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Microsoft Word - Crl. Rev. 843 of 2009 _PC_ _Discharged_ _2.7.24_

1

Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No. 843 of 2009

Md. Asan alias Ashasan

...Convict-petitioner

          -Versus-

The State

...Opposite party

Mr. Najmul Karim, Advocate

...For the convict-petitioner Mr. S.M. Golam Mostofa Tara, D.A.G with Mr. A. Monnan, A.A.G

...For the State

Heard on 30.06.2024

 Judgment delivered on 02.07.2024

On an application filed under Section 439 read with Section 435  of  the  Code  of  Criminal  Procedure,  1898  Rule  was  issued calling  upon  the  opposite  party  to  show  cause  as  to  why  the impugned  judgment  and  order  dated  01.03.2009  passed  by Jananirapatta  Bighnakari  Aporadh  Daman  Tribunal  and  Special Session Judge, Court No. 2, Rajshahi affirming the judgment and order  of  conviction  and  sentence  dated  14.09.2004  passed  by Additional District Magistrate, Rajshahi in Durgapur P.S. Case No. 11 dated 22.02.2000 corresponding G.R. No. 65 of 2000 convicting the  petitioner  under  Section  324  of  the  Penal  Code,  1860  and sentencing  him  thereunder  to  suffer  rigorous  imprisonment  for 1(one) year 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 on 16.02.2000 at 4.30 pm  accused  persons  1.  Kajem,  2.  Kasim,  3.  Azi,  4.  Taser,  5. Lokman,  6.  Aichand  and  7.  Asan  armed  with  hasua,  stick  etc attacked the house of the informant Md. Mostafizur Rahman and illegally detained his brother Habibur Rahman. The accused Kajem dealt hasua blows on his cheek and right elbow and tried to abduct him from the house. At that time, the informant tried to save his brother but the accused Aziz dealt lathi blows on different parts of his body. In the meantime, the locals assembled at the place of occurrence and the accused persons fled away. At that time, Md. Meser Ali, the father of the informant, was returning home via the house of the accused-persons from Kashipur Government Primary School by bicycle. At that time, those accused persons and Sonera and Hasen beat him and snatched away the bicycle valued at Tk. 3,500. The accused Lokman snatched away Tk. 720 and the key of the school and other documents from the father of the informant and again beaten him. At that time, to save his life the father of the informant took shelter in the east bhiti hut of Satter and locked the door. Following the father of the informant, the accused persons entered the house of Satter and by breaking the door brought him out of the house and again beaten him. The accused Hasan dealt hasua blows on his forehead to kill him. The accused Tasir dealt hasua blows on the left hand. Consequently, he sustained injury on his finger. The accused Taser also dealt lathi blows on the left elbow of the father of the informant and at one point in time, the accused Asan tried to slaughter the father of the informant. The witnesses Azim, Nurul, Mridha, Sukur, Amena and Taleb assembled at the house of Satter and rescued the victim. After that, the victims were taken to Durgapur Hospital where from the father of the informant was referred to Rajshahi Medical College Hospital for treatment. The informant stated that he was busy with the treatment of the victims for which it was delayed in lodging the FIR.

The  police  took  up  investigation  of  the  case.  During  the investigation,  the  Investigating  Officer  visited  the  place  of occurrence,  prepared  the  sketch  map  and  index,  recorded  the statement of witnesses under Section 161 of the Code of Criminal Procedure,  1898,  seized  alamat  and  after  completing  the investigation  found  the  prima  facie  truth  of  the  allegation  made


against the accused-persons and submitted charge sheet against the accused-persons including the convict-petitioner.

During the trial, the charge was framed against the accused Aichand  and  Lokman  under  Sections  143/447/379  of  the  Penal Code, 1860 and against accused Kajem, Azim, Taser, and Most. Sonera and Hasen under Sections 143/447/23 of the Penal Code, 1860,  against  accused  Kajem  under  Sections  143/447/324  and accused Asan under Sections 143/ 447/326 of the Penal Code, 1860 which was read over to the accused-persons present in Court and they  pleaded  not  guilty  to  the  charge  and  claimed  to  be  tried following law. The prosecution examined 11(eleven) witnesses to prove the charge against the accused persons. After examination of the prosecution witnesses, the accused persons were examined under Section  342  of  the  Code  of  Criminal  Procedure,  1898  and  they declined to adduce any D.W.

After concluding the trial, the Additional District Magistrate, Rajshahi by judgment  and  order  dated  14.09.2004  convicted  the accused  Ahsan  under  Section  324  of  the  Penal  Code,  1860  and accused Kajem under Section 323 of the Penal Code, 1860 and sentenced  the  accused  Ahsan  thereunder  to  suffer  rigorous imprisonment  for  1(one)  year  and  accused  Kajem  thereunder  to suffer imprisonment for 3(three) months against which the convict Md Asan and Md. Kajem filed Criminal Appeal No. 148 of 2004 before the Sessions Judge, Rajshahi. The appellate Court below by impugned  judgment  and  order  dated  01.03.2009  affirmed  the judgment  and  order passed by  the  trial  Court  against  which  the convict-petitioner Md Asan alias Ahsan obtained the instant Rule.

Learned Advocate Mr. Najmul Karim appearing on behalf of the convict-petitioner submits that P.W. 4 is the victim and P.W. 7 is also the direct witness of the alleged occurrence but the evidence of P.W. 4 is contradicted by P.W. 7 and the prosecution failed to prove


the  charge  against  the  accused  beyond  all  reasonable  doubt. Therefore, he prayed to make the Rule absolute.

