(From previous issue) :
6. The Sessions Judge submitted the proceedings of the case to the High Court Division under Section 374 of the Code of Criminal Procedure which was registered as Death Reference No. 29 of 2002. The appellant filed Jail Appeal No. 425 of 2002 along with other convicts: Nazrul, Talebul and Monir Mia and Criminal Appeal No. 2471 of 2002 along with the other convicts: Talebul and Nazrul: Co-convict, Monir filed Criminal Appeal No. 2472 of 2002 and convicts: Shafiqur Rahman @ Shafique and Abdul Mannan filed Criminal Appeal No. 2542 of 2002. A Division Bench of the High Court Division after hearing the death reference along with the appeals by the impugned judgment and order accepted the death reference so far as it relates to the appellant and dismissed Jail Appeal No. 425 of 2002 and Criminal Appeal No. 4721 of 2002 in respect of him. The High Court Division rejected the death reference so far as it relates to convict Muzibur @ Mazibul and altered the sentence of death to one for imprisonment for life and also imposed a fine of Taka 1,000 in default to suffer rigorous imprisonment for 6(six) months more. The High Court Division rejected the death reference in respect of convict appellants, Nazrul and Talebul and allowed the jail appeal filed by Talebul and Monir and set aside the judgment and order of conviction and sentence passed by the learned Sessions Judge in respect of the said two convicts and they were acquitted of the charges brought against them. The High Court Division allowed Criminal Appeal No. 2471 of 2002 in part and acquitted convicts: Nazrul and Talebul of the charges brought against them. The High Court Division allowed Criminal Appeal Nos. 2472 of 2002 and 2542 of 2002 and acquitted appellants Monir, Shafiqur Rahman @ Shafique and Abdul Hannan of the respective charges brought against them.
7. Being aggrieved by and dissatisfied with the impugned judgment and order, the appellant filed Jail Petition No. 21 of 2004 from Sylhet central jail, Sylhet and this Division gave leave on 25-5-2006 to consider the question of sentence only on the submissions made by the learned Advocate for the appellant as under:
“The learned Advocate submits that the appeal of Nazrul and Talcbul standing on the same footing was allowed and they were found not guilty and acquitted. The death sentence of Majibul in Death Reference No. 29 of 2002 was altered to one of imprisonment for life. Jail Appeal No. 425 of 2002 preferred by Monir Miah and others was allowed in part and Monir was found not guilty md accordingly acquitted. But the present petitioner stands in the same footing but his case was not properly considered by the High Court Division. In such view of the matter and the materials on record, the High Court Division committed an error of law in affirming sentence of death imposed upon the petitioner. As a result there has been miscarriage of justice.
8. The submissions merit consideration.
Leave is according granted only an the question of sentence.”
9. Mr Sarwar Ahmed learned Advocate, appearing for the appellant made similar submissions as noted in the leave granting order.
10. Mr Karunamoy Chakma, learned Deputy Attorney-General, however, supported the impugned judgment and order.
11. As leave has been granted only on the question of sentence, we are not called upon to sift the entire evidence adduced by the prosecution. We shall, however, refer to some portions of the evidence in order to decide whether the High Court Division was justified in affirming the sentence of death passed against the appellant by the learned Sessions Judge while it rejected the death reference in respect of Mazibur @ Mazibul and altering the sentence into one for imprisonment for life and rejected the reference in respect of Talebul and Nazrul and acquitted them of the charges brought against them.
