Appellate Division (Criminal) :
Md Abdul Wahhab Miah J
Md Imman Ali
Hasan Foez Siddique J
Judgment
January 19th, 2015.
Jahirul Haque and another…..
……………Petitioners
Vs
State…………..Respondent
Penal Code (XLV of 1860) Section 394
Considering the prevailing circumstances, particularly, the petitioners were assaulted mercilessly and that they snatched away cash and kinds worth of Taka 4,500 only and that in the mean time they have crossed the age of 40 years, ends of justice would be met if their sentence is reduced to the period which they have already served out, i.e. two years seven months.
Md Khurshid Khan, Advocate instructed by Md Zahirul Islam, Advocate-on-Record-For the Petitioners.
Biswajit Deb Nath, Deputy Attorney-General (appeared with the leave of the Court)-For the Respondent.
Judgment
Hasan Foez Siddique J: Delay of 24 days is condoned.
2. This petition for leave to appeal is directed against the judgment and order dated 15-12-2011 passed by the High Court Division in Criminal Appeal No. 1780 of 2004 affirming those ‘dated 20-4-2004 passed by Assistant Sessions Judge, 3rd Court, Comilla in sessions Case No. 182 of 2001 arising out of GR No. 43 of 2001 Corresponding to Burichang PS Case No. 10 dated 19-4-2001 convicting the petitioners under section 394 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for 10(ten) years and pay a fine of Taka 1,000 in default to suffer rigorous imprisonment for 6(six) months more.
3. The relevant facts, for the disposal of the petition, in short, are that at about 3-00 pm on 18-4-2001 PW 4 Nurjahan left Dhaka for Burichang along with her elder son, Imran and daughter, Asha Akhter. They reached at Burichang Bazar at about 10-15 pm wherefrom they hired a rickshaw to go to her paternal house. At about 11-10 pm when their rickshaw reached at the eastern side of Jurain Bridge, all on a sudden, 2/3 miscreants being armed with dao, cheni etc. compelled to stop their rickshaw and snatched away Taka 2,000 and some wearing apparels, worth of Taka 2,500 from PW 4. The miscreants fled away seeing police patrol van. The police, with the help of the villagers, caught hold the convict-petitioners Billal and Jhirul from a nearby pond. PW 4 recognized both the petitioners. The villagers assaulted the convict petitioners, consequently, both of them were injured and left leg of accused Billal was broken.
4. The Investigating Officer, holding investigation, submitted charge-sheet against the convict-petitioners and another under section 394 of the Penal Code. The case was sent in the third Court of Assistant Sessions Judge, Comilla for holding trial, who framed charge against the petitioners and another under section 394 of the Penal Code.
5. The prosecution examined 7 witnesses and defence examined none.
6. After examination of the accused petitioners under section 342 of the Code of Criminal Procedure and hearing arguments, the trial Court convicted the petitioners as aforesaid. They preferred appeal in the High Court Division which was dismissed. Then, they filed this petition.
7. Mr Md Khurshid Alam Khan, learned Counsel appearing on behalf of the petitioners, submits that admittedly the petitioners were severely injured and the people, assaulting the petitioner Billal, broke his left leg for commission of such occurrence. He further submits that out of 10 years sentence the petitioners have suffered two years seven months for the charge of snatching away cash and kind worth of Taka 4,500. He submits that sentence is at any rate too severe and that both of them, in the meantime, crossed the age of 40 years, in such view of the matter, their sentences may be reduced to the period which they have already served out.
8. Mr Biswajit Deb Nath, learned Deputy Attorney General, submits that the prosecution has been able to prove the ingredients of section 394 of the Penal Code against petitioners beyond all reasonable doubt, there is no error of law in the judgment and order of conviction and sentence passed by the Courts below.
The charge against the petitioners was that they snatched away Taka 2,000 and some wearing apparels worth of Taka 2,500 from PW 4. It appears from the evidence and materials on record that the police and the local people caught hold the petitioners subsequently after the occurrence and assaulted them severely, consequently, left leg of petitioner Billal was broken. In the meantime, out of the total sentence they have served out two years seven months.
Considering the prevailing circumstances, particularly the faet that the petitioners were assaulted mercilessly and that they snatched away cash and kinds of Taka 4,500 only and that in the mean time they have crossed the age of 40 years, we are of the view that the ends of justice would be met if their sentence is reduced to the period which they have already served out.
Accordingly, the petition is dismissed and order of conviction is upheld subject to the modification that the substantive sentence of the petitioners is reduced to the period already undergone by them. The respondent is directed to release them from the custody at once.
