In the Supreme Court of Bangladesh High Court Division

(Criminal Revisional Jurisdiction)

Present:

Mr. Justice Md. Khairul Alam

Criminal Revision No. 3172 of 2017.

In the matter of: Rezzak

........ -Petitioner.

-Versus-

The State

.......... Opposite party. Mr. A.K.M. Habibur Rahman, Advocate

..... For the petitioner. Ms. Shiuli Khanom, D.A.G along with

Mr. S.M. Emamul Musfiqur, A.A.G

Mr. Md. Humayun Karim Siddique, A.A.G

………… For the state

Heard on: 29.10.2024 & Judgment on: 03.11.2024.

This Rule was issued calling upon the opposite party to show cause as to why the judgment and order dated 02.05.1917 passed by the learned Additional Sessions Judge, Netrakona in Criminal Appeal No. 06 of 2013 allowing the appeal in part and thereby convicting the petitioner under section 323 of the Penal Code and sentencing him to suffer rigorous imprisonment for 2 (two) months and also to pay a fine of Taka 500/- in default to suffer  rigorous  imprisonment  for  10  (ten)  days  more  upon modifying the judgment and order of conviction and sentence

dated  10.12.2012  passed  by  the  learned  Senior  Judicial Magistrate, Netrakona in G.R. No. 347(2)03 corresponding to T.R.  No.  2020  of  2008  arising  out  of  Kalmakanda  Police Station Case No. 03(10) 2003 convicting the petitioner under section 325 of the Penal Code and sentencing him to suffer rigorous imprisonment for a period of 01 (one) year and also to pay  a  fine  of  Tk.  5,000/-  in  default  to  suffer  simple imprisonment for 01 (one) month should not be set aside and/or pass such other or further order or order as to this court may seem fit and proper.

The prosecution story, in short, is that P.W.1, Md. Akter Hossain as informant lodged a First Information Report with the Kalmakanda Police Station implicating 7 accused persons including the petitioner alleging, inter alia, that in the morning of 04.09.2003, while the informant went to cultivate his land, found that the accused persons were cutting the demarcation line of plots No. 1327 and 1328 (the plot of the informant and the  accused)  to  increase  the  quantum  of  their  land.  The informant forbade them to do such work and returned home. On that day at about 3.00 p.m., the informant again went to the land and found that the accused doing the same thing. When the informant tried to resist the accused, accused Razzak beat him with a rod causing a fracture of one of his chest-bone. Accused Shamim dealt a lathi blow on the left elbow of the informant causing bleeding injury. Other accused persons also beat the informant  indiscriminately.  Hearing  the  hue  and  cry  of  the informant while the neighboring people rushed to the place of occurrence, the accused persons left the place. The informant was taken to the hospital and he was admitted therein and took treatment. Hence, the informant lodged the First Information Report.

The police after holding investigation submitted a Charge under sections 143/323/325/34 of the Penal Code against all the seven accused persons.

After  receipt  of  the  case  record  for  trial,  the  learned Senior  Judicial  Magistrate,  Court  No.  1,  Netrakona  framed charge against the accused under sections 143/323/325 of the Penal Code. The charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.

During the trial, the prosecution adduced as many as 5 P.Ws to prove the charge. After the prosecution witnesses the accused  were  examined  under  section  342  of  the  Code  of Criminal Procedure to which they again pleaded not guilty but did not adduce any defence witness.

The  defence  case  as  transpired  from  the  trend  of  the cross-examination is that the accused were innocent and they were falsely been implicated in this case because of the long- standing land dispute.

The  learned  Senior  Judicial  Magistrate,  Court  No.  1, Netrakona after considering the evidence on record found the petitioner Abdul Rezzak guilty under section 325 of the Penal Code and sentenced him as aforesaid.

Against the said judgment and order of conviction and sentence, the petitioner preferred an appeal before the Court of Sessions Judge, Netrakona which was heard by the Additional Sessions Judge, Netrakona.

After hearing the appeal the learned Additional Sessions Judge, Netrakona by the judgment and order dated 02.05.2017 dismissed the appeal but modified the sentence in the manner stated above.

