Appellate Division
(Criminal)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Shamsul Huda J
Tapan and others …
……………..Petitioners
[In Crl P No.91 of 2010]
Vs
State ……..
…… Respondent*
[In all the cases]
Judgment
August 13th, 2012.
Code of Criminal Procedure (V of 1898)
Section 374
As there is no conclusive evidence as regards the principal assailant, ends of justice would be met if the sentence of the petitioners is commutated to imprisonment for life ….(7)
Khondaker Mahbub Hossain. Senior Advocate. instructed by Mohammad Ali. Advocate-on-Record-For the Petitioner. (In Crl P. Nos.91 & 195 of [2010)
Khondaker Mahbub Hossain, Senior Advocate. instructed by Syed Mahbubur Rahman, Advocate-on-Record-For the Petitioner. (In Crl/ P.No.145 of 2010)
None Represented-For the Respondent. (In all the cases)
Judgment
SK Sinha J: These petitions arise out of the same judgments in respect of the same case and therefore, these petitions are disposed of analogously by this order.
2. Petitioners had faced trial before the Druta Bichar Tribunal No.4, Dhaka for the murder of our Mohammad Khan, father of the informant Nurul Alam Khan (PW1) on 15th August, 2001 at about 8-25 PM. It is said, the deceased a social worker and a business man formed a Samity for prevention of crimes in the locality. Petitioners demanded toll of Taka 20,000 from one Milon and on getting such information, the deceased revoked the accused persons against which they threatened him to dire consequences.
On the fateful night, when the victim was returning home he was attacked by the petitioners with deadly weapons and shot him to death indiscriminately at the place of occurrence. On getting such information, the informant and other persons took the victim to the Dhaka Medical Hospital and on the ‘Way, he disclosed the names of the petitioners as his assailants. Victim died in the hospital sometimes thereafter. Besides the above dying declaration, the prosecution has also relied upon the confessional statement of the accused petitioner Sumon Kazi @ Saiful Alam Sumon. Prosecution examined 14 witnesses in support of its case.
3. The tribunal believed the dying declaration of the victim proved by PWs I and 2 and corroborated by PW 5, and on consideration of the fact of their absconding which is a corroborating fact to connect them in the commission of murder, found the petitioners guilty under sections 302/34 of the Penal Code and sentenced each of them to death. The High Court Division heard the death reference along with the connected jail appeals preferred by the petitioners and the criminal appeals and by the impugned judgment, accepted the death reference, maintained the conviction and sentence of the petitioners.
The High Court Division held that the prosecution has been able to prove the dying declaration of the victim which is corroborated by the confessional statement of accused Sumon, and was of the opinion that the tribunal is justified in convicting and sentencing of the petitioners.
4. Mr Khandaker Mahbub Hossain, learned counsel appearing for the petitioners has taken us to the confessional statement of accused Sumon, the dying declaration of the victim proved by PWs 1, 2 and 5 and other materials on record and submits that the High Court Division erred in law in maintaining the conviction and sentence of the petitioners, inasmuch as, the dying declaration proved by prosecution cannot be the basis for the conviction of the petitioners. According to the learned counsel, the victim sustained five gun shot injuries and under such circumstances, it was not a believable story that the victim would be able to make declaration as narrated by PW 1. Learned counsel further submits that according to PW 1, Milon accompanied him but the prosecution did not examine Milon and therefore, there remain doubt as to whether the victim made any dying declaration.
He further submits that the confessional statement is totally exculpatory in nature which cannot be used against the petitioners as corroborative evidence and that the High Court Division has failed to consider this aspect of matter and illegally maintained the conviction and sentence.
5. The occurrence took place on 15th August, 2001 at about 8-25 PM and the FIR was lodged on the same day at about 11-45 PM within less than 3 hours of the time of occurrence and in the said FIR, the informant specifically alleged that on the way to hospital, the victim made a dying declaration disclosing the names of the petitioners as his assailants.
Besides PW 1, his cousin Md Milon Khan (PW 2) corroborated the statements of PW 1 so far as it relates to the fact of making dying declaration by the victim on the way to hospital. Md Shajahan Talukdar (PW 5) corroborated the statements of PW 1. The defence thoroughly cross-examined them but failed to shake their testimony in any manner as regards the discloser of the victim about the names of his assailants. In the confessional statement also, accused Sumon disclosed the names of the petitioners which can be used as corroborative evidence.
