High Court Division :
(Criminal Appellate Jurisdiction)
Syed Md Ziaul
Karim J
Ashish Ranjan Das J
Abdul Azid alias Azid Dacoit. …….
…………..Convict- Appellant
vs
State……..Respondent*
Judgment
February 23rd, 2014.
Code of Criminal Procedure (V of 1898)
Section 35A(1)
Total period the appellants have been in custody before conviction in connection with offence shall be deducted from the sentence of imprisonment awarded to them. . ….. (32)
Joshna Akhter, Advocate-For the Convict Appellant.
Hasna Begum, Advocate-For the Appellants in all Jail Appeals,
Sakila Rowshan, DAG with Sharmina Haque, AAG and Md. Showardhi, AAG-For the State-Respondent.
Judgment
Syed Md Ziaul Karim J : By these appeals, the convict-appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 25-6-2007 passed by learned Judge of Special Tribunal No.4, Moulvibazar, in Special Powers Case No. 18 of 2007 convicting them under sections 19A and 19(f) of the Arms Act and sentencing each of them to suffer rigorous imprisonment for fourteen years.
2. The prosecution case as projected in the first information report and unfurled at trial are that on 22-1-2007 at 17-30 hrs. SI Sadequl Islam (PW8) received a secret information to that some inter-gang dacoits assembled in the village home of accused Abdul Azid alias Azid dacoit at village Chalk Kabiraji within Kamalgonj Police Station. Later, he along with other Police personnel namely PSI Sirajuddin (PW 1), PSI Abdul Jabber (PW 4), ASI, Md Yusuf Ali (PW 2), ASI Md Farhad Hossain (PW 3), ASI Shahalam, ASI Jamaluddin, and C-Abdur Rashid rushed there. Sensing their presence all the accused tried to flyaway from them, accused Abdul Azid, Akmol Hossain, Sabuz Miah and Kador Ali were nabbed by them with one country made two bore guns along with four bullets and two ramdao. He (PW 8) also seized different house hold atticles from there and prepared seizure list in presence of locals namely Md Shahjahan (PW 5), Machim Ali (PW 6). Thereafter, he handed over the accused with seized articles to the Kamalgonj Police Station. The prosecution was launched by lodging a first information report by PW 8 Md Sadequl Islam, as informant which was recorded as Kamalgonj PS Case No.9 dated 23-1-2007.
3. The Police after investigation submitted charge-sheet accusing the appellants as accused.
4. Eventually, the appellants were called upon to answer the charge under sections 19A and 19(f) of the Arms Act to which they pleaded not guilty and claimed to be tried.
5. In course of trial the prosecution in all examined nine witnesses. The defence examined none.
6. After closure of the prosecution case the accused convicts on dock examined under section 342 of the Code of Criminal Procedure, where again they repeated their innocence and led no evidence in defence.
(To be continued)
7. The defence as it appears from trend of cross-examination of the prosecution witnesses are that of innocence and false implication ..
8. After trial the accused were convicted as aforesaid.
9. The learned Advocates appearing for the convict- appellants support the appeal. Their common contentions are that the alleged incriminating arms were not recovered from the exclusive control and possession of the appellants. They submit that the Charge as framed against the appellants are not consistent with the prosecution case. Moreso, they are in custody since 22-1-2007 for about more than seven years. They lastly submit that they have been languishing in custody since 22-1-2007 so their sentence may be reduced.
10. The learned Deputy Attorney-General appearing for the State-respondent opposes the appeal and submits that the learned Judge after considering the materials on record and consistent evidence convicted the appellants which calls for no interference by this Court.
11. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
12. Now the question calls for consideration whether the incriminating seized arms were recovered from the exclusive control and possession of the appellants.
13. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
14. PWI PSI Sirajuddin. He deposed that he was the informant at the time of recovery of the arms. On 22-1-2007 at 5-30 hrs they rushed to the house of accused Azid and recovered two bore guns along with four bullets. They also recovered two Chinese axe in presence of the witnesses. Then SI Sadequl Islam prepared seizure list and lodged the FIR.
15. In cross-examination he stated that the seized arms were not examined by the ballistic expert. He denied the suggestion that after perfunctory investigation charge-sheet was submitted.
16. PW2, ASI Md Yusuf Ali, PW3 ASI Md Farhad Hossain, PW4 PSI Abdul Jabber, they were also with the informant at the time of raiding. They deposed that on 22-1-2007 on the basis of a secret information they along with the informant rushed to the house of accused Abdul Azid and arrested them with arms, they recovered two bore guns from the accused Azid, one arrow from Sabuj and two ramdao from accused Kador and Akmol. Informant prepared seizure list in presence of locals and they were handed over the accused to the Police Station.
