shamima, younger brother Saiful, and Shanto’s friends Rajib and Sajib. Considering the critical condition, Shanto was sent to the Dhaka Medical College Hospital by a Microbus with the help of his brother Saiful and other relatives. He forthwith went to Dhaka Medical College Hospital to hear that Shanto had died. He came back from Dhaka and lodged the First Information Report (hereinafter referred to as FIR) of the case with Fatullah Police Station. This witness further deposed that police held inquest on the dead body of Shanto in Dhaka Morgue and prepared inquest report. He identified the accused respondent Rasel alias Russel and Rubel, in the dock. He further deposed that at the time of occurrence the victim Shanto being a student of Class IX was 16 years old. In his cross-examination this witness stated that having heard about the occurrence from his younger brother, Saiful and younger sister, Shamima he lodged the F.I.R. of the case with Fatullah Police Station. He denied the defence-suggestions that the accused-persons did not deal any blow to his son Shanto or that Shanto died when he went to play cricket or that he falsely implicated the accused persons in the case out of grudge and enmity.
 
On perusal of the evidence on record, we have found that the informant of the case, Md. Sirajul Islam, father of the victim Shafiqul Islam Shanto, as P.W.1 proved the prosecution case. In this case the prosecution examined 16 witnesses on their behalf. But there were 5 eye witnesses, namely, P.W.3 Md. Irfan Sarder, P.W.5 Saiful Islam, P.W.6 Nurul Islam, P.W.9 Moslam and P.W.11 Neela Begum who  witnessed the occurrence from a close distance. P.W.3 Md. Imran Sarder, a neighbour of the informant P.W.1, as an eye witness corroborating the evidence of other P.Ws deposed that as a neighbour he knew the informant and his son Shanto and that on 26.12.2001 at 12.00/12.30 p.m. he witnessed an altercation at the time of snatching a sunglass by the accused respondent Rasel alias Russel and the accused Rubel from the victim Shanto and suddenly at the behest of the accused Russel the accused respondent Russel dealt fist blows to Shanto causing bleeding injuries as a result Shanto fell to the ground and blood came out from his nose and mouth. He along with Saiful Islam (P.W.5), uncle of Shanto, poured water on the head of Shanto. Shanto was taken to the Khanpur Hospital and thereafter he was taken to Dhaka Medical College Hospital where he died. P.W.5 Saiful Islam another eye witness of the occurrence corroborating other prosecution witnesses in material particulars deposed that on 26.12.2001 at 12.00/12.30 p.m. at the behest of the accused Rubel, the accused respondent Rasel alias Russel kept assaulting Shanto with fist blows causing bleeding injuries and as a result Shanto fell to the ground in injured condition and blood came out from his nose and mouth. This witness along with his sister Shamima and neighbour Nurul Islam took Shanto initially to the Khanpur Hospital. Subsequently he along with his sister took Shanto to the Dhaka Medical Collage Hospital. P.W.6 Nurul Islam, a neighbour of the informant P.W.1, saw the occurrence from a close distance and he corroborated the evidence of other prosecution witnesses, namely, P.W.3, P.W.5, P.W.9 and P.W.11 in material particulars. Moslem, a shopkeeper of the locality being an eye witness of the occurrence as P.W.9 corroborating the evidence of other prosecution witnesses deposed that on 26.12.2001 at 12/12.30 p.m. while he was staying beside the place of occurrence he saw that at one stage of altercation accused respondent Rasel alias Russel dealing fist blows to Shanto caused injuries and as a result Shanto fell to the ground. Shanto was taken initially to the Khanpur Hospital by his relatives and thereafter he was taken to the Dhaka Medical Collage Hospital where he died. Another eye witness, Neela Begum, an old lady of the neighbourhood, as P.W.11 corroborating the evidence of other prosecution witnesses deposed that on the date of occurrence at noon when she was going to take bath she saw the accused respondent Rasel alias Russel and the accused Rubel to deal fist blows on the head of Shanto causing injuries. Subsequently she heard that Shanto was taken to the Dhaka Medical Collage Hospital for treatment where he died. All these eye witnesses corroborated the evidence of the informant P.W.1 and other prosecution witnesses and they also corroborated each other in material particulars and thus they proved the prosecution case beyond reasonable doubt. P.W.2 Shamim Ahamed deposed that when he went to Khanpur Hospital to see Shanto, the occurrence was narrated to him by Shanto and his friends Sajib and Rajib. Other prosecution witnesses, namely, P.W.4 Mrs. Hena Begum, mother of the victim Shanto, P.W.7 Mojibur Rahaman, P.W.8 Boshir, P.W.10 Jalal Hossain and P.W.12 Nazir Hossain were in the neighbourhood at the relevant time but they were not the eye witnesses. They deposed that hearing hue and cry they went to the place of occurrence immediately after the occurrence and came to learn that  when Shanto was returning  home after playing cricket game from Eidgah Field the accused respondent Rasel alias Russel and the accused Rubel blocked his way and forcibly snatched his sunglass which resulted in an altercation between them. At the behest of the accused Rubel the accused respondent Rasel alias Russel dealt fist blows to Shanto causing bleeding injuries and as a result blood came out from his nose and mouth and he fell to the ground. They heard that Shanto was taken to the Hospital where he died. They also corroborated the evidence of other prosecution witnesses. P.W.13 Dr. Md. Nur Hossain who performed the post-mortem examination of the dead body of the victim Shanto and proved the post-mortem report which corroborated the evidence of the prosecution witnesses in respect of the injuries inflicted to the victim Shanto. P.W.14 Md. Feroz Khan as a part Investigation Officer deposed that during investigation he visited the place of occurrence, drew sketch map with index and recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure. P.W.15 Md. Abdul Hye, Officer-in-Charge, Fatullah Police Station another Investigation Officer, took over the charge of investigation after departure of P.W.14 Feroz Khan. P.W. 15 after completion of investigation having found a prima facie case against the accused persons submitted charge sheet under the aforesaid provisions of law against them including the accused  respondent Rasel alias Russel.
 
