Appellate Division :
(Criminal)
Surendra Kumar Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Hasan Foez Siddique J
Judgment
April 29th, 2015.
State……………Appellant
vs
Abdus Salam and
others ………….
………………Respondents*
Constitution of Bangladesh, 1972
Article 103
Code of Criminal Procedure (V of 1898)
Section 410
Ordinarily this Division does not interfere with the acquittal recorded by the High Court Division in favour of the accuseds but it cannot shirk its responsibility when it comes across an acquittal recorded in the most perfunctory manner leading to great injustice. Jurisdiction of this Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. …… (22)
Momtazuddin Fakir. Additional Attorney-General instructed by Sufia Khatun Advocate-on-Record-For the Appellant.
Khondaker Mahbub Hossain Senior Advocate instructed by M Ashrafuzzaman Khan, Advocate- onRecord-For Respondent.
Judgment
Hasan Foez Siddique J : This appeal is directed against the judgment and order dated 31-8-2005 passed by the High Court Division in Criminal Appeal No. 2528 of 1997 setting aside the judgment and order dated 15-10-1997 passed by the Additional Sessions Judge, First Court, Sylhet, in Sessions Case No. 43 of 1993.
2. The short facts, for the disposal of this appeal, are that there was a long standing internal feud between the accused and PW7 Masuk Uddin and to the effect that the accused attempted to murder him (PW7) but he (PW7) narrowly escaped death, over the self-same occurrence a criminal case bearing GR Case No. 111 of 1991 was pending in the court of Additional District Magistrate, Sylhet. The accused tried to settle the matter in dispute but the informant party declined it. The accused became enraged. On 4-2-1992 at 12-30 hours PW 1, Md Tafazzal Ali, his brother deceased Kotai Miah, nephew deceased Dulu Miah, sister’s son (deceased) Shawkat Ali, grand son deceased Nanu Miah, PW 2, Jam Uddin, PW 3, Shahabuddin, PW 4, Abdur Rouf, PW 7, Masuk Uddin, Faruque Uddin and Kalamandar Ali were coming back towards their respective houses after casting votes at the Mirgonj High School Polling Station for the election of No.8, Vadesshwar Union Parishad within Police Station Golapgonj, while they reached in between Fateh Chand Shop and Faisal Trailers at Mirgonj Bazar then the accused being armed with deadly weapons like kiris, dagger, roll etc. attacked them. Sensing danger PW 1, Md Tafazzal Ali, PW 3, Sahabuddin, PW 7, Masque Ahmed and Kalamandar Kha took shelter in an open hut ghar at Mirgonj Bazarcubits away from the place of occurrence. They raised alarm. Then accused Abdus Salam ordered to eliminate them. Then accused Majiruddin inflicted kiris blow at the neck of deceased Kotai Miah, accused Jalil inflicted dagger blow at the back of the head of deceased Kotai Miah, accused Waris Ali, Tajammul, Masum assaulted deceased AD-48 Kotai Miah by roll who fell down and died at the spot. Accused Kayes Uddin inflicted dagger blow at the chest of deceased Dulu Miah, accused Noman assaulted deceased Dulu by roll who, also died at the spot, accused Tajuddin inflicted kiris blow at the back of Shawakat Ali, accused Abdus Salam inflicted kiris blow at the abdomen of deceased Nanu Miah, accused Nowsad dealt dagger blow at the back of the head of deceased Nanu Niah, accused Muslem Uddin inflicted kiris blow on the hand of Faruque Uddin and accused Jamal Uddin assaulted him by roll causing bleeding injuries, accused Faruque inflicted dagger blow at the neck below Ear of PW 2, Jam Uddin, accused Atab Ali assaulted PW 4, Abdur Rouf by roll causing fracture at his hand. On hearing alarm locals reached at the scene and accused departed from the Mirgonj Bazar. The wounded were sent to Fenchugonj Hospital, then to the Sylhet Hospital and on the way injured Shawkat Ali and Nanu Miah, succumbed to the injuries and their death were also confirmed by the attending doctor at the hospital.
