IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Present

Mr. Justice Mamnoon Rahman

Criminal Revision No. 4351of 2023

In the matter of:

Md. Rostam Ali and another.

……. petitioners.

                 -Vs-

The State

…….. opposite party. Mr. Faisal Mahmud Faizee, Senior Advocate With

Mr. Syed Minhaj Udddin, Advocate

…..for the petitioners.

Mr. Mohammad Taifoor Kabir, D.A.G

with

Mr. Md. Lokman Hossain, A.A.G

and

Mr. Md. Hatem Ali, A.A.G.

......for the opposite party.

Heard on:30.05.2024 And Judgment On: 03.06.2024

In an application under section 439 read with section 435 of the Code of Criminal Procedure, rule was issued on 31.10.2023 in the following terms:

“Let a rule be issued calling upon the opposite party to show cause as to why the impugned judgment and order of conviction and sentence dated 25.09.2023 passed by the  learned  Additional  Sessions  Judge,  1st  Court, Brahmanbaria  in  Criminal  Appeal  No.  71  of  2021 allowing the appeal in part and thereby affirming the order  of  conviction  and  sentence  dated  17.02.2021  in respect  of  the  petitioners  passed  by  learned  Chief Judicial Magistrate, Brahmanbaria in C.J.M. Case No. 406  of  2020  corresponding  to  G.R.  No.  17  of  2020 (Ashuganj) arising out of Ashuganj Police Station Case No. 17 dated 18.01.2020 convicting the petitioner No. 1 under Section 326/114 of the Penal Code and sentencing him to suffer rigorous imprisonment for a period of 4 (four) years and also to pay a fine of Tk. 1,000/-(one thousand), in default to suffer simple imprisonment for 1(one) month more and also convicting the petitioner No. 2 under Section 323 of the Penal Code and sentencing him to suffer imprisonment for a period of 1(one) year and also to  pay a fine of Tk. 500/-  (five  hundred)  in default to suffer simple imprisonment for 15(fifteen) days more and setting aside the aforesaid judgment and order of conviction and sentence dated 17.02.2021 in respect of order 5(five) convict-appellants, should not be set aside, and/or pass such other or further order or orders as to this Court may seem fit and proper.”

The prosecution case, in short, is that the informant Abdur Rouf is the father of the witness NO 1 namely Mahbub Alam (injured) and grandfather of the witness NO. 2 namely Mayazi Mahbub (injured) that the informant party and the accuseds are the neighbor of the same village and few criminal cases are pending regarding Kharasar Dighi between parties that the accused party were put threat to life to the informant for purpose of the pending criminal cases and resulting the informant party lodges two GD entry in the Ashugonj Police Station being GD No. 492 dated 14.07.2019 and 705 dated 20.08.2019 that after knew about these G.D. on 17.01.2020 at 08:00 hours the accused persons were attacked the victims with pre-plan and grievous hurt the victims and the accused No.1 took a mobile set price about Tk.10,570/- from the witness No. 1 and accused No. 7 also took a apple mobile set price about Tk. 70,000/- from the witness  No.1, after shouting the victims thereafter accuseds were rushed to the place of occurrence and the informant party found the victims lying as grievous hurt, bleeding injuries over their bodies and senseless, thereafter the informant took them to the Sadar Hospital of Brahmanbaria by Microbus and then the authority of the said Hospital referred to the Dhaka Medical Hospital for better treatment of the victim, hence the case.      

The police registered the case as Ashuganj Police Station Case No.  17  dated  18.01.2020  and  proceeded  with  the  same.  The investigating Officer visited the place of occurrence, prepared a sketch map  and  also  seized  the  Alamat.  The  investigating  Officer  also examined the witnesses under section 161 of the Code of Criminal Procedure  and,  thereafter,  submitted  a  charge  sheet  No.  57  dated 23.04.2020. Eventually, the case was ready for trial before the Court of the Chief Judicial Magistrate, Brahmanbaria being C.J.M. Case No. 406 of 2020 corresponding to G.R. Case No. 17 (Ashuganj). The trial Court framed charges against the accused persons and proceeded with the trial. During trial, the prosecution examined as many as 06(six) witnesses.  The  Court  below  examined  the  accused  persons  under section 342 of the Code of Criminal Procedure, wherein the accused persons  pleaded  not  guilty  and  tried  to  adduce  defence  witnesses. Consequently,  the  defence  adduced  02(two)  witnesses  who  were examined by the defence and cross-examined by the prosecution. The trial  Court  after  hearing  the  parties  and  considering  the  facts  and circumstances,  vide  the  impugned  judgment  and  order  dated 17.02.2021 convicted and sentenced the accused persons including the petitioner.  Thereafter,  the  petitioner  preferred  appeal  before  the Sessions Judge, Brahmanbaria being Criminal Appeal No. 71 of 2021, and the same was heard and disposed of by the learned Additional Sessions  Judge,  1st  Court,  Brahmanbaria  who  vide  the  impugned judgment  and  order  dated  25.09.2023  allowed  the  appeal-in-part