From a careful scrutiny of the evidence on record and so also in view of the discussions made hereinabove, it is clear that at the time of snatching a sunglass an altercation took place between the victim Shafiqul Islam Shanto and the accused Rubel and the accused respondent Rasel alias Russel and at the behest of the accused Rubel, the accused respondent Rasel alias Russel suddenly dealt fist blows on the nose, mouth and head of the victim Shanto causing bleeding injuries and as a result Shanto fell to the ground and blood came out from his nose and mouth. Shanto was initially taken to the Khanpur Hospital then to the Dhaka Medical College Hospital in a critical condition where he died on the same date at 5-30 P.M. From the evidence on record it appears that the victim Shanto was killed by fist blows of the accused respondent Rasel alias Russel at the behest of accused Rubel. So it is proved beyond resonable doubt that the accused persons, namely, Md. Rasel alias Russel and Md. Rubel killed the victim Shanto.
 
Now, the pertinent question to answer is whether the offence as committed by the aforesaid accused-persons will come within the purview of an offence of murder punishable under section 302 of the Penal Code or culpable homicide not amounting to murder punishable under section 304 of the Penal Code.
 
Culpable homicide has been defined in section 299 of the Penal Code as under: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injuries as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”.

According to Section 300 of the Penal Code Culpable homicide amounted to murder in any of the four circumstances “:..... If the act by which the death is caused is done with the intention of causing death or-
         2ndly, if it is done with the intention of causing such bodily injuries as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
         3rdly, if it is done with the intention of causing bodily injuries to any person and the bodily injuries intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
         4thly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injuries as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injuries as aforesaid.”
 
In the case of State –vs- Tayab Ali 40 DLR (AD) 6 this Division underlined the difference between culpable homicide amounting to murder and culpable homicide not amounting to murder in the following terms : All murders are culpable homicide but all culpable homicides are not murder. Excepting the General Exceptions attached to the definition of murder an act committed either with certain guilty intention or with certain guilty knowledge constitutes culpable homicide amounting to murder. If the criminal act is done with the intention of causing death then it is murder clear and simple. In all other cases of culpable homicide, it is the degree of probability of death from certain injuries which determines whether the injuries constitute murder or culpable homicide not amounting to murder. If death is likely result of the injuries it is culpable homicide not amounting to murder, and if death is the most likely result, then it is murder. The difference between "Culpable Homicide" and "Culpable Homicide amounting to Murder is the mere degree of probability of the death being caused; when death is probable, it is Culpable Homicide and when death is most probable, then it is Murder". Culpable homicide is not murder when the case is brought within any of the five Exceptions to section 300 of the Penal Code. In order to prove the charge of murder the prosecution must be required to bring the case under any of the four clauses of section 300 of the Penal Code. The prosecution case as appears from the evidence of the informant P.W.1 and corroborated by five eye witnesses, namely, P.W.3, P.W.5, P.W. 6, P.W.9 and P.W.11 is that when the victim Shafiqul Islam Shanto after playing game of cricket at Eidgah field came in front of their house, accused Rasel alias Russel, Rubel and Robiul blocked his way and forcibly snatched a sunglass from his pocket when Shanto raised objection an altercation took place between them. At the behest of the accused Rubel, the accused respondent Rasel alias Russel suddenly dealt fist blows on the nose, mouth and head of Shanto causing bleeding injuries as a result Shanto fell to the ground and blood came out from his nose and mouth. Thereafter, Shanto was taken to the Khanpur Hospital wherefrom he was transferred to the Dhaka Medical College Hospital where he died on the same day at 5.30 P.M. So, there is no doubt that the death of Shanto occurred as a result of the fist blows dealt by the accused respondent Russel at the behest of the accused Rubel. We have to decide whether the accused respondent Russel committed culpable homicide amounting to murder or culpable homicide not amounting to murder. In this context it is worthwhile to refer to the following decisions of the appex courts of the Sub-Continent.
 