3. On the same day i.e. on 4-2-1992 at 2.00 PM Faruque Ahmed Chairman of the local Union Parishad reported the incident to the Golapgonj Police Station over telephone. On such information GDE No.107 dated 4-2-1992 was recorded at 2-00 pm. On the basis of such information PW 11 Sl Md. Aftab Uddin of Golapgonj Police Station reached to the scene, held inquest upon the cadavers, visited the place of occurrence, prepared sketch map with separate index, seized alamats etc. The prosecution was launched by lodging the First Information Report by PW1, Md Tafazzal Ali brother of the deceased Kotai Miah as informant on 4-2-1992 at 22-30 hours ‘with the Golapgonj Police Station and the same was recorded as Golapgonj Police Station Case ,No.2 dated 4-2-1992;
4. The police after investigation submitted charge-sheet against 34 persons including the respondents.
5. The accused were put on trial in the Court of learned Additional Sessions Judge, First Court, Sylhet who framed a charge under sections 302/149/148 of the Penal Code against all the accused persons, additional charge under sections 302/34 was framed against accused Kayesuddin, Nomanuddin alias Noman, Abdus Salam, Nowsad Ali, Joynal Abedin alias Jamiruddin, Shamimuddin alias Shamim, Emaduddin, Masumuddin, Abdul Jalil, Majeruddin, Wares Ali, Tajammul Ali, additional charge under section 302 of the Penal Code was framed against accused Tajuddin, additional charge under section 324 of the Penal Code was framed against accused Musleuddin and Faruque Uddin and additional charge under section 325 of the Penal Code was framed against accused Atab Ali to which all the accused persons pleaded not guilty.
6. The defence case appears to be that they were innocent and falsely implicated. There was the election for the office of chairman and members of Vadeshhar Union Parishad scheduled to be held on 4-2-1992 and on that day there was a free fight at Mirgonj Bazar between the supporters of two contesting chairman candidates and in the free fight the deceased might have been killed and the accused had nothing to do with the alleged offence and they were falsely implicated in this case.
7. Prosecution examined 12 witnesses and defence examined none and the trial court examined the accused persons under section 342 of the Code of Criminal Procedure. The trial Court convicted the respondent Nos.1 to 4 and 6 to 10 under sections 302/34 of the Penal Code and sentenced each of them to suffer imprisonment for life and to pay fine of Taka 5,000, in default, to suffer rigorous imprisonment for one year more and convicted respondent No.5 under section 302 of the Penal Code and sentenced him to suffer imprisonment for life and to pay fine of Taka 5,000, in default, to suffer rigorous imprisonment for one year more and convicted respondent Nos. 11 to 14 under sections 302/149 of the Penal Code and sentenced each of them to suffer imprisonment for life and to pay fine of Taka 5,000 in default, to suffer rigorous imprisonment for one year more and convicted all the respondents under section 148 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for two years and convicted respondent No. II under section 325 of the Penal Code and sentenced him to suffer rigorous imprisonment for three years, convicted respondent Nos. 12 and 13 under section 324 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for two years and convicted respondent No. 14 under section 323 of the Penal Code and sentenced him to suffer rigorous imprisonment for one year.
8. On appeal, against the said judgment, the High Court Division allowed the appeal and set aside the judgment of the trial court and acquitted all the accused persons. Hence, is the appeal by the State upon getting leave.
9. Mr Momtazuddin Fakir, learned Additional Attorney General appearing on behalf of the State, submits that PWs. 1,2,3,4,5 and 7 are the eye witnesses of the occurrence and amongst them P.Ws.2 and 4 were injured eye witnesses. The eye witnesses narrated the material facts mentioning the overt-acts of the respondents which were consistently corroborated by each other. They proved the prosecution case beyond all shadow of doubt. The High Court Division misread the medical evidence and erroneously held that the medical evidence do not support the prosecution story.
10. On the other hand, Khandaker Mahbub Hossain, learned Senior Counsel appearing on behalf of the respondents, submits that the High Court Division scanning all the evidence rightly acquitted the respondents from the charges. There is no error in the judgment and order of the High Court Division which calls for any interference by this Division.
11. The prosecution case was that the victims along with some witnesses, on the date and time of occurrence, reached in between Fateh Chand Shop and Faisal Trailers at Mirgonj Bazar, the accused respondents armed with deadly weapons attacked the victims.
