The State Vs. Shym Dulal Debnath and another, 3 LNJ (2014) 758

Case No: DEATH REFERENCE NO. 27 OF 2007

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mr. Abdul Baset Majumdar,Mr. Md. Aminur Rashid (Razu),Mr. M.A. Mannan Mahon,Ms. Shirin Afroz ,,

Citation: 3 LNJ (2014) 758

Case Year: 2014

Appellant: The State

Respondent: Shym Dulal Debnath and another

Subject: Commutation/Reduction of Sentence,

Delivery Date: 2012-11-11


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Md. Ziaul Karim, J
And
A.N.M. Bashir Ullah, J.
 
Judgment on
08.11.2012
and
11.11.2012
  The State,
Vs.
1. Shym Dulal Debnath,
2. Md. Saiful Islam alias Md. Saiful Islam Khan alias Dense Ali Khan.
...Condemned prisoners
(In Death Reference No. 27 of 2007)
With
Shymdulal Debnath,
...Convict-appellant.
Vs.
The State ...Respondent.
(In Criminal Appeal No. 1144 of 2007)
With
1. Saiful Islam Khan alias Md. Saiful Islam Khan alias Dense Ali Khan,
...Convict-appellant
Vs.
The State ...Respondent.
(In Criminal Appeal No. 1310 of 2007)
With
Shaymdulal Debnath,
...Convict-appellant.
Vs.
The State,
. . . Respondent.
(In Jail Appeal No. 233 of 2007)
With
Saiful Islam Khan alias Md. Saiful Islam Khan alias Dense Ali Khan,
...Convict-appellant.
Vs.
The State ...Respondent.
(In Jail Appeal No. 234 of 2007)
 
 
 
Narcotics Control Act (XX of 1990)
Section 19(1)
Clause (b) of the Table
The evidence of the prosecution witnesses in respect of recovery of the incriminating heroin from the exclusive possession of accused Shymdulal Debnath and Md. Saiful Islam at the P.O. are consistent, uniform and corroborative with each other with all material particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses having no reason whatsoever to depose falsely against the condemned-prisoners. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility. . . . (34)
 
Code of Criminal Procedure (V of 1898)
Section 376
They are young men. Record indicates that condemned-prisoners are not the hard criminals and have been languishing in the condemned Cell for about five years with suffering of mental agony of death within the death cell. Taking an account of aggravating and mitigating circumstances ends of justice will be met if death sentences be altered to one of imprisonment for life. Condemned prisoners (1) Shymdulal Debnath, (2) Md. Saiful Islam alias Md. Saiful Islam Khan alias Dense Ali Khan each thus, stand sentenced to imprisonment for life with a fine of Tk.5,000/- each in default to suffer rigorous imprisonment for three months more. . . . (42)

Mr. M.A. Mannan Mahon, D.A.G. with
Mr. Md. Osman Goni, A. A. G. and
Mr. Md. Ensan Uddin Sheikh, A. A. G.
. . . For the State
(In Death Reference No. 27 of 2007)

No one appears,
. . .For the convict-appellant.
(In Criminal Appeal No. 1144 of 2007)

Mr. Abdul Baset Majumder, Advocate with
Mr. M. Syed Ahmed, Advocate,
. . . .For the convict-appellant.
(In Criminal Appeal No. 1310 of 2007)

Mr. Md. Aminur Rashid, Advocate,
. . . For the convict-appellant.
(In Jail Appeal No. 233 of 2007)

Mrs. Shirin Afroz, Advocate
. . . For the convict-appellant.
 (In Jail Appeal No. 234 of 2007)

Death Reference No. 27 of 2007
With Criminal Appeal No. 1144 of 2007
with Criminal Appeal No. No. 1310 of 2007
with Jail Appeal No. 233 of 2007
with Jail Appeal No. 234 of 2007
 
JUDGMENT
Syed Md. Ziaul Karim, J:
 
This Death Reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Metro-politan Additional Sessions Judge, fourth Court, Dhaka, for confirmation of death sentences of condemned-prisoners.