6. The High Court Division as well as the tribunal on a thorough assessment of the evidence along with the confessional statement believed the prosecution case that the victim made a dying declaration implicating the petitioners and that the confessional statement of Sumon is true and voluntary in which Sumon had corroborated the prosecution’s version of the deceased’s making of a dying declaration.
The defence did not deny the prosecution case of the death of the victim as a result of gun shot injuries. Though the victim sustained five gun shot injuries, of them, one is on the neck, on a close scrutiny of the autopsy report which has been admitted into evidence, we notice that the injury on the neck is on the left side and not on middle of the neck causing injury to the vocal cords.
The other gun shot injuries are on the lower part of the left abdomen, the left side of the buttock and on the legs. In view of the consistent evidence of PWs I and 2 regarding the dying declaration which have also been mentioned in the FIR lodged immediate after the occurrence, the High Court Division has rightly believed that the victim made a dying declaration implicating the petitioners as his assailants. We cannot take a contrary view in the absence of any cogent ground to disbelieve the same. The submissions of the learned counsel in this regard are superficial in nature.
7. Though there are sufficient evidence against the petitioners in support of the charge, it is not clear from the materials on record that all the petitioners have shot at the victim or that who is responsible for the cause of death.
The evidence in this connection is superficial in nature. It is stated that accused Tapan, Ranga, Mubarak shot at the victim and other persons were with them. It has not been clarified as to who shot the injuries on the neck, abdomen and legs.
The death as it appears from the opinion, was due to the cumulative affect of all the injuries. The confessing accused stated that Mubarak shot him from the backside and then Tapan and Nazir shot at him.
This statement is taken along with the autopsy report creates doubt as at who is responsible for causing injury on the neck. The prosecution also failed to prove on whose gun shot injury the victim had actually died. This could be ascertained if the doctor who performed autopsy was examined.
The prosecution could not produce him as he was not available. As there is no conclusive evidence as regards, the principal assailant we are of the view that the ends of justice would be met if the sentence of the petitioners is commutated to imprisonment for life.
8. The petitions are, accordingly, dismissed with the modification of sentence. Since convicts have preferred regular petitions, jail petitions have rendered infructious.
(Criminal)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Shamsul Huda J
Tapan and others …
……………..Petitioners
[In Crl P No.91 of 2010]
Vs
State ……..
…… Respondent*
[In all the cases]
Judgment
August 13th, 2012.
Code of Criminal Procedure (V of 1898)
Section 374
As there is no conclusive evidence as regards the principal assailant, ends of justice would be met if the sentence of the petitioners is commutated to imprisonment for life ….(7)
Khondaker Mahbub Hossain. Senior Advocate. instructed by Mohammad Ali. Advocate-on-Record-For the Petitioner. (In Crl P. Nos.91 & 195 of [2010)
Khondaker Mahbub Hossain, Senior Advocate. instructed by Syed Mahbubur Rahman, Advocate-on-Record-For the Petitioner. (In Crl/ P.No.145 of 2010)
None Represented-For the Respondent. (In all the cases)
Judgment
SK Sinha J: These petitions arise out of the same judgments in respect of the same case and therefore, these petitions are disposed of analogously by this order.
2. Petitioners had faced trial before the Druta Bichar Tribunal No.4, Dhaka for the murder of our Mohammad Khan, father of the informant Nurul Alam Khan (PW1) on 15th August, 2001 at about 8-25 PM. It is said, the deceased a social worker and a business man formed a Samity for prevention of crimes in the locality. Petitioners demanded toll of Taka 20,000 from one Milon and on getting such information, the deceased revoked the accused persons against which they threatened him to dire consequences.
On the fateful night, when the victim was returning home he was attacked by the petitioners with deadly weapons and shot him to death indiscriminately at the place of occurrence. On getting such information, the informant and other persons took the victim to the Dhaka Medical Hospital and on the ‘Way, he disclosed the names of the petitioners as his assailants. Victim died in the hospital sometimes thereafter. Besides the above dying declaration, the prosecution has also relied upon the confessional statement of the accused petitioner Sumon Kazi @ Saiful Alam Sumon. Prosecution examined 14 witnesses in support of its case.