12. The specific allegations were that the respondent No.6 Majiruddin dealt a kiris blow on the throat below the chin of the victim Kotai Miah and respondent No.7 Abdul Jalil dealt a dagger blow on the back side of the head of victim Kotai PW1 Md Tafazzal Ali, the informant of the case in his evidence said-
“?? ???? ???? ???? ????? ??? ?????? ????? ???? ???? ?? ?????? ???? ???? ??? ????? ????? ???? ???? ?? ???? ???? ????? ????? ???? ????? ???? ???? ?? ????? ????? ???? ??? ?????”
Now let us see whether the medical evidence supports prosecution story as stated or not. It appears from post mortem report (Exhibit 4) of Kotai Miah that the Doctor, holding autopsy, found following injuries on the person of victim Kotai:
(1) One penetrating wound on the occipital region at the right side of mid line measuring 1-1/2″ x 1-1/2″ x upto cavity depth margin-inverted.
(2) One incised wound on the chin at right side measuring 1-1/2 x1/2 x born depth.
(3) One incised wound on lower limb 1-1/2″ x 1/2″ x in size.
(4) Deformity and right side direction of nose was present.
5) Lacerated injury of upper and lower gum present.
13. In view of the post-mortem report of Kotai as quoted above and the consistent evidence of PWs 2, 3, 4, 5 and 7 corroborating the PWI that Abdul Jalil dealt a dagger blow on the back side of the head and Majiruddin dealt a kiris blow on the throat below the thin of the victim Katai, we have no hesitation to hold that the High Court Division arrived at a wrong conclusion that the medical evidence does not support the prosecution case and that the prosecution case is doubtful. We do not find any contradictions or discrepancies in the testimonies of PWs 1, 2, 3 , 4, 5 and 7 those with the medical evidence.
14. The specific allegation against the respondent No.3 Kayes Uddin is that he dealt a dagger blow below the chest of victim Dulu Miah informant PW 1 in his evidence said, ”????? ????? ????? ???? ????? ????? ???? ??? ????? From the postmortem report of the person of victim Dalu Miah (Ext 5), it appears that Doctor, holding autopsy, found following injuries on his person:
“1. One spindle shaped punctured wound on the left 5 inter costals space 1-1/2 x ½ x lateral to sternum measuring 1-1/2 x ½ x upto cavity depth with regular and inverted margin.
2. One abrasion on the right knee joint measuring 1-1/2″ x l”.
15. The PWs 2, 3, 4, 5 and 7 in their deposition stated that the respondent No.3 Kayesh Uddin dealt a dagger blow below the chest of victim Dalu. That is, medical evidence so far injury No. 1 and the evidence of PWs 1, 2, 3 ,4, 5 and 7 against respondent No.3 Kayes Uddin are consistent.
16. PW 1 informant Tafazzal Ali in examination in chief, inter alia, said-
ÓAvmvgx Qvjvg wKwiR w`qv bvbyi ???? ??? ????? ????? ???? ?????? ????? ???? ???? ?????? ????? ?????? ?? ????? ????? ????? ???? ????? ????? ?????? ???? ??? ?????”
17. It appears from post-mortem report of victim Nanu Miah (Exhibit 6) that the Doctor, holding autopsy of his person, found following injuries:
“1. One incised wound on the right parietal region of the head in longitudinal direction measuring 3″ x 1/2” x upto bone depth.
2. One stab injury on the epigastriet region of abdomen measuring l”x 1/2 cavity depth.
3. Abrasions of different size and shape on the back of right shoulder.
18. Prosecution story, as we have seen from the evidence of PW 1, was that the respondent No. 2 Nowsad Ali dealt a dagger blow on the backside of the head of victim Nanu Miah and respondent No.1 Abdus Salam dealt a kiris blow in the abdomen of victim Nanu Miah and accused Jamiruddin, Emaduddin and Shamim (they got acquittal from the trial Court) abruptly assaulted the victim Nanu Miah. The High Court Division acquitted the respondent No.2 Nowsad Ali and respondent No. 1 Abdus Salam on the ground that the medical evidence does not support the prosecution case. From the evidence of PWs 1, 2, 3, 4, 5 and 7, it appears that all of them categorically deposed that Nowsad Ali dealt a dagger blow on the back side of the victim Nanu Miah and Abdus Salam dealt a kiris blow on the abdomen of victim Nanu Miah. The medical evidence quoted above and the evidence of PWs 1, 2, 3, 4, 5 and 7 conclusively proved that Nowsad Ali and Abdus Salam killed the victim Nanu Miah by giving dagger blow and kiris blow to Nanu Miah.