17. In cross-examination they denied the suggestion that the arms were recovered from the accused and they deposed falsely.
18. PW5 Md Shahjahan and PW 6 Md Machim all were locals seizure list witnesses. They categorically stated that on 22-1-2007 at 5-30 hrs the Police raided the house of Abdul Azid of village Chalk Kabiraji and recovered one two bore gun, ramdao, rod and arrow from there and prepared seizure list. They also stood as witnesses in the seizure list. Of them PW 5 Md Shahjahan proved the seizure list as Exbt. l and his signature on it 1/1.
19. In cross-examination they categorically stated that they had no knowledge about’ what were noted in the seizure list and they denied the suggestion that they had no knowledge about the occurrence.
20. PW7 Sundar Ali, a local witness. He deposed that on 22-1-2007 at 5-30 PM police raided the house of Abdul Azid at village Chalk Kabiraji and recovered two bore guns, ramdao, and arrow and other house hold articles. He identified the accused on dock.
21. In cross-examination he admitted that there was an enmity between them since marriage of her daughter and being influenced he was deposing falsely.
22. PW 8 SI Md Sadequl Islam was the informant of the case. On 22-1-2007 he received a secret information that some inter-gang unknown dacoits were assembled in the house of Abdul Azid, he along with other Police personnel rushed there, sensing their presence the accused tried to flyaway but they succeeded to nab them and recovered different arms from them. He also prepared seizure list and handed them to the Police Station. He lodged the FIR and proved it as Exbt.2 and his signature on it 2/1.
23. In cross-examination he stated that the arms were seized in presence of the witnesses and he could not remember how many items were in the seizure list. He denied the suggestion that he did not visit the PO and instituted the false case against the accused.
24. PW 9 SI Md. Hadeyet Islam was the investigating officer of the case. He deposed that on 23-1-2007 he was attached with Kamalgonj Police Station. The case was entrusted to him for investigation. He visited the place of occurrence, prepared sketch map and index (Exbts 4 and 5 respectively). He recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure and after investigation submitted charge-sheet against the accused.
25. In cross-examination he denied the sugestion that no arms were recovered from the accused and after perfunctory investigation he submitted charge-sheet and the accused were innocent.
26. These are all of the evidence on record adduced by the prosecution to prove the charge.
27. On going to the evidence on record it transpires that in course of trial the prosecution in all examined nine witnesses, of them PWs I, 2, 3 and 4 were the Police Personnel and member of the raiding party, PW 8 was the informant and PW 9 was the investigating officer of this case. PW 5, PW 6 and PW 7 were local witnesses. Of them, PWs 5 and 6 were the seizure list witnesses.
28. On appraisal of the evidence on record it transpires that the case absolutely rests upon the evidence of Police personnel. The other witnesses namely PW 5, PW 6 and PW 7 were examined to corroborate the evidence of Police personnel. PW 8 is the informant who categorically stated that on 22-1-2007 he received secret information that some inter-gang dacoits assembled in the village home of accused Azid. He along with other Police personnel rushed there at 5-30 PM they succeeded to arrest the accused persons with two bore guns, along with ramdao, Chinese axe and arrow and other house hold articles. PW 1, PW 2, PW 3 and PW 4 who were the members of the raiding party corroborated the evidence of PW-8 regarding recovery of the arms from the accused. Moreso PWs 5, 6 and 7 are the local witnesses they corroborated the evidence of other Police personnel in respect of recovery of arms. PWs 5 and 6 stood as witnesses in the seizure list and they stated that the alleged arms were recovered in their presence.
29. It transpires that the evidence of all the prosecution witnesses in respect of recovery of the arms from the convict-appellants are consistent, uniform and corroborative with each other in respect of all materials particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses having no reason whatsoever to depose falsely against the appellants. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility.
30. Moreover, the impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. So the submissions advanced by the learned Counsels for the appellants are not the correct exposition of law and facts. On the contrary the submissions advanced by the learned Deputy Attorney-General prevails and appears to have a good deal of force. We have considered the humanitarian submissions of the learned Counsels for the defence to the effect that the convicts have been languishing in jail for about seven years, so we are inclined to reduce their quantum of sentences.
31. In view of foregoing narrative the appeals are dismissed with modification of sentences to the effect that the appellants are convicted under sections 19A and 19(f) of the Arms Act and each of them are sentenced to suffer rigorous imprisonment for ten years.
32. In view of Provisions laid down in section 35A(I) of the Code of Criminal Procedure the total period the appellants have been in custody before conviction in connection with this offence shall be deducted from the sentence of imprisonment awarded to them.
Office is directed to send down the record at once.