Mr. Faisal Mahmud Faizee, Senior Advocate along with Mr. Syed Minhaj Uddin, the learned Advocates appearing on behalf of the petitioners submit that both the Courts below without applying their judicial  mind  and  without  considering  the  facts  and  circumstances, most  illegally  and  in  an  arbitrary  manner  passed  the  impugned judgment  and  order  of  conviction  and  sentence  which  requires interference by this Court. He submits that in the different cases in hand the  prosecution  miserably  failed  to  prove  the  charge  against  the petitioner  beyond  all  reasonable  doubt  and  there  are  material contradictions between the evidence both oral and documentary and the petitioners are liable to get the benefit of the doubt. He submits that the prosecution  case  in  hand  failed  to  prove  the  place  and  manner  of occurrence, as well as, that there are serious contradictions between the testimony of the prosecution witnesses. The learned counsel further submits  that  there  are  material  contradictions  in  between  the  First Information Report (FIR) story and the deposition made by P.W. 1, who  is  the  informant  as  many  as  there  is  no  eye  witness  of  the occurrence  except  the  victim  and  also  none  of  the  independent witnesses deposed against the present petitioners.

Mr. Md. Lokman Hossain, Assistant Attorney General with Mr. Md. Hatem Ali, Assistant Attorney General appearing on behalf of the State vehemently opposes the Rule. He submits that the Courts below on proper appreciation of the facts and circumstances, materials on record, evidence both oral and documentary passed by the impugned judgment and order which requires no interference by this court.

I have perused the impugned judgment and order of conviction and sentence passed by both the Courts below, revisional application, grounds taken thereon, paper and document annexures, as well as, the Lower Court Records. I have also heard the learned Advocate for the petitioners as  well as the learned Deputy  Attorney  General for the opposite party.

On perusal of the same, it transpires that the petitioner along with  06  others  stood  charge  for  the  offence  under  section 143/341/323/325/326/307/379/506/114 of the Penal Code. During trial, the court below-framed charge and prosecution examined as many as 06(six) witnesses and the defence adduced two witnesses. The trial court  on  consideration  of  evidence  both  oral  and  documentary convicted  and  sentenced  the  present  petitioners  along  with  other accused  persons.  However,  on  appeal  the  lower  appellate  court affirmed the judgment and order of conviction and sentenced so far it relates to the present petitioners rather than acquitting the other accused persons, who were convicted in the trial Court.

P.W. 1 in his deposition stated that the occurrence took place at about 08:00 P.M. on the date of occurrence in front of the house of Abdul Mozid Sarkar. The accused persons indiscriminately injured the victim, namely Hasan, as such, the informant petitioner Rustom Ali ordered to kill the victim and also gave a Dao blow in the head, the victim also accused Zakir, Jahir, and others including the petitioner Hasan Miah injured the victim with different sharp cutting weapons. They also took some money from his pocket as per P.W. 1. After hearing hue and cry, he went to the place of occurrence and took them to Hospital for treatment. In his cross-examination he stated that the FIR was drafted by a lawyer and the same was typed in the local Bazar. He  also  stated  that  he  did  not  mention  in  the  statement  how  he identified  the  accused  persons  and  further  stated  that  the  place  of occurrence was 200 yards from his house. P.W. 2 is a doctor who proves the medical certificate. P.W. 3 is an Investigating Officer, who in his deposition stated that he investigated the matter, went to the place of occurrence, prepared a seizure list, sketched a map, examined the witnesses under section 161 and ultimately submitted the charge sheet. P. W. 4 who is the victim Mahabub in his deposition stated that while he was returning home the accused persons attacked and injured him indiscriminately.  In  his  cross-examination  he  admitted  about  the previous enmity. He also stated that there was no light at the time of occurrence. P.W. 5 who is a local witness stated about the occurrence, however, in his cross-examination he stated that he was the nephew of the informant. P.W. 6 is the son of the victim Mahabub stated that the accused  persons  attacked  his  father.  However,  from  the  trend  of examination and cross-examination of D.Ws. 1 and 2, it transpires that the  petitioners  were  not  present  at  the  time  of  occurrence  in  any manner.

On meticulous perusal of the evidence, it transpires that though as per the informant, the occurrence took place in front of the house of Motin Sarkar who was not examined. It also clearly transpires that although  the  informant  stated  about  the  manner  of  injuries  by  a different person though he is not an eye witness, as per the informant he went to the place of occurrence after hearing hue and cry. It also appears  that  there  are  many  discrepancies  regarding  the  injuries  as found in the medical report and evidence for which the lower appellate Court acquitted 06(six) accused persons. It further transpires that in the present case in hand no single independent witnesses were examined, though as per the informant, many people gathered immediately after the occurrence in question. The manner of occurrence as stated by the victim P.W. 4 cannot be accepted as because a person which under attacked cannot specify the injury caused by a different person, There is a clear admission that there are serious enmities in between the parties regarding land and others aspect as many as the occurrence took place where  are  insufficient  light  and  the  identification  of  the  accused persons are not proved beyond all reasonable doubt. Hence, I find substance in this Rule, Accordingly, the Rule is made absolute and the impugned judgment and order passed by the courts below, so far it relates to the present petitioners are hereby set aside and the petitioners are released from their bail bonds.

Send  down  the  Lower  Court  Records  with  the  copy  of  this judgment to the concerned Court below at once.

(Mamnoon Rahman, J:)

MatiarRahaman (BO)