19. We do not find any inconsistency between the evidence of PWs 1, 2, 3, 4, 5 and 7 and the medical evidence.
20. It further appears from the post mortem report of victim Shawkat Ali (Exhibit 7) that the doctor, holding autopsy of his person, found following injuries:
One stab injury on the back of the left side of chest in posterior scapula line in 9th intercostal space in oblique direction.
21. PW I, informant, in his examination- in chief deposed, ”????? ????????? ????? ???? ???? ???? ???? ??? ????? ????? ?? ?????? ????? ????” That is, the prosecution case is that the respondent No.6 Tajuddin dealt a kiris blow on the back side of Shawkat Ali From the evidence of PWs 2, 3, 4, 5 and 7, it appears that all of them categorically stated that accused Tajuddin dealt a kiris blow on the back side of victim Shawkat Ali The post-mortem report of Shawkat Ali as quoted above clearly corroborated the prosecution case as well.
22. Ordinarily this Division does not interfere with the acquittal recorded by the High Court Division in favour of the accuseds but it cannot shirk its responsibility when it comes across an acquittal recorded in the most perfunctory manner leading to great injustice. The High Court Division ought not to have rejected the evidence of important eye witnesses and the medical evidence in such a serious case which resulted in four murders. The High Court Division has not cared to examine the details of the intrinsic merits of the evidence of the eye witnesses and has rejected their evidence on the general grounds. It is true that jurisdiction of this Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion on recorded by the court below is such which could not have been possibly arrived by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. In the instant case, the order of acquittal of Respondents No.1, 2, 3, 5, 6 and 7 is not reasonably sustainable on the evidence of record so this court is authorized to interfere with such an order of acquittal and set at naught the injustice done.
23. The findings of the High Court Division, at least, in respect the respondent No. I. Abdus Salam, 2. Nowsad Ali, 3. Kayes Uddin, 5. Tajuddin, 6. Majiruddin; and 7. Abdul Jalil are not based on the evidence on record. The High Court Division misread and misconstrued the evidence of PWs 1, 2, 3, 5, 6 and 7 and the post mortem reports of the Victims and thereby erroneously held that the medical evidence do not support the prosecution case. We are of the view that prosecution had been proved its case beyond all shadow of doubt so far as it relates to the respondent No. I, 2, 3, 5, 6 and 7. The judgment and order of acquittal so far those respondents are concerned are liable to be set side.
24. It appears from the evidence on record that the charge against the other respondents, that is, respondents No.4 Nomanuddin alias Mamun son of Waris Ali, 8. Masumuddin son of Atab Ali, 9. Waris Ali son of Nasimuddin, 10 Tajmul Ali alias Tajammul Ali son of late Masaddar Ali, 11. Atab Ali son of late Asad Ali, 12. Mosleuddin son of Atab Ali, 13. Farukuddin; and 14. Jamaluddin had not been roved beyond all reasonable doubt.
25. Accordingly, the appeal is allowed in part. The judgment and order of acquittal passed by the High Court Division in respect of respondent No.1. Abdus Salam, 2. Nawsad Ali, Sons of late Rashid Ali, 3. Kayes Uddin @ Foyezuddin Forshudin, 5. Tajuddin, 6. Majiruddin; and 7. Abdul Jalil, Sons of Matasin Ali @ Motadin Ali @ Tamiz Ali is set aside and the judgment and order of the trial Court so far those respondents are concerned is hereby restored. The appeal so far the rest of the respondents are concerned is hereby set aside. The respondent No.1 Abdus Salam, 2. Nawsad Ali, 3. Kayesuddin @ Foyezuddin Forshudin, 5. Tajuddin, 6. Majiruddin
and 7. Abdul Jalil are directed to surrender before the Chief Judicial Magistrate, Sylhet to serve out rest of their sentences awarded by the Court. In case of failure to surrender before the concerned Court, the Chief Judicial Magistrate of Sylhet shall take step to take them in custody.