Being aggrieved thereby the petitioner moved before this Hon’ble Court and obtained the Rule.

Mr.  A.K.M.  Habibur  Rahman,  the  learned  Advocate appearing for the petitioner submits that the prosecution has failed to establish the charge under section 323 of the Penal Code against the petitioner beyond any reasonable doubt and hence the petitioner is entitled to a benefit of the doubt, but the Courts below without considering the said aspect passed the impugned  judgment  and  order  of  conviction  and  sentence which cannot be sustained and is liable to be set aside.

On  the  other  hand,  Ms.  Shiuli  Khanom,  the  learned Deputy  Attorney  General  appearing  on  behalf  of  the  state supports the impugned judgment and order of conviction and sentence  and  submits  that  the  prosecution  proved  beyond reasonable doubt that the  petitioner armed  with  an iron  rod assaulted Md. Akter Hossain, the informant of the case hence, the  Courts  below  rightly  found  the  petitioner  guilty  under section 323 of the Penal Code and rightly passed the impugned judgment and order of conviction and sentence and she prays for discharge of the Rule.

The question to be adjudicated is whether the impugned judgment and order of conviction and sentence is sustainable with the law.

P.W. 1, Akter Hosen, the informant as well as the victim of the case stated that accused Razzak beat him with a rod causing a fracture of one of his chest-bone. P.W. 2, Alam Kha in his deposition stated that he had been plowing a plot with the tractor, near the plot of the occurrence. Hearing the hue and cry, he stopped the tractor and rushed to the place of occurrence and found accused Rezzaq beating the informant with a rod causing a fracture of his chest bone. P.W. 3, Roish Meah stated that hearing the hue and cry he went to the place of occurrence and found the informant lying on the ground with injuries. He heard about  the  incident  from  the  informant.  P.W.  4,  Shajahan deposed that he did not witness the occurrence, but soon after the occurrence he went to the place of occurrence and found the injured informant to take to the hospital. P.W. 5, Dr. Gulam Robbani deposed that on 04.09.2003 he examined victim Akter Hosen and found three injuries i.e. (1) one swelling over the left anterior chest wall about 3`` x 2`` (2) one swelling round the left elbow joint about 2`` x 2`` and (3) Multiple swelling of deferent sizes and shapes over the back, scalp, thighs, and legs. He  exhibited  the  injury  certificate  and  his  signature  therein which were marked as Exhibit Nos. 2 & 2(1) respectively.

It appears from the injury certificate (Exhibit No. 2) that on the date of occurrence, P.W.1 sustained injuries. P.W. 1 clearly stated that Abdul Razzaq dealt a lathi blow to his chest. Injury No.1 of the injury certificate corroborated with the said injury. The alleged occurrence took place in broad daylight and an  open  place.  P.W.  2  was  a  tractor  driver  who  had  been plowing  land  beside  the  place  of  the  occurrence.  P.W.  2 supported  the  evidence  of  P.W.1.  P.W. 3  and  4  had  been working in the field and went to the place of occurrence soon after  the  occurrence  and  found  the  informant  in  injured condition.  All  the  said  witnesses  are  impartial  and  natural, hence I do not find any reason to disbelieve these natural and impartial  witnesses.  Therefore,  I  am  of  the  view  that  the prosecution  by  adducing  evidence  proved  the  alleged occurrence beyond any reasonable doubt and the Courts below rightly passed the impugned judgment and order of conviction.

At the time of the occurrence, petitioner Abdul Razzaq was about 55 years old and the alleged occurrence took place more than 21 years ago. The injuries of the informant were not so  serious  and  admittedly,  there  was  a  long-standing  land dispute between the parties. Considering all these aspects of the case, I am inclined to reduce the sentence of the petitioner to the period as has already undergone.

Accordingly,  the  Rule  is  discharged  with  the  above modification in the sentence.

The petitioner is released from the bail bond. 

Send down the L.C.R. along with a copy of this judgment to the concerned Courts at once for information and necessary action.

Kashem/B,O