12. In the instant case, the FIR was lodged by PW 1 claiming himself to be an eye witness. Although on the FIR, the name of the appellant and four others: Talebul, Mazibul, Monir Mia and Nazrul were mentioned, no specific overt act such as, shooting from the gun at the chest and the belly of deceased Rakib by the appellant was alleged. In the FIR, the allegations were made against all the accused in a lump that all the accused first attacked the informant’s (PW 1) brother, Shafique with sharp cutting weapons causing injuries on his shoulder and thigh by entering into his room by opening the latch of the door. In the FIR, it was further alleged that all the accused entered into the room of Shafique through burgle (wmua) at the north-west corner of the room of the informant and that the accused shot fire from the gun at Rakib indiscriminately (G‡jvcv_vix ¸wj) and also at the wife of the informant when she tried to save Rakib. In the FIR, even it was not stated which of the accused had the gun in his hand. But the informant while deposing in Court as PW 1 gave different version of the occurrence as apparent from the prosecution case stated hereinbefore as he stated in his examination-in-chief that it is the appellant who fired shots from a gun at the chest of deceased Abdur Rakib and then at his belly. Of course, this version of PW 1 was sought to be corroborated by other PWs, namely: PWs 2, 3, 4 who are his sons and PW 5 who is the wife of deceased, Abdur Rakib. These witnesses claimed that they were present at the house at the time of the occurrence and saw the occurrence in the light of electricity. Had they seen the appellant to shoot at the deceased as deposed by them in Court, they would have definitely stated so to PW 1 and in that case PW 1 would have stated the same in the FIR. From the deposition of PW 1 it is also apparent that besides the appellant other accused had also guns and one of them by shooting from his gun broke the ventilator of the Baithakkhana.
13. From the post-mortem report it appears that the deceased sustained the following injuries:
“(1) Multiple (30) punctured wound at right 4-7th intercostal space with area involving 3″ x 2” x upto chest wall depth.
(2) Oval penetrating wound at left 7-10th inter-costal space on mid axillary line 2.50 in diameter upto chest cavity depth.
(3) Penetrating wound at left sub-clavicular region 2.50″ X 2″ x chest cavity depth.
(4) Incised wound (deep) at left knee 3″ x 1.50″ x3″.
(5) Multiple (12 punctured would middle of rt. arm 1/3 diameter up to skin muscle depth.
(6) Multiple penetrating wound (2) at scalp ¼, indiameter upto scalp depth and ten punctured would below knee ¼ indiameter upto variable depth in skin and muscle.”
14. The Doctor opined that death was caused “due to shock and haemorrhage as a result of injury to the left lung, splint stomach which were ante mortem and homicidal in nature caused by shot gun fire injury.” The post mortem report shows that besides the “shot gun” fire injuries the deceased sustained other injuries.
15. FIR is the earlier version of the prosecution case and the statements made therein can be looked into with a view to find the prosecution story as a whole as set out in the earlier stage though it cannot be used in any way as substantive piece of evidence. And veracity of the testimony of its maker can very well be adjudged by looking at the material contradictions in his testimony from the FIR. Here, in the instant case as pointed out hereinbefore, the informant, an eye witness to the occurrence, though claimed to have seen the occurrence and recognized the accused including the appellant in the light of the electricity did ‘not attribute any overt act of shooting accused wise, but while he deposed he did so and this creates a prima-facie doubt as to the fact whether the appellant fired twice at the deceased Rakib as alleged by PW 1 and as sought to be corroborated by the other witnesses. It is also pertinent to state that the High Court Division disbelieved the testimony of PWs 1, 2, 3,4 and 5 that Talebul shot at the mouth of deceased Neharunnesa, wife of PW 1 and accordingly, acquitted him of the charges brought against him with the finding that “So, the ocular evidence coming from the mouths of PWs 1,2,3,4 and 5 in respect of gun shot by Talebul stood totally nullified by the evidence of Doctor PW12.”
16. Considering the above state of evidence, it appears to us that the appellant could not be solely saddled with the “shot gun fire injury on the deceased, Abdur Rakib” resulting his death, particularly when the other accused also had guns and they fired from their guns as well. In view of the above, it does not appear to us that the High Court Division took the right decision in affirming the sentence of death awarded against the appellant by the learned Sessions Judge. It further appears that the appellant is in death cell since 12-8-2002 and by now he has suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the context, we are of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine.
17. Accordingly, this appeal is allowed. The sentence of death awarded against the appellant by the learned Sessions Judge as affirmed by the High Court Division is altered into one for imprisonment for life and he is also to pay a fine of Taka 10,000 in default to suffer rigorous imprisonment for 6(six) months more.
The concerned Jail Authority is directed to shift the appellant to the convict wards from the death cell.