(Criminal)
Surendra Kumar Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Hasan Foez Siddique J
Judgment
April 29th, 2015.
State……………Appellant
vs
Abdus Salam and
others ………….
………………Respondents*
Constitution of Bangladesh, 1972
Article 103
Code of Criminal Procedure (V of 1898)
Section 410
Ordinarily this Division does not interfere with the acquittal recorded by the High Court Division in favour of the accuseds but it cannot shirk its responsibility when it comes across an acquittal recorded in the most perfunctory manner leading to great injustice. Jurisdiction of this Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. …… (22)
Momtazuddin Fakir. Additional Attorney-General instructed by Sufia Khatun Advocate-on-Record-For the Appellant.
Khondaker Mahbub Hossain Senior Advocate instructed by M Ashrafuzzaman Khan, Advocate- onRecord-For Respondent.
Judgment
Hasan Foez Siddique J : This appeal is directed against the judgment and order dated 31-8-2005 passed by the High Court Division in Criminal Appeal No. 2528 of 1997 setting aside the judgment and order dated 15-10-1997 passed by the Additional Sessions Judge, First Court, Sylhet, in Sessions Case No. 43 of 1993.
2. The short facts, for the disposal of this appeal, are that there was a long standing internal feud between the accused and PW7 Masuk Uddin and to the effect that the accused attempted to murder him (PW7) but he (PW7) narrowly escaped death, over the self-same occurrence a criminal case bearing GR Case No. 111 of 1991 was pending in the court of Additional District Magistrate, Sylhet. The accused tried to settle the matter in dispute but the informant party declined it. The accused became enraged. On 4-2-1992 at 12-30 hours PW 1, Md Tafazzal Ali, his brother deceased Kotai Miah, nephew deceased Dulu Miah, sister’s son (deceased) Shawkat Ali, grand son deceased Nanu Miah, PW 2, Jam Uddin, PW 3, Shahabuddin, PW 4, Abdur Rouf, PW 7, Masuk Uddin, Faruque Uddin and Kalamandar Ali were coming back towards their respective houses after casting votes at the Mirgonj High School Polling Station for the election of No.8, Vadesshwar Union Parishad within Police Station Golapgonj, while they reached in between Fateh Chand Shop and Faisal Trailers at Mirgonj Bazar then the accused being armed with deadly weapons like kiris, dagger, roll etc. attacked them. Sensing danger PW 1, Md Tafazzal Ali, PW 3, Sahabuddin, PW 7, Masque Ahmed and Kalamandar Kha took shelter in an open hut ghar at Mirgonj Bazarcubits away from the place of occurrence. They raised alarm. Then accused Abdus Salam ordered to eliminate them. Then accused Majiruddin inflicted kiris blow at the neck of deceased Kotai Miah, accused Jalil inflicted dagger blow at the back of the head of deceased Kotai Miah, accused Waris Ali, Tajammul, Masum assaulted deceased AD-48 Kotai Miah by roll who fell down and died at the spot. Accused Kayes Uddin inflicted dagger blow at the chest of deceased Dulu Miah, accused Noman assaulted deceased Dulu by roll who, also died at the spot, accused Tajuddin inflicted kiris blow at the back of Shawakat Ali, accused Abdus Salam inflicted kiris blow at the abdomen of deceased Nanu Miah, accused Nowsad dealt dagger blow at the back of the head of deceased Nanu Niah, accused Muslem Uddin inflicted kiris blow on the hand of Faruque Uddin and accused Jamal Uddin assaulted him by roll causing bleeding injuries, accused Faruque inflicted dagger blow at the neck below Ear of PW 2, Jam Uddin, accused Atab Ali assaulted PW 4, Abdur Rouf by roll causing fracture at his hand. On hearing alarm locals reached at the scene and accused departed from the Mirgonj Bazar. The wounded were sent to Fenchugonj Hospital, then to the Sylhet Hospital and on the way injured Shawkat Ali and Nanu Miah, succumbed to the injuries and their death were also confirmed by the attending doctor at the hospital.