In the case reported in AIR 1979 S.C 1532 the Supreme Court of India held that as a general rule a person who voluntarily inflicts injuries on another so as to endanger his life must always, except under extraordinary circumstances, be taken to know that his act is likely to cause death. In the same case the Supreme Court observed that the question whether the accused had the knowledge that his act was likely to cause death is a question of fact depending upon the circumstances of the particular case, the weapon used, the part of the body on which the injuries was inflicted, the number of the injuries caused, the deliberateness of the act etc. In the case of Jagtar Singh v. State of Punjab reported in AIR 1983 S.C. 463 the relevant fact is that the deceased Narinder Singh accompanied by Romesh Kumar was proceeding towards Nandan Cinema. When they were passing in front of the house of the accused appellant Jagtar Singh, deceased Narider Singh was injured by the projecting parnala of the house of the appellant. Deceased Narinder Singh protested to the accused appellant and asked him to raise the height of the parnala. There was exchange of abuses in this back ground, accused appellant Jagtar Singh and Joginder Singh caught hold of Narinder Singh and on being instigated by Joginder Singh, the accused appellant Jagtar Singh gave one blow with knife which landed on the chest of deceased Narinder Singh. After some time Narinder Singh succumbed to his injuries. The appellant Jagtar Singh also caused injuries to the companion of deceased Narinder Singh. In this case the Court found that there was no premeditation and no malice and the quarrel took place on the spur of the moment. The meeting was a chance meeting. The appellant never expected to meet the deceased.  The quarrel was of the trivial nature even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. The Supreme Court of India observed: “In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injuries which was likely to cause death. Therefore, the appellant is shown to have committed an offence under Section 304, Part II of the I.P.C. and a sentence of imprisonment for 5 years will meet the ends of justice.” Accordingly, the appeal was partly allowed, the conviction of the appellant for an offence under Section 302 of the Indian Penal Code and sentence of imprisonment for life were set aside. Appellant was convicted for having committed an offence under Section 304, Part II of the Indian Penal Code and he was sentenced to suffer rigorous imprisonment for 5 years.
 
In the case of Government of Bangladesh vs Siddique Ahmed reported in 31 D.L.R (AD) 29 the Appellate Division observed: “Section 304 of the Code which consists of two parts, does not create any offence but provides for the punishment of manslaughter or culpable homicide not amounting to murder. The Section makes a distinction in the award of punishment. Under the first part of the Section, the intention to kill is present, and the act would have amounted to murder if the act is done with the intention of causing such bodily injuries as is likely to cause death, but the act having fallen within any one of the five exceptions, in Section 300 of the Code, the offence will fall within its ambit. The second part of the Section is attracted to a case where the act is done with the knowledge likely to cause death but without any intention of causing death or to a case where bodily injuries is caused as is likely to cause death. The first part applies to a case where there is guilty intention, and the second part where there is no such intention, but there is guilty knowledge”. In the case of Thola vs State of Tamil Nadu reported in AIR 1984 S.C. 759 the fact was that the accused started protest using filthy language against certain organisers of a chit fund who had no connection with the deceased, in front of the house of the deceased.  Hearing the noise the deceased came out of his house and asked the accused to  leave the place but the accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance. The Supreme Court of India held that in the circumstances of the case though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and therefore, he could be attributed with knowledge that he was likely to cause an injuries which was likely to “cause death”. In such a situation he could not be convicted under S. 302 of the Penal Code. Accordingly, he was convicted under section 304 Part II of the Penal Code.
 
