Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 3544 of 2014

      Humayun Kabir and another.      

   .....Convict-appellants. -Versus-

                         The State.                         .....Respondent.

                         Mr. Md. Motiur Rahman, Advocate

                                         .....For the convict-appellant No.1.

Ms. Shahida Khatoon, D.A.G with Ms. Sabina Perven, A.A.G with Ms. Kohenoor Akter, A.A.G.

.... For the respondent.

Heard on 08.07.2014 and Judgment on 09.07.2024.

Sheikh Abdul Awal, J:

This  criminal  appeal  at  the  instance  of  convict appellant Nos. 1. Humayun Kabir and 2. Jahangir Kha is directed  against  the  impugned  judgment  and  order  of conviction  and  sentence  dated  15.04.2014  passed  by  the learned Additional Sessions Judge, 1st Court, Bagerhat in Sessions Case No. 231 of 2005 arising out of G.R. No. 145 of 2003 corresponding to Shoronkhola Police Station Case No. 2 dated 08.12.2003 convicting the accused-appellants and  7  others  under  Section  395  of  the  Penal  Code  and sentencing them thereunder to suffer rigorous imprisonment for  a  period  of  05(five)  years  and  to  pay  a  fine  of  Tk.

5,000/= (five thousand) each in default to suffer rigorous imprisonment for 06(six) months more each.

The prosecution case, in brief, is that one Md. Moksud Akon as informant on 08.12.2003 at 18.30 hours  lodged an Ejahar with Shoronkhola Police Station against the accused appellants and 10 others under sections 395/397/412 of the Penal Code stating, inter-alia, that  the informant along with others caught fishes which valued at Tk. 20,000/- (twenty thousand) in the Bay of Bengal from 01.12.2003 to 04.12.2003 and ultimately, the informant party on 04.12.2003 at night about 11.00 hours cast an Anchor for catching  fish  in  the  river  namely,   Kochikhali  under Shoronkhola  Police  Station  and thereafter,  on 05.12.2003  about  1.00  am  a  troller  reached  to  their fishing Troller and thereafter the accused persons after being armed with Ramda, Chapati, Bogi Dao dealt so many blows on the informant party and forcibly looted away fishes from their Troller, the dacoits also looted 1 (one) Tape recorder, 1(one)  12(twelve) Volt Battery, 7(seven) Container Diesel and Charger light and they broken the pipe and the engine of the Troller and on the following morning at about 7 am another Troller named “Sufian” came to the place of occurrence and helped the informant party resulting the informant party returned Borguna Bazar on 06.12.2003 at night about 11.00 hours

and thereafter,  some of the fishermen of the victim Troller with the help of local people caught hold of the accused namely, Kanu Hawlader and Mujibor Rahman, who confessed their participation of the alleged dacoity and also on interrogation confessed that the looted fishes and other articles from the informant’s Troller which were kept in the western side of Borguna Bazar and as per the confession of the accused persons the informant party went to the Troller of the accused persons and with the  help  of  people  caught  hold  of accused  namely Humayun Kabir,  Panna,  Rustom Kha,  Md. Halim, Konu Hawlader and Mujibor Rahman and some of the accused  managed  to  scape.  Thereafter,  the  informant party seized the looted articles and lodged the case.

Upon  the  aforesaid  First  Information  Report, Shoronkhola Police Station Case No. 2 dated 08.12.2003 under Sections 395/397/412 of the Penal Code was started against the accused appellants and 10 others.

Police  after  completion  of  investigation  submitted charge sheet  against the accused appellants and 10 others, vide charge sheet No. 24 dated 26.03.2004 under sections 395/397/412 of the Penal Code.

Ultimately, the accused appellants and 10 others were  put on trial before the learned Additional Sessions Judge, 1st

Court,  Bagerhat  to  answer  a  charge  under  Sections

395/397/412  of  the  Penal  Code  to  which  the  accused- appellants and others pleaded not guilty and claimed to be tried stating that they have been falsely implicated in the case.

At the trial, the prosecution examined in all 8(eight) witnesses to prove its case and exhibited some documents, while the defence examined none.

On conclusion of trial, the learned Additional Sessions Judge, 1st Court, Bagerhat by the impugned judgment and

order dated 15.04.2014 found the accused appellants and 7 others  guilty  under  Sections  395  of  the  Penal  Code  and sentenced them thereunder to suffer rigorous imprisonment for  a  period  of  05(five)  years  and  to  pay  a  fine  of  Tk. 5,000/=  (five  thousand)  in  default  to  suffer  rigorous imprisonment for 06(six) months more each.

Being aggrieved by the aforesaid impugned judgment and order of conviction and sentence dated 15.04.2014, the accused-appellants preferred this criminal appeal.