Learned  Assistant  Attorney  General  Mr.  A.  Monnan appearing on behalf of the State submits that P.W. 1 is the direct witness of the first occurrence that took place in the house of the informant  and  immediately  after  the  first  occurrence,  another occurrence took place at the house of one Satter and the victim P.W. 4 was injured. P.W. 7 is the direct witness of the occurrence and corroborated the evidence of P.W. 4. After the occurrence P.W. 2, 3, 5 and 6 assembled at the house of Satter and found the victim P.W. 4  in  injured  condition.  The  evidence  of  victim  P.W.  4  is  also corroborated by the medical certificate (exhibit) issued by P.W. 9 and the prosecution proved the charge against the convict-petitioner beyond  all  reasonable  doubt  and  the  trial  Court  on  proper assessment of the evidence of the prosecution witnesses convicted the accused which has been affirmed by the appellate Court below. There is no valid ground to interfere with the impugned judgment and order passed by the Courts below. Therefore, he prayed for discharging the Rule.

I have considered the submission of the learned Advocate Mr. Najmul Karim who appeared on behalf of the convict-petitioner and the learned Assistant Attorney General Mr. A. Monnan who appeared on behalf of the State, perused the evidence, impugned judgments and orders passed by the Courts below and the records.

On perusal of the evidence, it appears that P.Ws. 4 Meser Ali Mondal  and  P.W.  2  Habibur  Rahman  are  the  victims.  P.W.  1 Mostafizur  Rahman  is  the  informant  and  P.W.  2  Md.  Habibur Rahman is the brother of the informant and he is the victim of the first  occurrence  that  took place  at  his  house.  P.W.  4  Meser  Ali Mondal is the victim of the occurrence that took place at the house of Satter and the father of the informant P.W. 1. P.W. 7 Azimuddin is the direct witness of the occurrence that took place at the house of Satter. Hearing hue and cry he went to the place of occurrence that took place at the house of A. Satter and witnessed the occurrence. Hearing hue and cry P.Ws. 3, 5, 6 and 8 assembled at the place of occurrence that took place at the house of A. Satter and found the victim Meser Ali in injured condition. P.W. 9 Dr. Md. Isahaq Ali issued the medical certificate of the victim A. Satter (exhibit 3) who discharged  his  duty  on  18.02.2000  at  Rajshahi  Medical  College Hospital.  P.W.  10  is  the  Investigating  Officer.  P.W.  11  is  the Medical Officer of Durgapur Hospital. He examined the victim P.W. 2 Habibur Rahman and issued the medical certificate (exhibit 6).

P.W. 4 Meser Ali Mondal stated that on 16.02.2000 at 4.00 pm, he was returning from school by bicycle and when he reached in front of the house of accused Asfar Ali, accused persons forcibly detained him. At that time, the accused Aichand forcibly snatched away his bicycle and Tk. 752 from his pocket and started beating. At that time to save himself, he took shelter in the house of Satter and locked the door. The accused persons by breaking the door brought him out from the said bhiti hut and again beaten him. The accused Ahsan dealt hasua blows to the back of his head and on the middle part of both eyes. The accused Aichand dealt hasua blows on the fingers of his left hand and other accused persons also beaten him. P.W. 7 stated that the accused Ahsan beaten Meser Master with a stick made of wood and he tried to save the Meser Master. At that time, the accused Kasim dealt stick blows made of bamboo on his head, consequently bleeding started.

P.Ws. 1 and 2 are the direct witnesses of the occurrence that took place at the house of P.Ws. 1. P.W.s 1, 2, 3, 5 and 6 stated that immediately  after  the  occurrence  they  rushed  to  the  place  of occurrence that took place at the house of A. Satter and found the victim  P.W.  4  in  injured  condition.  The  evidence  of  P.W.  4  as regards  injury  caused  by  accused  Ahsan  on  the  forehead  is corroborated  by  P.W.  9  Dr  Md.  Isahaq  Ali,  Medical  Officer  of


Rajshahi  Medical  College  Hospital  who  issued  the  medical certificate (exhibit 3).

It  is  true  that  the  evidence  of  P.W.  4  as  regards  the instrument used for committing the offence is contradicted by P.W. 7.  Fact  remained  that  the  evidence  of  P.W.  7  regarding  the instrument used for committing the offence is not corroborated by the medical certificate (exhibit 3) issued by the P.W. 9 Dr Md. Ishaq Ali. P.W. 4 is a school teacher and is the victim of the occurrence. The evidence of P.W. 4 regarding the injury caused by hasua is corroborated by the medical certificate (exhibit 3) issued by P.W. 9. Therefore, I am of the view that evidence of P.W. 4 as regards the injury  caused by  the  accused  Ahsan by  hasua  is  required  to be accepted by this Court. The evidence of P.W. 4 is also corroborated by P.Ws. 1, 2, 3, 5 and 6.

The criminal cases are indeed pending between the accused and the informant parties. The pendency of criminal cases against a witness  itself  is  not  a  ground  to  discard  the  evidence  of  direct witness who’se evidence is corroborated by the medical certificate (exhibit 3).

Because of the above evidence, facts and circumstances of the case, findings, observation and proposition, I am of the view that the prosecution proved the charge against the accused beyond all reasonable doubt. Both the Courts below on proper assessment of the  evidence  of  the  prosecution  witnesses  and  the  defence  case legally  passed  the  impugned  judgment  and  order  convicting  the petitioner.

 I find no merit in the Rule.

In the result, the Rule is discharged.

However, there will be no order as to costs.

The convict-petitioner Md. Asan alias Ashasan is directed to surrender forthwith.

The trial Court is directed to do the needful. 


Send down the lower Court’s records at once.