(From previous issue) :
He further submitted that since the evidence of the eye witnesses are not fully consistent with the post mortem examination report and the evidence of the Doctor PW 14, creates doubt which is sufficient to commute the sentence of death to one of imprisonment for life and the High Court Division erred in law in not considering this aspect.
11. The State respondent did not file any concise statement. Mr Biswajit Deb Nath, learned Deputy Attorney-General appearing for the State with leave made submissions in support of the impugned judgement and order of the High Court Division.
12. We have considered the submissions of the learned Advocate for the appellants and the learned DAG for the respondent and perused the impugned judgment and order of the High Court Division and other connected papers on record.
13. It appears that only two injuries having been found on the dead body of the victim, there is some doubt created inasmuch as one of the convict appellants did not shoot the victim with any firearm, or his shot, if fired at all, did not hit the victim. There is no doubt from the evidence and materials on record that the presence of the convict appellants at the place of occurrence was established. There is no way of assessment as to which one of the three convict appellants did not use his firearm against the victim. Hence, there is no illegality in the findings of the trial Court which has been upheld by the High Court Division, that the convict appellants are guilty on an offence under sections 302/34 of the Penal Code. However, the question of sentence based on the given facts and circumstances, has to be looked at carefully.
14. In this regard we may profitably refer to the decision in the case of Hari Har Singh vs State of UP, 19754 SCC 148. In that case two of the accused had shot the victim and three others had struck with lathis. The medical evidence indicated that the victim died of the cumulative effect of the injuries. Out of four shots fired by the accused only two hit the victim. It was held that where the accused had not been convicted under section 302 simpliciter the death penalty ought not to have been imposed. On the medical evidence it could not be proved which of the two gunshot injuries was sufficient in the ordinary course of nature to cause the death of the victim.
15. In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate.
16. Moreover, the accused appellants were convicted and sentenced to death by an order of the trial Court dated 21-4-2003. The convict appellants have therefore, suffered in the condemned cell for almost twelve years. In this connection we may refer to our earlier decision in the case of Manik vs State judgement delivered on 19th January, 2015 (unreported) where the sentence of death was commuted to imprisonment for life considering, inter alia, the long period spent in the condemned cell.
17. In view of the discussion above, we are of the opinion that ends of justice will be sufficiently met if the sentence of death is commuted to imprisonment for life.
18. Accordingly, the jail appeals, which challenged only the sentence of the convict appellants, are allowed and the sentence of death imposed upon the convict appellants Sohel Dewan @ Mehedi Hasan @ Chanchal, Billal Hossain and Md Omar Faruq is commuted to one of imprisonment for life.
(Concluded)
He further submitted that since the evidence of the eye witnesses are not fully consistent with the post mortem examination report and the evidence of the Doctor PW 14, creates doubt which is sufficient to commute the sentence of death to one of imprisonment for life and the High Court Division erred in law in not considering this aspect.
11. The State respondent did not file any concise statement. Mr Biswajit Deb Nath, learned Deputy Attorney-General appearing for the State with leave made submissions in support of the impugned judgement and order of the High Court Division.
12. We have considered the submissions of the learned Advocate for the appellants and the learned DAG for the respondent and perused the impugned judgment and order of the High Court Division and other connected papers on record.
13. It appears that only two injuries having been found on the dead body of the victim, there is some doubt created inasmuch as one of the convict appellants did not shoot the victim with any firearm, or his shot, if fired at all, did not hit the victim. There is no doubt from the evidence and materials on record that the presence of the convict appellants at the place of occurrence was established. There is no way of assessment as to which one of the three convict appellants did not use his firearm against the victim. Hence, there is no illegality in the findings of the trial Court which has been upheld by the High Court Division, that the convict appellants are guilty on an offence under sections 302/34 of the Penal Code. However, the question of sentence based on the given facts and circumstances, has to be looked at carefully.
14. In this regard we may profitably refer to the decision in the case of Hari Har Singh vs State of UP, 19754 SCC 148. In that case two of the accused had shot the victim and three others had struck with lathis. The medical evidence indicated that the victim died of the cumulative effect of the injuries. Out of four shots fired by the accused only two hit the victim. It was held that where the accused had not been convicted under section 302 simpliciter the death penalty ought not to have been imposed. On the medical evidence it could not be proved which of the two gunshot injuries was sufficient in the ordinary course of nature to cause the death of the victim.
15. In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate.
16. Moreover, the accused appellants were convicted and sentenced to death by an order of the trial Court dated 21-4-2003. The convict appellants have therefore, suffered in the condemned cell for almost twelve years. In this connection we may refer to our earlier decision in the case of Manik vs State judgement delivered on 19th January, 2015 (unreported) where the sentence of death was commuted to imprisonment for life considering, inter alia, the long period spent in the condemned cell.
17. In view of the discussion above, we are of the opinion that ends of justice will be sufficiently met if the sentence of death is commuted to imprisonment for life.
18. Accordingly, the jail appeals, which challenged only the sentence of the convict appellants, are allowed and the sentence of death imposed upon the convict appellants Sohel Dewan @ Mehedi Hasan @ Chanchal, Billal Hossain and Md Omar Faruq is commuted to one of imprisonment for life.
(Concluded)