(Criminal Appellate Jurisdiction)
Syed Md Ziaul
Karim J
Ashish Ranjan Das J
Abdul Azid alias Azid Dacoit. …….
…………..Convict- Appellant
vs
State……..Respondent*
Judgment
February 23rd, 2014.
Code of Criminal Procedure (V of 1898)
Section 35A(1)
Total period the appellants have been in custody before conviction in connection with offence shall be deducted from the sentence of imprisonment awarded to them. . ….. (32)
Joshna Akhter, Advocate-For the Convict Appellant.
Hasna Begum, Advocate-For the Appellants in all Jail Appeals,
Sakila Rowshan, DAG with Sharmina Haque, AAG and Md. Showardhi, AAG-For the State-Respondent.
Judgment
Syed Md Ziaul Karim J : By these appeals, the convict-appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 25-6-2007 passed by learned Judge of Special Tribunal No.4, Moulvibazar, in Special Powers Case No. 18 of 2007 convicting them under sections 19A and 19(f) of the Arms Act and sentencing each of them to suffer rigorous imprisonment for fourteen years.
2. The prosecution case as projected in the first information report and unfurled at trial are that on 22-1-2007 at 17-30 hrs. SI Sadequl Islam (PW8) received a secret information to that some inter-gang dacoits assembled in the village home of accused Abdul Azid alias Azid dacoit at village Chalk Kabiraji within Kamalgonj Police Station. Later, he along with other Police personnel namely PSI Sirajuddin (PW 1), PSI Abdul Jabber (PW 4), ASI, Md Yusuf Ali (PW 2), ASI Md Farhad Hossain (PW 3), ASI Shahalam, ASI Jamaluddin, and C-Abdur Rashid rushed there. Sensing their presence all the accused tried to flyaway from them, accused Abdul Azid, Akmol Hossain, Sabuz Miah and Kador Ali were nabbed by them with one country made two bore guns along with four bullets and two ramdao. He (PW 8) also seized different house hold atticles from there and prepared seizure list in presence of locals namely Md Shahjahan (PW 5), Machim Ali (PW 6). Thereafter, he handed over the accused with seized articles to the Kamalgonj Police Station. The prosecution was launched by lodging a first information report by PW 8 Md Sadequl Islam, as informant which was recorded as Kamalgonj PS Case No.9 dated 23-1-2007.
3. The Police after investigation submitted charge-sheet accusing the appellants as accused.
4. Eventually, the appellants were called upon to answer the charge under sections 19A and 19(f) of the Arms Act to which they pleaded not guilty and claimed to be tried.
5. In course of trial the prosecution in all examined nine witnesses. The defence examined none.
6. After closure of the prosecution case the accused convicts on dock examined under section 342 of the Code of Criminal Procedure, where again they repeated their innocence and led no evidence in defence.
(To be continued)
7. The defence as it appears from trend of cross-examination of the prosecution witnesses are that of innocence and false implication ..
8. After trial the accused were convicted as aforesaid.
9. The learned Advocates appearing for the convict- appellants support the appeal. Their common contentions are that the alleged incriminating arms were not recovered from the exclusive control and possession of the appellants. They submit that the Charge as framed against the appellants are not consistent with the prosecution case. Moreso, they are in custody since 22-1-2007 for about more than seven years. They lastly submit that they have been languishing in custody since 22-1-2007 so their sentence may be reduced.
10. The learned Deputy Attorney-General appearing for the State-respondent opposes the appeal and submits that the learned Judge after considering the materials on record and consistent evidence convicted the appellants which calls for no interference by this Court.
11. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
12. Now the question calls for consideration whether the incriminating seized arms were recovered from the exclusive control and possession of the appellants.
13. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
14. PWI PSI Sirajuddin. He deposed that he was the informant at the time of recovery of the arms. On 22-1-2007 at 5-30 hrs they rushed to the house of accused Azid and recovered two bore guns along with four bullets. They also recovered two Chinese axe in presence of the witnesses. Then SI Sadequl Islam prepared seizure list and lodged the FIR.
15. In cross-examination he stated that the seized arms were not examined by the ballistic expert. He denied the suggestion that after perfunctory investigation charge-sheet was submitted.
16. PW2, ASI Md Yusuf Ali, PW3 ASI Md Farhad Hossain, PW4 PSI Abdul Jabber, they were also with the informant at the time of raiding. They deposed that on 22-1-2007 on the basis of a secret information they along with the informant rushed to the house of accused Abdul Azid and arrested them with arms, they recovered two bore guns from the accused Azid, one arrow from Sabuj and two ramdao from accused Kador and Akmol. Informant prepared seizure list in presence of locals and they were handed over the accused to the Police Station.