By the above appeals the appellants have challenged the legality and propriety of the Judgment and order of conviction and sentence dated 27-03-2007 passed by learned Metrop-olitan Additional Sessions Judge, fourth Court, Dhaka, in Metro. Session Case no. 1738 of 2006, convicting the appellants under Clause 1(b) of the Table of Section 19(1) of the Narcotics Control Act, 1990 (briefly as Act, 1990) and sentencing each of them to death by hanging and also to pay a fine of Tk. 5,000/-each.
    
This death reference, all the above appeals 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 C-Md. Altaf Hossain (PW-1) came to learn from a secret source before six months from the occurrence that a gang of accused were the heroin-traffickers. Later, at the instruction of Major Md. Kamruzzaman, Company Commander of CPC-3, Cop-Md. Nazmul Haq (PW-2) acquainted with them incognito as a purchaser of heroin. They (accused) proposed to sale one K.G. of heroin at the price of Tk.80 lacs. He (PW-2) agreed to it and he would take delivery of the aforesaid heroin on 10-07-2006 at 5-30 p.m. at the rented house no. 106/1, Senpara Parbata, Mirpur-10, DMP of Zoynal (briefly as P.O.). Accordingly on 10-07-2006 since 5:00 p.m. he (PW-1) along with other law enforcers lay in wait around the P.O. to nab the traffickers. Then, Cop. Md. Nazmul (PW-2) and Sepoy  Md.Masud Rana (PW-4) went inside the P.O. to take delivery of heroin which was kept in a bag wrapped by talc paper made of reskin. At the time of delivery and having had heard the signal the above law enforcers happened at the scene and nabbed the accused on the spot. DAD Md. Akmal Hossain (PW-3) then prepared seizure list in presence of locals namely Md. Zakir Hossain (PW.-7), Md. Monir Hossain (PW-8). The accused identified themselves as Shymdulal Debnath and Saiful Islam and admitted that they brought the heroin by smuggling from boarder area. Later the accused and seized heroin were handed over to the Mirpur P.S. With these allegations the prosecution was launched by lodging a FIR by PW-1 as informant which was recorded as Mirpur P.S. Case no. 32(7) of 2007.

The Police after investigation submitted charge sheet under Clause 1(b) of the Table of Section 19(1) of the Act-1990 accusing the condemned-prisoners as accused.

Eventually, the case was taken up for trial by the Metropolitan Additional Sessions Judge, fourth Court, Dhaka, wherein the accused were called upon to answer the charge under Clause 1(b) of the Table of Section 19(1) of the Act 1990 and the accused on dock pleaded not guilty and claimed to be tried.

In course of trial the prosecution in all, examined nine witnesses out of twenty charge sheeted witnesses and the defence examined none.

After closure of the prosecution case the accused on dock were examined under Section 342 of the Code and again they repeated their innocence and 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 defencee that due to internal feud they were falsely implicated out of vengeance by their local rivals.

After trial the learned Judge convicted the accused as aforesaid holding:
(a) The prosecution successfully proved the charge under Clause 1(b) of the Table of Section 19(1) of the Act-1990 against the convicts.
(b) The prosecution succeeded to prove the recovery of the alleged heroin from the exclusive control and possession of the convicts.
(c)The evidence of prosecution witnesses are consistent, uniform and corroborative with each other with all material particulars in respect of recovery of incriminiting materials from the accused.
 
The learned Deputy Attorney General appearing for the State supports the reference and submits that the Court below after considering evidence on record rightly found that the incriminating heroin were recovered from the exclusive control and possession of the convicts. He adds that all the locals and seizure list witnesses categorically proved the said recovery from the convicts. So the conviction and sentence awarded upon them was just and proper which calls for no interference by this Court.
 