3. On the same day i.e. on 4-2-1992 at 2.00 PM Faruque Ahmed Chairman of the local Union Parishad reported the incident to the Golapgonj Police Station over telephone. On such information GDE No.107 dated 4-2-1992 was recorded at 2-00 pm. On the basis of such information PW 11 Sl Md. Aftab Uddin of Golapgonj Police Station reached to the scene, held inquest upon the cadavers, visited the place of occurrence, prepared sketch map with separate index, seized alamats etc. The prosecution was launched by lodging the First Information Report by PW1, Md Tafazzal Ali brother of the deceased Kotai Miah as informant on 4-2-1992 at 22-30 hours ‘with the Golapgonj Police Station and the same was recorded as Golapgonj Police Station Case ,No.2 dated 4-2-1992;
4. The police after investigation submitted charge-sheet against 34 persons including the respondents.
5. The accused were put on trial in the Court of learned Additional Sessions Judge, First Court, Sylhet who framed a charge under sections 302/149/148 of the Penal Code against all the accused persons, additional charge under sections 302/34 was framed against accused Kayesuddin, Nomanuddin alias Noman, Abdus Salam, Nowsad Ali, Joynal Abedin alias Jamiruddin, Shamimuddin alias Shamim, Emaduddin, Masumuddin, Abdul Jalil, Majeruddin, Wares Ali, Tajammul Ali, additional charge under section 302 of the Penal Code was framed against accused Tajuddin, additional charge under section 324 of the Penal Code was framed against accused Musleuddin and Faruque Uddin and additional charge under section 325 of the Penal Code was framed against accused Atab Ali to which all the accused persons pleaded not guilty.
6. The defence case appears to be that they were innocent and falsely implicated. There was the election for the office of chairman and members of Vadeshhar Union Parishad scheduled to be held on 4-2-1992 and on that day there was a free fight at Mirgonj Bazar between the supporters of two contesting chairman candidates and in the free fight the deceased might have been killed and the accused had nothing to do with the alleged offence and they were falsely implicated in this case.
7. Prosecution examined 12 witnesses and defence examined none and the trial court examined the accused persons under section 342 of the Code of Criminal Procedure. The trial Court convicted the respondent Nos.1 to 4 and 6 to 10 under sections 302/34 of the Penal Code and sentenced each of them to suffer imprisonment for life and to pay fine of Taka 5,000, in default, to suffer rigorous imprisonment for one year more and convicted respondent No.5 under section 302 of the Penal Code and sentenced him to suffer imprisonment for life and to pay fine of Taka 5,000, in default, to suffer rigorous imprisonment for one year more and convicted respondent Nos. 11 to 14 under sections 302/149 of the Penal Code and sentenced each of them to suffer imprisonment for life and to pay fine of Taka 5,000 in default, to suffer rigorous imprisonment for one year more and convicted all the respondents under section 148 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for two years and convicted respondent No. II under section 325 of the Penal Code and sentenced him to suffer rigorous imprisonment for three years, convicted respondent Nos. 12 and 13 under section 324 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for two years and convicted respondent No. 14 under section 323 of the Penal Code and sentenced him to suffer rigorous imprisonment for one year.
8. On appeal, against the said judgment, the High Court Division allowed the appeal and set aside the judgment of the trial court and acquitted all the accused persons. Hence, is the appeal by the State upon getting leave.
9. Mr Momtazuddin Fakir, learned Additional Attorney General appearing on behalf of the State, submits that PWs. 1,2,3,4,5 and 7 are the eye witnesses of the occurrence and amongst them P.Ws.2 and 4 were injured eye witnesses. The eye witnesses narrated the material facts mentioning the overt-acts of the respondents which were consistently corroborated by each other. They proved the prosecution case beyond all shadow of doubt. The High Court Division misread the medical evidence and erroneously held that the medical evidence do not support the prosecution story.
10. On the other hand, Khandaker Mahbub Hossain, learned Senior Counsel appearing on behalf of the respondents, submits that the High Court Division scanning all the evidence rightly acquitted the respondents from the charges. There is no error in the judgment and order of the High Court Division which calls for any interference by this Division.
11. The prosecution case was that the victims along with some witnesses, on the date and time of occurrence, reached in between Fateh Chand Shop and Faisal Trailers at Mirgonj Bazar, the accused respondents armed with deadly weapons attacked the victims.