(Concluded)
6. The Sessions Judge submitted the proceedings of the case to the High Court Division under Section 374 of the Code of Criminal Procedure which was registered as Death Reference No. 29 of 2002. The appellant filed Jail Appeal No. 425 of 2002 along with other convicts: Nazrul, Talebul and Monir Mia and Criminal Appeal No. 2471 of 2002 along with the other convicts: Talebul and Nazrul: Co-convict, Monir filed Criminal Appeal No. 2472 of 2002 and convicts: Shafiqur Rahman @ Shafique and Abdul Mannan filed Criminal Appeal No. 2542 of 2002. A Division Bench of the High Court Division after hearing the death reference along with the appeals by the impugned judgment and order accepted the death reference so far as it relates to the appellant and dismissed Jail Appeal No. 425 of 2002 and Criminal Appeal No. 4721 of 2002 in respect of him. The High Court Division rejected the death reference so far as it relates to convict Muzibur @ Mazibul and altered the sentence of death to one for imprisonment for life and also imposed a fine of Taka 1,000 in default to suffer rigorous imprisonment for 6(six) months more. The High Court Division rejected the death reference in respect of convict appellants, Nazrul and Talebul and allowed the jail appeal filed by Talebul and Monir and set aside the judgment and order of conviction and sentence passed by the learned Sessions Judge in respect of the said two convicts and they were acquitted of the charges brought against them. The High Court Division allowed Criminal Appeal No. 2471 of 2002 in part and acquitted convicts: Nazrul and Talebul of the charges brought against them. The High Court Division allowed Criminal Appeal Nos. 2472 of 2002 and 2542 of 2002 and acquitted appellants Monir, Shafiqur Rahman @ Shafique and Abdul Hannan of the respective charges brought against them.
7. Being aggrieved by and dissatisfied with the impugned judgment and order, the appellant filed Jail Petition No. 21 of 2004 from Sylhet central jail, Sylhet and this Division gave leave on 25-5-2006 to consider the question of sentence only on the submissions made by the learned Advocate for the appellant as under:
“The learned Advocate submits that the appeal of Nazrul and Talcbul standing on the same footing was allowed and they were found not guilty and acquitted. The death sentence of Majibul in Death Reference No. 29 of 2002 was altered to one of imprisonment for life. Jail Appeal No. 425 of 2002 preferred by Monir Miah and others was allowed in part and Monir was found not guilty md accordingly acquitted. But the present petitioner stands in the same footing but his case was not properly considered by the High Court Division. In such view of the matter and the materials on record, the High Court Division committed an error of law in affirming sentence of death imposed upon the petitioner. As a result there has been miscarriage of justice.
8. The submissions merit consideration.
Leave is according granted only an the question of sentence.”
9. Mr Sarwar Ahmed learned Advocate, appearing for the appellant made similar submissions as noted in the leave granting order.
10. Mr Karunamoy Chakma, learned Deputy Attorney-General, however, supported the impugned judgment and order.
11. As leave has been granted only on the question of sentence, we are not called upon to sift the entire evidence adduced by the prosecution. We shall, however, refer to some portions of the evidence in order to decide whether the High Court Division was justified in affirming the sentence of death passed against the appellant by the learned Sessions Judge while it rejected the death reference in respect of Mazibur @ Mazibul and altering the sentence into one for imprisonment for life and rejected the reference in respect of Talebul and Nazrul and acquitted them of the charges brought against them.