The learned Counsels appearing for the condemned–prisoners by their common contentions seek to impeach the impugned judgment and order of conviction and sentence on four fold arguments:
Firstly:  The prosecution failed to prove the recovery of alleged heroin from the possession of the appellants.
Secondly: The prosecution failed to examine the independent witness in support of the charge. So the conviction and sentence is not sustainable in the eye of law.
Thirdly: There is no nexus between the convicts and the tenant of the P.O. So there was no cause to go to that P. O. by the convicts. Therefore, the manner of occurrence is quite doubtful.
Fourthly: The Judgment and order of conviction and sentence based on misreading and non-consideration of the evidence on record which cannot be sustained in the eye of law.

In order to appreciate their submissions we have gone through the record and given our anxious considerations to their submissions.

Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
P.W. 1, C-Md. Altaf Hossain was the informant. He deposed that before six month of the occurrence Cop-Nazmul acquainted with some heroin traffickers. Afterwards at the instruction of the Company Commander Major Kamruzzaman Cop. Nazmul in the guise of a heroin purchaser maintained a good relation with the traffickers. Accordingly on 10-07-2006 the accused invited Cop. Nazmul to take delivery of one K.G. of heroin at the price of Tk. eighty lacs from the P.O. On the same day at 4-30 p.m. he along with other law enforcers took possession around the P.O. incognito. At 5:00 p.m. accused Shymdulal Debnath took them in the house of Zoynal tenant of Sazzad at 106/1, Senpara Parbata (P.O.). Later at their signal he along other with law enforcers entered into that house. At the time of handing over the said heroin the accused Saiful and Shymdulal Debnath were caught red-handed with heroin. A seizure list was prepared and the accused with heroin were handed over to the Police Station. On the following day, with these allegations he lodged the FIR (Exhbt. 1) and his signature on it (Exhbt. 1/1). He proved the seized heroin (Mat. Exhbt. 1). He identified the accused Dulal and Saiful on the dock.

In cross-examination he denied the suggestion that no heroin was seized from accused Shymdulal who was a cloth trader and accused Saiful was not present at the P.O. He stated that their body was searched by public. They did not take the money from the exchequer. He denied the suggestion that he was deposing falsely.

PW-2 Cop. Md. Nazmul Haq was the member of raiding party. He deposed that before six month of the occurrence he was acquainted with the heroin traffickers. On 10-07-2006 accused proposed him to present at Mirpur-10 to take deliver one K.G. heroin at the price of Taka eighty lacs. He along with Sepoy-Masud were present there in the guise of heroin purchasers. At this, accused Shymdulal took them at the house of Sazzad Hossain rented by one Zoynal at 106/1, Senpara Parbata, Mirpur-10. At his signal other law enforcers happened at the scene and at the time of handing over heroin accused were caught red-handed. DAD- Akmal prepared seizure list in presence of witnesses. The heroin wrapped with golden colour paper made in Pakistan were recovered from the accused. He identified the same as (Mat. Exhbt. 1) and the accused on dock.

In cross-examination he stated that he cannot remember when the I.O. examined him. and the statement made before I.O. was true. He denied the suggestion that no heroin was recovered from the possession of accused.

P.W. 3 DAD-Md. Akmal Hossain was the member of the raiding party. He deposed that before 5/6 months of the occurrence Cop. Nazmul acquainted with the heroin traffickers and at the instruction of the Company Commander he maintained a good relation with them in the guise of a heroin purchaser. At one stage on 10-07-2006 Cop. Nazmul was asked to present at Mirpur-10 to take delivery of one K.G. of heroin at the price of taka eighty lacs. He along with other law enforcers were ambushed around the P.O. At the time of taking delivery of heroin from the P.O. he along with other law enforcers entered into there and caught the accused red-handed along with heroin. He seized and prepared seizure list (Exhbt.2) and his signature on it (Exhbt.2/1). He identified the accused on dock.

In cross-examination he stated that he made statement before the I.O. and denied the suggestion that he was deposing falsely.