12. The specific allegations were that the respondent No.6 Majiruddin dealt a kiris blow on the throat below the chin of the victim Kotai Miah and respondent No.7 Abdul Jalil dealt a dagger blow on the back side of the head of victim Kotai PW1 Md Tafazzal Ali, the informant of the case in his evidence said-
“?? ???? ???? ???? ????? ??? ?????? ????? ???? ???? ?? ?????? ???? ???? ??? ????? ????? ???? ???? ?? ???? ???? ????? ????? ???? ????? ???? ???? ?? ????? ????? ???? ??? ?????”
Now let us see whether the medical evidence supports prosecution story as stated or not. It appears from post mortem report (Exhibit 4) of Kotai Miah that the Doctor, holding autopsy, found following injuries on the person of victim Kotai:
(1) One penetrating wound on the occipital region at the right side of mid line measuring 1-1/2″ x 1-1/2″ x upto cavity depth margin-inverted.
(2) One incised wound on the chin at right side measuring 1-1/2 x1/2 x born depth.
(3) One incised wound on lower limb 1-1/2″ x 1/2″ x in size.
(4) Deformity and right side direction of nose was present.
5) Lacerated injury of upper and lower gum present.
13. In view of the post-mortem report of Kotai as quoted above and the consistent evidence of PWs 2, 3, 4, 5 and 7 corroborating the PWI that Abdul Jalil dealt a dagger blow on the back side of the head and Majiruddin dealt a kiris blow on the throat below the thin of the victim Katai, we have no hesitation to hold that the High Court Division arrived at a wrong conclusion that the medical evidence does not support the prosecution case and that the prosecution case is doubtful. We do not find any contradictions or discrepancies in the testimonies of PWs 1, 2, 3 , 4, 5 and 7 those with the medical evidence.
14. The specific allegation against the respondent No.3 Kayes Uddin is that he dealt a dagger blow below the chest of victim Dulu Miah informant PW 1 in his evidence said, ”????? ????? ????? ???? ????? ????? ???? ??? ????? From the postmortem report of the person of victim Dalu Miah (Ext 5), it appears that Doctor, holding autopsy, found following injuries on his person:
“1. One spindle shaped punctured wound on the left 5 inter costals space 1-1/2 x ½ x lateral to sternum measuring 1-1/2 x ½ x upto cavity depth with regular and inverted margin.
2. One abrasion on the right knee joint measuring 1-1/2″ x l”.
15. The PWs 2, 3, 4, 5 and 7 in their deposition stated that the respondent No.3 Kayesh Uddin dealt a dagger blow below the chest of victim Dalu. That is, medical evidence so far injury No. 1 and the evidence of PWs 1, 2, 3 ,4, 5 and 7 against respondent No.3 Kayes Uddin are consistent.
16. PW 1 informant Tafazzal Ali in examination in chief, inter alia, said-
ÓAvmvgx Qvjvg wKwiR w`qv bvbyi ???? ??? ????? ????? ???? ?????? ????? ???? ???? ?????? ????? ?????? ?? ????? ????? ????? ???? ????? ????? ?????? ???? ??? ?????”
17. It appears from post-mortem report of victim Nanu Miah (Exhibit 6) that the Doctor, holding autopsy of his person, found following injuries:
“1. One incised wound on the right parietal region of the head in longitudinal direction measuring 3″ x 1/2” x upto bone depth.
2. One stab injury on the epigastriet region of abdomen measuring l”x 1/2 cavity depth.
3. Abrasions of different size and shape on the back of right shoulder.
18. Prosecution story, as we have seen from the evidence of PW 1, was that the respondent No. 2 Nowsad Ali dealt a dagger blow on the backside of the head of victim Nanu Miah and respondent No.1 Abdus Salam dealt a kiris blow in the abdomen of victim Nanu Miah and accused Jamiruddin, Emaduddin and Shamim (they got acquittal from the trial Court) abruptly assaulted the victim Nanu Miah. The High Court Division acquitted the respondent No.2 Nowsad Ali and respondent No. 1 Abdus Salam on the ground that the medical evidence does not support the prosecution case. From the evidence of PWs 1, 2, 3, 4, 5 and 7, it appears that all of them categorically deposed that Nowsad Ali dealt a dagger blow on the back side of the victim Nanu Miah and Abdus Salam dealt a kiris blow on the abdomen of victim Nanu Miah. The medical evidence quoted above and the evidence of PWs 1, 2, 3, 4, 5 and 7 conclusively proved that Nowsad Ali and Abdus Salam killed the victim Nanu Miah by giving dagger blow and kiris blow to Nanu Miah.