Mr.  Md.  Motiur  Rahman,  the  learned  Advocate appearing for the convict-appellants submits that the accused appellants are out and out innocent, they have been made scapegoat in this case mere on suspicion. He adds that in this case prosecution examined in all 8 witnesses out of whom none of them testified against the appellants connecting with the crime or they took part in dacoity and forcibly looted away fishes or goods. Finally, the learned Advocate submits that in this case prosecution having failed to examine some vital witnesses including the informant of the case although in the facts and circumstances of the case the informant was vital  witness  of  the  case  and  non-examination  of  the informant of the case creates a serious doubt as to credibility of  the  prosecution  case  as  per  provisions  of  case  under section 114(g) of the Evidence Act to the effect that had they been examined in this case they would not have supported the prosecution case and the benefit of this

defect should go to the accused appellants although the trial Judge without considering all these vital aspects of the case from a correct angle mechanically found the accused appellants guilty along with the other accused under section 395 of the Penal Code and as such, the impugned judgment and order of conviction and sentence dated 15.04.2014 is liable to be set-aside.

Ms. Shahida Khatoon, the learned Deputy  Attorney General, on the other hand, supports the impugned judgment and  order,  which  was  according  to  her  just,  correct  and proper.

Having heard the learned Advocate and the learned Deputy  Attorney  General  and  having gone  through  the materials on record  including the impugned judgment and order  of  conviction  and sentence,  now  only the  question calls  for  consideration  in  this  appeal  is  whether  the trial Court  committed  any  error  in  finding the  accused- appellants guilty of the offence under Section 395  of  the Penal Code.

          On  scrutiny  of  the  record,  it  appears  that  the prosecution to prove the allegation of dacoity against the accused appellants and 10 others examined in all 8 witnesses out of whom PW-1, S.I. Md. Ismail stated in his deposition that  he  recorded  the  case  on  getting  the  FIR  from  the informant of the case on 08.12.2003. This witness proved the FIR as exhibit-2 and his signature thereon as exhibit 2/1. PW-2, Md. Shorab Hossain stated in his deposition that- “

”  This  witness  in  his  cross-examination  stated  that

“ ” PW-3, Md. Jahangir, stated in his deposition  that  at  night  1.00  AM  dacoity  took  place  on Bangopo Sagar and dacoits took away fishes , ice, 1(one) Tap recorder, 7 container diesel, Mobil etc. PW-4, Abdul Jalil, gave evidence in support of the prosecution case. PW- 5, Md. A. Salam, stated in his deposition that police came to the occurrence and took his signature, he knows nothing. PW-6, Md. Khokon, was tendered. PW-7. S.I. Md. Abul Kalam, who investigated the case. This witness stated in his deposition that during investigation he visited the place of occurrence,  prepared  sketch-map,  and  examined  the witnesses  under  section  161  of  the  Code  of  Criminal Procedure. This witness deposed that after completion of investigation submitted charge sheet against the 12 accused persons  under  Sections  395/397/412  of  the  Penal  Code. P.W-8, S.I. Md. Barkat Hossen, who prepared the seizure list. This witness proved the seizure list as exhibit-5 series.

On a close analysis of the above quoted evidence together with the FIR, charge sheet and other materials on record, it appears that save and except the PW-2 no other  witnesses  testified  a  single  word  against  the accused appellants connecting with the crime. Besides, in  this  case  no  incriminating  articles  were  recovered from the accused appellants. It is thus difficult to believe that the appellants were actually involved with the crime under Sections 395 of the Penal Code. Besides, I have already indicated that in this case a number of charge sheeted  witnesses,  specially  some  of  the  important witnesses including the informant of the case have not been  examined  by  the  prosecution  which  calls  for  a presumption under section 114(g) of the Evidence Act to the effect that had they been examined in this case they would not have supported the prosecution case and the benefit of this defect will go to the accused appellants.

In the facts and circumstances of the case and the evidence on record, it must be held that the prosecution failed to prove charge of dacoity under Section 395 of the Penal Code against the accused appellants beyond reasonable doubts. Consequently the appeal succeeds.

In the result, the appeal is allowed and the impugned judgment  and  order  of  conviction  and  sentence  dated 15.04.2014 passed by the learned Additional Sessions Judge, 1st Court, Bagerhat in Sessions Case No. 231 of 2005 arising out of G.R. No. 145 of 2003 corresponding to Shoronkhola Police  Station  Case  No.  2  dated  08.12.2003  so  far  as  it relates to the accused-appellants is set-aside and they are acquitted of the charge levelled against them.

       Accused appellant, Humayun Kabir and Jahangir Kha are discharged from their bail bonds.

Send down the lower Court records at once.