P.W. 4 Sepoy Md. Masud Rana was the member of raiding party. He deposed that before 6/7 months of the occurrence Cop. Nazmul was acquainted with heroin traffickers. On 10-07-2006 he along with other law enforcers went to Mirpur-10 from-where he along with Cop. Nazmul went at the P.O. house. At the time of delivery of heroin by the accused other law enforcers happened at the scene and nabbed the accused. DAB-Akmal prepared seizure list. He identified accused on dock.

In cross-examination he deposed that he could not remember when I.O. interrogated him and denied the suggestion that he deposed falsely.

P.W. 5 Md. Zoynal, a rickshaw-puller, P.W.6 Md. Tofazzal Hossain are the local witnesses. They deposed that Police made them witnesses but they had no knowledge about the occurrence.

In cross-examination they stated that they did not see the recovery of heroin.

P.W.7 Md. Zakir Hossain, a local seizure list witness. He deposed that before 4/5 months the occurrence took place. He had an electronic shop at 107/1, Senpara Parbata. At 3:30 /4:00 p.m. a man came and asked him to go with him and told that heroin was recovered from accused Saiful and Shymdulal and took his signature on a blank paper (Exhbt.2) and his signature on it as (Exhbt.2/2). He could not remember whether the accused were present at the dock.

In cross-examination he stated that he did not see to seize any alamats.

P.W. 8 Md. Monir Hossain, a local seizure list witness. He deposed that the occurrence took place before 3/4 months and he was dealing in battle-nut; at 11/12 0’Clock members of the RAB called him and they showed one packet of heroin which was recovered from the possession of the accused and took his signature on a blank paper (Exhbt.2) and his signature on it (Exhbt.2/3).

In cross-examination he stated that he did not see the recovery of the alamats and put his signature on a blank paper.

P.W. 9 S.I. Md. Mohsin Ali deposed that the case was subsequently entrusted to him for investigation. He visited the P.O. and consulted the sketch map and index prepared by former I.O., S.I. Al-Mamun. He recorded the statements of the witnesses under Section 161 of the Code. He referred the seized heroin for chemical examination and collected the report. He proved the same (Exhbt.3). After investigation he submitted charge-sheet under Clause 1(b) of the Table of Section 19(1) of the Act 1990 accusing the condemned-prisoners as accused.

In cross–examination he stated that the owner of the P.O. house Sazzad Hossain did not reside there. He denied the suggestion that he made perfunctory investigation and submitted charge sheet.

These are all of the evidence on record adduced by the prosecution to prove the charge.
In course of trial the prosecution in all examined nine witnesses. Of them P.Ws.1, 2, 3, and 4 were the members of the raiding party, of whom PWs. 2 and 4 went inside the P.O. in the guise of purchasing heroin from the accused and P.W.1 is the informant of the case. P.Ws. 5 and 6 are the local neighbouring witnesses. PWs. 7 and 8 are the seizure list witnesses, P.W. 9 was the investigating officer and submitted charge-sheet accusing the condemned-prisoners as accused.

On appraisal of the evidence on record it transpires that the prosecution case was absolutely rest upon the evidence of law enforcers aswellas the seizure list witnesses. P.W.2 Cop. Nazmul Haq testified that before six months of the occurrence he developed a good relation in the guise of heroin purchaser with the gang of heroin traffickers i.e. accused. Accordingly on 10-07-2006 at the instruction of their Company Commander he along with P.W.4, Sepoy-Masud Rana went at the P.O. to take delivery of one K.G. of heroin at the price of taka eighty lacs from the accused. Afterwards at the time of delivery of heroin the other law enforcers happened at the scene and caught the accused namely Symdulal Debnath and Saiful Islam red-handed with heroin. P.W.3, DAD-Md. Akmal Hossain prepared seizure list in presence of P.W. 7 Md. Zakir Hossain and PW. 8 Md. Monir Hossain. Later, the accused along with heroin were handed over to the local Police Station. P.W. 4, Sepoy Md. Masud Rana supported the evidence of P.W. 2 in respect of recovery of alleged heroin from the possession of the accused. P.W.1 and P.W. 3 were the members of the raiding party. They corroborated the evidence of PWs. 2 and 4. P.Ws. 7 and 8 are the seizure list witnesses, they categorically stated that they put their respective signature in the seizure list and the seized heroin were shown to them. Although P.Ws. 5 and 6 did not support the evidence of other law enforcers and seizure list witnesses but the same will not materially affect the merit of this case. PW-9 S.I. Mohsin Ali investigated the case. He referred some sample of seized heroin to the Directorate of Narcotic Control for its examination by chemical Examiner. After examination, the examiner opined in the following manner:
খাকি  খামে একটি পলি কাগজের প্যাকে প্রাপ্ত বাদামী গুড়া পদার্থে হেরোইন পাওয়া গিয়াছে