19. We do not find any inconsistency between the evidence of PWs 1, 2, 3, 4, 5 and 7 and the medical evidence.
20. It further appears from the post mortem report of victim Shawkat Ali (Exhibit 7) that the doctor, holding autopsy of his person, found following injuries:
One stab injury on the back of the left side of chest in posterior scapula line in 9th intercostal space in oblique direction.
21. PW I, informant, in his examination- in chief deposed, ”????? ????????? ????? ???? ???? ???? ???? ??? ????? ????? ?? ?????? ????? ????” That is, the prosecution case is that the respondent No.6 Tajuddin dealt a kiris blow on the back side of Shawkat Ali From the evidence of PWs 2, 3, 4, 5 and 7, it appears that all of them categorically stated that accused Tajuddin dealt a kiris blow on the back side of victim Shawkat Ali The post-mortem report of Shawkat Ali as quoted above clearly corroborated the prosecution case as well.
22. Ordinarily this Division does not interfere with the acquittal recorded by the High Court Division in favour of the accuseds but it cannot shirk its responsibility when it comes across an acquittal recorded in the most perfunctory manner leading to great injustice. The High Court Division ought not to have rejected the evidence of important eye witnesses and the medical evidence in such a serious case which resulted in four murders. The High Court Division has not cared to examine the details of the intrinsic merits of the evidence of the eye witnesses and has rejected their evidence on the general grounds. It is true that jurisdiction of this Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion on recorded by the court below is such which could not have been possibly arrived by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. In the instant case, the order of acquittal of Respondents No.1, 2, 3, 5, 6 and 7 is not reasonably sustainable on the evidence of record so this court is authorized to interfere with such an order of acquittal and set at naught the injustice done.
23. The findings of the High Court Division, at least, in respect the respondent No. I. Abdus Salam, 2. Nowsad Ali, 3. Kayes Uddin, 5. Tajuddin, 6. Majiruddin; and 7. Abdul Jalil are not based on the evidence on record. The High Court Division misread and misconstrued the evidence of PWs 1, 2, 3, 5, 6 and 7 and the post mortem reports of the Victims and thereby erroneously held that the medical evidence do not support the prosecution case. We are of the view that prosecution had been proved its case beyond all shadow of doubt so far as it relates to the respondent No. I, 2, 3, 5, 6 and 7. The judgment and order of acquittal so far those respondents are concerned are liable to be set side.
24. It appears from the evidence on record that the charge against the other respondents, that is, respondents No.4 Nomanuddin alias Mamun son of Waris Ali, 8. Masumuddin son of Atab Ali, 9. Waris Ali son of Nasimuddin, 10 Tajmul Ali alias Tajammul Ali son of late Masaddar Ali, 11. Atab Ali son of late Asad Ali, 12. Mosleuddin son of Atab Ali, 13. Farukuddin; and 14. Jamaluddin had not been roved beyond all reasonable doubt.
25. Accordingly, the appeal is allowed in part. The judgment and order of acquittal passed by the High Court Division in respect of respondent No.1. Abdus Salam, 2. Nawsad Ali, Sons of late Rashid Ali, 3. Kayes Uddin @ Foyezuddin Forshudin, 5. Tajuddin, 6. Majiruddin; and 7. Abdul Jalil, Sons of Matasin Ali @ Motadin Ali @ Tamiz Ali is set aside and the judgment and order of the trial Court so far those respondents are concerned is hereby restored. The appeal so far the rest of the respondents are concerned is hereby set aside. The respondent No.1 Abdus Salam, 2. Nawsad Ali, 3. Kayesuddin @ Foyezuddin Forshudin, 5. Tajuddin, 6. Majiruddin
and 7. Abdul Jalil are directed to surrender before the Chief Judicial Magistrate, Sylhet to serve out rest of their sentences awarded by the Court. In case of failure to surrender before the concerned Court, the Chief Judicial Magistrate of Sylhet shall take step to take them in custody.