3. The tribunal believed the dying declaration of the victim proved by PWs I and 2 and corroborated by PW 5, and on consideration of the fact of their absconding which is a corroborating fact to connect them in the commission of murder, found the petitioners guilty under sections 302/34 of the Penal Code and sentenced each of them to death. The High Court Division heard the death reference along with the connected jail appeals preferred by the petitioners and the criminal appeals and by the impugned judgment, accepted the death reference, maintained the conviction and sentence of the petitioners.
The High Court Division held that the prosecution has been able to prove the dying declaration of the victim which is corroborated by the confessional statement of accused Sumon, and was of the opinion that the tribunal is justified in convicting and sentencing of the petitioners.
4. Mr Khandaker Mahbub Hossain, learned counsel appearing for the petitioners has taken us to the confessional statement of accused Sumon, the dying declaration of the victim proved by PWs 1, 2 and 5 and other materials on record and submits that the High Court Division erred in law in maintaining the conviction and sentence of the petitioners, inasmuch as, the dying declaration proved by prosecution cannot be the basis for the conviction of the petitioners. According to the learned counsel, the victim sustained five gun shot injuries and under such circumstances, it was not a believable story that the victim would be able to make declaration as narrated by PW 1. Learned counsel further submits that according to PW 1, Milon accompanied him but the prosecution did not examine Milon and therefore, there remain doubt as to whether the victim made any dying declaration.
He further submits that the confessional statement is totally exculpatory in nature which cannot be used against the petitioners as corroborative evidence and that the High Court Division has failed to consider this aspect of matter and illegally maintained the conviction and sentence.
5. The occurrence took place on 15th August, 2001 at about 8-25 PM and the FIR was lodged on the same day at about 11-45 PM within less than 3 hours of the time of occurrence and in the said FIR, the informant specifically alleged that on the way to hospital, the victim made a dying declaration disclosing the names of the petitioners as his assailants.
Besides PW 1, his cousin Md Milon Khan (PW 2) corroborated the statements of PW 1 so far as it relates to the fact of making dying declaration by the victim on the way to hospital. Md Shajahan Talukdar (PW 5) corroborated the statements of PW 1. The defence thoroughly cross-examined them but failed to shake their testimony in any manner as regards the discloser of the victim about the names of his assailants. In the confessional statement also, accused Sumon disclosed the names of the petitioners which can be used as corroborative evidence.
6. The High Court Division as well as the tribunal on a thorough assessment of the evidence along with the confessional statement believed the prosecution case that the victim made a dying declaration implicating the petitioners and that the confessional statement of Sumon is true and voluntary in which Sumon had corroborated the prosecution’s version of the deceased’s making of a dying declaration.
The defence did not deny the prosecution case of the death of the victim as a result of gun shot injuries. Though the victim sustained five gun shot injuries, of them, one is on the neck, on a close scrutiny of the autopsy report which has been admitted into evidence, we notice that the injury on the neck is on the left side and not on middle of the neck causing injury to the vocal cords.
The other gun shot injuries are on the lower part of the left abdomen, the left side of the buttock and on the legs. In view of the consistent evidence of PWs I and 2 regarding the dying declaration which have also been mentioned in the FIR lodged immediate after the occurrence, the High Court Division has rightly believed that the victim made a dying declaration implicating the petitioners as his assailants. We cannot take a contrary view in the absence of any cogent ground to disbelieve the same. The submissions of the learned counsel in this regard are superficial in nature.
7. Though there are sufficient evidence against the petitioners in support of the charge, it is not clear from the materials on record that all the petitioners have shot at the victim or that who is responsible for the cause of death.
The evidence in this connection is superficial in nature. It is stated that accused Tapan, Ranga, Mubarak shot at the victim and other persons were with them. It has not been clarified as to who shot the injuries on the neck, abdomen and legs.
The death as it appears from the opinion, was due to the cumulative affect of all the injuries. The confessing accused stated that Mubarak shot him from the backside and then Tapan and Nazir shot at him.
This statement is taken along with the autopsy report creates doubt as at who is responsible for causing injury on the neck. The prosecution also failed to prove on whose gun shot injury the victim had actually died. This could be ascertained if the doctor who performed autopsy was examined.
The prosecution could not produce him as he was not available. As there is no conclusive evidence as regards, the principal assailant we are of the view that the ends of justice would be met if the sentence of the petitioners is commutated to imprisonment for life.
8. The petitions are, accordingly, dismissed with the modification of sentence. Since convicts have preferred regular petitions, jail petitions have rendered infructious.