So, heroin was detected in the seized incriminating article. PW-9, then obtained the report. He proved the same as exhibit-3. So the evidence of the above prosecution witnesses in respect of recovery of the incriminating heroin from the exclusive possession of accused Shumdulal Debnath and Md. Saiful Islam at the P.O. are consistent, uniform and corroborative with each other with all material particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses having no reason whats-oever to depose falsely against the condemned-prisoners. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility.

We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
c)  In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.
d) There must be clear and unequivocal proof of the corpus delicit.
e) The hypothesis of delinquency should be consistent with all the facts proved.

Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

The credit to be given to the statement of a witness is a matter not regulated by rule of procedure, but depends upon his knowledge of fact to which he testifies his disinterestedness, his integrity and his veracity. Apportion of oral evidence depends on such variable in consistence which as a human nature can not be reduced as a set formula (40 DLR 58).

The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness.

Therefore, we find that there are cogent convincing and unimpeachable evidence on record regarding the complicity of the accused in respect of recovery of the alleged heroin from their exclusive control and possession. The prosecution successfully proved the charge against the accused Shymdulal debnath and Md. Saiful Islam beyond all reasonable doubt. 

Moreso, the impugned judgment and order of conviction is well founded in the facts and circumstances of the case. So the submissions advanced by the learned Deputy Attorney General prevails and appears to have a good deal of force. On the contrary the submissions advanced by the learned Counsels for the defence are not the correct exposition of law. So we are unable to accept their submissions.

In the light of discussions made above and the preponderant judicial views emerging out of the authorities refer to above we are of the view that the impugned judgment and order of conviction sufers from no legal infirmities which calls for no interference by this Court. 

In respect of sentence of condemned-prisoners we hold that they are young men. Record indicates that condemned-prisoners are not the hard criminals and have been languishing in the condemned Cell for about five years with suffering of mental agony of death within the death cell. Taking an account of aggravating and mitigating circumstances ends of justice will be met if death sentences be altered to one of imprisonment for life. Condemned prisoners (1) Shymdulal Debnath, (2) Md. Saiful Islam alias Md. Saiful Islam Khan alias Dense Ali Khan each thus, stand sentenced to imprisonment for life with a fine of Tk.5,000/- each in default to suffer rigorous imprisonment for three months more.

In the result:-
 
(a) The Death Reference no. 27 of 2007 is rejected.
(b) The impugned judgment and order of conviction and sentence dated 27-03-2007 passed by learned Metropolitan Additional Sessions Judge, fourth Court, Dhaka, in Metro. Session Case no. 1738 of 2006 is confirmed with the modification of sentence to the effect that they are convicted under Clause 1(b) of the Table of Section 19(1) of the Narcotics Control Act-1990 and each of them sentenced to suffer imprisonment for life and also to pay a fine of Tk.5,000/- each in default to suffer rigorous imprisonment for  three months more.
(c) In view of the Provisions laid down in Section 35A(1) of the Code of Criminal Procedure the total period the condemned-prisoners have been in custody before conviction in connection with this offence shall be deducted from the period of imprisonment for life awarded to them.
(d) Accordingly, Criminal appeal nos. 1144 of 2007 and 1310 of 2007, Jail appeal nos. 233 of 2007 and 234 of 2007 are allowed in part in the above terms.
The office is directed to send down the records at once.
 
Ed.