Culpable homicide is not murder when the case falls within any of the five exceptions mentioned in section 300 of the Penal Code. In the case of Jagrup Singh v. The State of Haryana reported in AIR 1981 S.C. 1552 the Supreme Court of India held that where the accused struck the deceased with the blunt side of a gandhala in the heat of the moment without premeditation and in a sudden fight, the case would be culpable homicide not amounted to murder pursuant to Exception 4 to Section 300 of the Penal Code. Clause “Thirdly” of Section 300 is not applicable to such a case. The Supreme Court of India held that the accused would be convicted under Section 304 Part II of the Penal Code and not under Section 302 of the Penal Code. In this context it is profitable to reproduce Exception 4 to section 300 of the Penal Code which reads as under “Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.”  In the case reported in AIR 1979 SC 133 the Supreme Court of India enumerated the elements of Exception 4 in the following  manner: (1) without premeditation;(2) in a sudden fight; (3) in the heat of passion; (4) upon a sudden quarrel; and (5) without the offender taking undue advantage or without acting in a cruel or unusual manner. From the facts and circumstances of the instant case it appears that the case does not fall under any of the circumstances as stated in section 300 of the Penal Code. Rather this case falls under Exception 4 to Section 300 of the Penal Code.
 
In view of the foregoing decisions the established principle of law is that when in an altercation which is trivial in nature the accused without any premeditation in the hit of passion suddenly dealt  blows not by any deadly weapon but by a fist on the vital organs of the victim causing bleeding injuries as a result the victim died not instantaneously on the spot but in the hospital a few hours after the occurrence, the requisite intention to commit murder could not be attributed to the accused rather he could be attributed with the knowledge that he was likely to cause death, but without any intention to cause death or to cause such bodily injuries as was likely to cause death within the purview of Section 304 part II of the Penal Code.
 
In this case at the time of snatching of a sunglass an altercation took place between the victim Shanto and the accused respondent Rasel alias Russel and the accused Rubel and without any pre-mediation in the heat of the passion the accused respondent Russel suddenly dealt fist blows on the neck, mouth and head of the victim Shanto causing bleeding injuries as a result Shanto fell to the ground and blood came out from his nose and mouth. There was no intention of causing death or causing any such bodily injuries as was likely to cause death.  The altercation was trivial in nature and there was no use of any deadly weapon to cause the death of the victim Shanto. Moreover, the victim did not met his death instantaneously after the occurrence on the spot. In fact he died in the Dhaka Medical Collage Hospital a few hours after the occurrence.  From the facts and circumstances of the case and in view of the aforesaid decisions we are of the view that the accused respondent in the heat of passion suddenly dealt fist blows to the nose, mouth and head of the victim Shanto causing bleeding injuries and therefore the requisite intention to commit murder could not be attributed to the accused respondent, rather he could be attributed with the knowledge that he was likely to cause death but without any intention to cause death or to cause such bodily injuries as was likely to cause death which brings the case within the purview of Section 304 Part II of the Penal Code. Therefore, the High Court Division rightly found that the accused respondent Rasel alias Russel committed culpable homicide not amounting to murder under sections 304 Part II/34 of the Penal Code and convicted and Sentenced him there under to suffer rigorous imprisonment for 10 years and to pay a fine of Tk. 10,000/- in default to rigorous imprisonment for 1 (one) year more.
 
In view of the discussions made herein above, and so also on consideration of the facts and circumstances of the case we  are of the view that there was no illegality in the impugned judgment and order passed by the High Court Division in dismissing the appeals and affirming the judgment and order dated 29-11-2005 passed by the learned Sessions Judge, Narayangonj in Sessions Case No. 77 of 2005 with alteration of conviction from under sections 302/34 to one under Sections 304 part II and 34 of the Penal Code and reduction of sentence imposed upon the accused respondent Rasel alias Russel  from death penalty to rigorous imprisonment for 10 (ten) years and to pay a fine of Tk. 10,000/- in default to suffer rigorous imprisonment for one year more. Consequently, the High Court Division rightly passed the impugned judgment and order dismissing the Criminal Appeal No.5038 of 2005 and the Jail Appeal No.1528 of 2005 and affirming the judgment and order passed by the learned Sessions Judge in Sessions Case No. 77 of 2005 with alteration of conviction and reduction of sentence. The Death Reference was also rightly rejected by the High Court Division.

         In the result, the instant Criminal Petition for Leave to Appeal is dismissed. The impugned judgment and Order of conviction and sentence dated 04-01-2011 passed by the High Court Division is affirmed so far as it relates to the accused respondent Rasel alias Russel.

Ed.