12. In the instant case, the FIR was lodged by PW 1 claiming himself to be an eye witness. Although on the FIR, the name of the appellant and four others: Talebul, Mazibul, Monir Mia and Nazrul were mentioned, no specific overt act such as, shooting from the gun at the chest and the belly of deceased Rakib by the appellant was alleged. In the FIR, the allegations were made against all the accused in a lump that all the accused first attacked the informant’s (PW 1) brother, Shafique with sharp cutting weapons causing injuries on his shoulder and thigh by entering into his room by opening the latch of the door. In the FIR, it was further alleged that all the accused entered into the room of Shafique through burgle (wmua) at the north-west corner of the room of the informant and that the accused shot fire from the gun at Rakib indiscriminately (G‡jvcv_vix ¸wj) and also at the wife of the informant when she tried to save Rakib. In the FIR, even it was not stated which of the accused had the gun in his hand. But the informant while deposing in Court as PW 1 gave different version of the occurrence as apparent from the prosecution case stated hereinbefore as he stated in his examination-in-chief that it is the appellant who fired shots from a gun at the chest of deceased Abdur Rakib and then at his belly. Of course, this version of PW 1 was sought to be corroborated by other PWs, namely: PWs 2, 3, 4 who are his sons and PW 5 who is the wife of deceased, Abdur Rakib. These witnesses claimed that they were present at the house at the time of the occurrence and saw the occurrence in the light of electricity. Had they seen the appellant to shoot at the deceased as deposed by them in Court, they would have definitely stated so to PW 1 and in that case PW 1 would have stated the same in the FIR. From the deposition of PW 1 it is also apparent that besides the appellant other accused had also guns and one of them by shooting from his gun broke the ventilator of the Baithakkhana.
13. From the post-mortem report it appears that the deceased sustained the following injuries:
“(1) Multiple (30) punctured wound at right 4-7th intercostal space with area involving 3″ x 2” x upto chest wall depth.
(2) Oval penetrating wound at left 7-10th inter-costal space on mid axillary line 2.50 in diameter upto chest cavity depth.
(3) Penetrating wound at left sub-clavicular region 2.50″ X 2″ x chest cavity depth.
(4) Incised wound (deep) at left knee 3″ x 1.50″ x3″.
(5) Multiple (12 punctured would middle of rt. arm 1/3 diameter up to skin muscle depth.
(6) Multiple penetrating wound (2) at scalp ¼, indiameter upto scalp depth and ten punctured would below knee ¼ indiameter upto variable depth in skin and muscle.”
14. The Doctor opined that death was caused “due to shock and haemorrhage as a result of injury to the left lung, splint stomach which were ante mortem and homicidal in nature caused by shot gun fire injury.” The post mortem report shows that besides the “shot gun” fire injuries the deceased sustained other injuries.
15. FIR is the earlier version of the prosecution case and the statements made therein can be looked into with a view to find the prosecution story as a whole as set out in the earlier stage though it cannot be used in any way as substantive piece of evidence. And veracity of the testimony of its maker can very well be adjudged by looking at the material contradictions in his testimony from the FIR. Here, in the instant case as pointed out hereinbefore, the informant, an eye witness to the occurrence, though claimed to have seen the occurrence and recognized the accused including the appellant in the light of the electricity did ‘not attribute any overt act of shooting accused wise, but while he deposed he did so and this creates a prima-facie doubt as to the fact whether the appellant fired twice at the deceased Rakib as alleged by PW 1 and as sought to be corroborated by the other witnesses. It is also pertinent to state that the High Court Division disbelieved the testimony of PWs 1, 2, 3,4 and 5 that Talebul shot at the mouth of deceased Neharunnesa, wife of PW 1 and accordingly, acquitted him of the charges brought against him with the finding that “So, the ocular evidence coming from the mouths of PWs 1,2,3,4 and 5 in respect of gun shot by Talebul stood totally nullified by the evidence of Doctor PW12.”
16. Considering the above state of evidence, it appears to us that the appellant could not be solely saddled with the “shot gun fire injury on the deceased, Abdur Rakib” resulting his death, particularly when the other accused also had guns and they fired from their guns as well. In view of the above, it does not appear to us that the High Court Division took the right decision in affirming the sentence of death awarded against the appellant by the learned Sessions Judge. It further appears that the appellant is in death cell since 12-8-2002 and by now he has suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the context, we are of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine.
17. Accordingly, this appeal is allowed. The sentence of death awarded against the appellant by the learned Sessions Judge as affirmed by the High Court Division is altered into one for imprisonment for life and he is also to pay a fine of Taka 10,000 in default to suffer rigorous imprisonment for 6(six) months more.
The concerned Jail Authority is directed to shift the appellant to the convict wards from the death cell.
(Concluded)