Md Abdul Wahhab Miah J
Md Imman Ali
Hasan Foez Siddique J
Judgment
January 19th, 2015.
Jahirul Haque and another…..
……………Petitioners
Vs
State…………..Respondent
Penal Code (XLV of 1860) Section 394
Considering the prevailing circumstances, particularly, the petitioners were assaulted mercilessly and that they snatched away cash and kinds worth of Taka 4,500 only and that in the mean time they have crossed the age of 40 years, ends of justice would be met if their sentence is reduced to the period which they have already served out, i.e. two years seven months.
Md Khurshid Khan, Advocate instructed by Md Zahirul Islam, Advocate-on-Record-For the Petitioners.
Biswajit Deb Nath, Deputy Attorney-General (appeared with the leave of the Court)-For the Respondent.
Judgment
Hasan Foez Siddique J: Delay of 24 days is condoned.
2. This petition for leave to appeal is directed against the judgment and order dated 15-12-2011 passed by the High Court Division in Criminal Appeal No. 1780 of 2004 affirming those ‘dated 20-4-2004 passed by Assistant Sessions Judge, 3rd Court, Comilla in sessions Case No. 182 of 2001 arising out of GR No. 43 of 2001 Corresponding to Burichang PS Case No. 10 dated 19-4-2001 convicting the petitioners under section 394 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for 10(ten) years and pay a fine of Taka 1,000 in default to suffer rigorous imprisonment for 6(six) months more.
3. The relevant facts, for the disposal of the petition, in short, are that at about 3-00 pm on 18-4-2001 PW 4 Nurjahan left Dhaka for Burichang along with her elder son, Imran and daughter, Asha Akhter. They reached at Burichang Bazar at about 10-15 pm wherefrom they hired a rickshaw to go to her paternal house. At about 11-10 pm when their rickshaw reached at the eastern side of Jurain Bridge, all on a sudden, 2/3 miscreants being armed with dao, cheni etc. compelled to stop their rickshaw and snatched away Taka 2,000 and some wearing apparels, worth of Taka 2,500 from PW 4. The miscreants fled away seeing police patrol van. The police, with the help of the villagers, caught hold the convict-petitioners Billal and Jhirul from a nearby pond. PW 4 recognized both the petitioners. The villagers assaulted the convict petitioners, consequently, both of them were injured and left leg of accused Billal was broken.
4. The Investigating Officer, holding investigation, submitted charge-sheet against the convict-petitioners and another under section 394 of the Penal Code. The case was sent in the third Court of Assistant Sessions Judge, Comilla for holding trial, who framed charge against the petitioners and another under section 394 of the Penal Code.
5. The prosecution examined 7 witnesses and defence examined none.
6. After examination of the accused petitioners under section 342 of the Code of Criminal Procedure and hearing arguments, the trial Court convicted the petitioners as aforesaid. They preferred appeal in the High Court Division which was dismissed. Then, they filed this petition.
7. Mr Md Khurshid Alam Khan, learned Counsel appearing on behalf of the petitioners, submits that admittedly the petitioners were severely injured and the people, assaulting the petitioner Billal, broke his left leg for commission of such occurrence. He further submits that out of 10 years sentence the petitioners have suffered two years seven months for the charge of snatching away cash and kind worth of Taka 4,500. He submits that sentence is at any rate too severe and that both of them, in the meantime, crossed the age of 40 years, in such view of the matter, their sentences may be reduced to the period which they have already served out.
8. Mr Biswajit Deb Nath, learned Deputy Attorney General, submits that the prosecution has been able to prove the ingredients of section 394 of the Penal Code against petitioners beyond all reasonable doubt, there is no error of law in the judgment and order of conviction and sentence passed by the Courts below.
The charge against the petitioners was that they snatched away Taka 2,000 and some wearing apparels worth of Taka 2,500 from PW 4. It appears from the evidence and materials on record that the police and the local people caught hold the petitioners subsequently after the occurrence and assaulted them severely, consequently, left leg of petitioner Billal was broken. In the meantime, out of the total sentence they have served out two years seven months.
Considering the prevailing circumstances, particularly the faet that the petitioners were assaulted mercilessly and that they snatched away cash and kinds of Taka 4,500 only and that in the mean time they have crossed the age of 40 years, we are of the view that the ends of justice would be met if their sentence is reduced to the period which they have already served out.
Accordingly, the petition is dismissed and order of conviction is upheld subject to the modification that the substantive sentence of the petitioners is reduced to the period already undergone by them. The respondent is directed to release them from the custody at once.