17. In cross-examination they denied the suggestion that the arms were recovered from the accused and they deposed falsely.
18. PW5 Md Shahjahan and PW 6 Md Machim all were locals seizure list witnesses. They categorically stated that on 22-1-2007 at 5-30 hrs the Police raided the house of Abdul Azid of village Chalk Kabiraji and recovered one two bore gun, ramdao, rod and arrow from there and prepared seizure list. They also stood as witnesses in the seizure list. Of them PW 5 Md Shahjahan proved the seizure list as Exbt. l and his signature on it 1/1.
19. In cross-examination they categorically stated that they had no knowledge about’ what were noted in the seizure list and they denied the suggestion that they had no knowledge about the occurrence.
20. PW7 Sundar Ali, a local witness. He deposed that on 22-1-2007 at 5-30 PM police raided the house of Abdul Azid at village Chalk Kabiraji and recovered two bore guns, ramdao, and arrow and other house hold articles. He identified the accused on dock.
21. In cross-examination he admitted that there was an enmity between them since marriage of her daughter and being influenced he was deposing falsely.
22. PW 8 SI Md Sadequl Islam was the informant of the case. On 22-1-2007 he received a secret information that some inter-gang unknown dacoits were assembled in the house of Abdul Azid, he along with other Police personnel rushed there, sensing their presence the accused tried to flyaway but they succeeded to nab them and recovered different arms from them. He also prepared seizure list and handed them to the Police Station. He lodged the FIR and proved it as Exbt.2 and his signature on it 2/1.
23. In cross-examination he stated that the arms were seized in presence of the witnesses and he could not remember how many items were in the seizure list. He denied the suggestion that he did not visit the PO and instituted the false case against the accused.
24. PW 9 SI Md. Hadeyet Islam was the investigating officer of the case. He deposed that on 23-1-2007 he was attached with Kamalgonj Police Station. The case was entrusted to him for investigation. He visited the place of occurrence, prepared sketch map and index (Exbts 4 and 5 respectively). He recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure and after investigation submitted charge-sheet against the accused.
25. In cross-examination he denied the sugestion that no arms were recovered from the accused and after perfunctory investigation he submitted charge-sheet and the accused were innocent.
26. These are all of the evidence on record adduced by the prosecution to prove the charge.
27. On going to the evidence on record it transpires that in course of trial the prosecution in all examined nine witnesses, of them PWs I, 2, 3 and 4 were the Police Personnel and member of the raiding party, PW 8 was the informant and PW 9 was the investigating officer of this case. PW 5, PW 6 and PW 7 were local witnesses. Of them, PWs 5 and 6 were the seizure list witnesses.
28. On appraisal of the evidence on record it transpires that the case absolutely rests upon the evidence of Police personnel. The other witnesses namely PW 5, PW 6 and PW 7 were examined to corroborate the evidence of Police personnel. PW 8 is the informant who categorically stated that on 22-1-2007 he received secret information that some inter-gang dacoits assembled in the village home of accused Azid. He along with other Police personnel rushed there at 5-30 PM they succeeded to arrest the accused persons with two bore guns, along with ramdao, Chinese axe and arrow and other house hold articles. PW 1, PW 2, PW 3 and PW 4 who were the members of the raiding party corroborated the evidence of PW-8 regarding recovery of the arms from the accused. Moreso PWs 5, 6 and 7 are the local witnesses they corroborated the evidence of other Police personnel in respect of recovery of arms. PWs 5 and 6 stood as witnesses in the seizure list and they stated that the alleged arms were recovered in their presence.
29. It transpires that the evidence of all the prosecution witnesses in respect of recovery of the arms from the convict-appellants are consistent, uniform and corroborative with each other in respect of all materials particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses having no reason whatsoever to depose falsely against the appellants. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility.
30. Moreover, the impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. So the submissions advanced by the learned Counsels for the appellants are not the correct exposition of law and facts. On the contrary the submissions advanced by the learned Deputy Attorney-General prevails and appears to have a good deal of force. We have considered the humanitarian submissions of the learned Counsels for the defence to the effect that the convicts have been languishing in jail for about seven years, so we are inclined to reduce their quantum of sentences.
31. In view of foregoing narrative the appeals are dismissed with modification of sentences to the effect that the appellants are convicted under sections 19A and 19(f) of the Arms Act and each of them are sentenced to suffer rigorous imprisonment for ten years.
32. In view of Provisions laid down in section 35A(I) of the Code of Criminal Procedure the total period the appellants have been in custody before conviction in connection with this offence shall be deducted from the sentence of imprisonment awarded to them.
Office is directed to send down the record at once.
