Appellate Division :
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Rajib Ullah and anr ……………..Petitioners
vs
State………………….
…………… Respondent*
Judgment
January 11th, 2015
Code of Criminal Procedure (V of 1898)
Section 561A
Scope of quashing-In a proceeding under section 561A of the Code praying for quashment of a judgment and order of conviction and sentence there is no scope for reassessment of’ the evidence on record. The inherent power conferred by section 561A of the Code may be exercised to quash a proceeding or even a conviction and sentence on conclusion of trial if the court concerned had no jurisdiction to hold the trial or the facts alleged against the accused do not constitute any criminal offence or the conviction has been based on no evidence or otherwise to secure the ends of justice. . ….. (7)
AKM Foyez, Advocate instructed by Md Nawab All, Advocate-on-Record-For the Petitioners.
None Represented-For the Respondent.
Judgment
Nazmun Ara Sultana J: This Criminal Petition for Leave to Appeal, at the instance of the convicted accused persons, is directed against the judgment and order dated 18-8-2011 passed by the High Court Division in Criminal Miscellaneous Case No. 21816 of 2009 making the rule absolute in part.
2. The above mentioned Criminal Miscellaneous Case No. 2 1816 of 2009 was started on an application under section 561A of the Code of Criminal Procedure filed by the present accused leave-petitioners praying for quashment of the judgment and order dated 1-7-2009 passed by the Druto Bichar Tribunal, Sylhet in Druto Bichar (Sessions) Case No.3 of 2008 arising out of GR Case No. 23 of 2006 corresponding to Chhatak Police Station Case No.4 dated 10-2-2006 convicting the accused-petitioners Rajibullah and Tazuddin Under sections 148/ 449/ 326/385/302/34 of the Penal Code and sentencing them to 3 years rigorous imprisonment with fine of Taka 2,000 in default; to suffer. 2 months rigorous imprisonment more under section 148 of the Penal Code, sentencing ‘them to 7 years rigorous imprisonment with fine of Taka 3,000 in default to suffer 4 months rigorous imprisonment more under section 449 of the Penal Code, 5 years rigorous imprisonment under section 385 of the Penal Code, 7 years rigorous imprisonment with fine of Taka 3,000, in default, to suffer 5 months rigorous imprisonment under section 326 of the Penal Code and also sentencing them to imprisonment for life with fine of Taka 10,000, in default, to suffer 6 months rigorous imprisonment under sections 302/34 of the Penal Code.
3. The prosecution case, in short, was that the informant Manik Mia was a grocer at Moinpur Bazar. The accused Rajibullah, Tazuddin, Jewel, Saiful, Salam, Nazir, Nizam and others used to put pressure on Manik Mia on demand of “Chanda” and also threatened him to kill his wife if their demand was not met. That all the accused persons forming unlawful assembly demanded Taka 10,000 from Manik Mia just before one week of the occurrence. That in the night following 7-2-2006 at about 2-00 am the accused persons started to untie the tin on the roof of the hut of Manik Mia and get that sound, Manik Mia came out of his hut and his wife deceased Rokeya Begum also came out and started hue and cry. Manik Mia saw the accused persons by his torch light. In that situation the accused persons attacked Manik Mia and his wife.
Accused Rajibullah inflicted a dao blow on the shoulder of Manik Mia, accused Tazuddin inflicted a dagger blow on the left elbow of Manik Mia causing injuries. Rokeya Begum, the wife of Manik Mia came forward to save her husband and then accused Rajibullah, Tazuddin and other accused persons started to assault her wife and dragged her under a jackfruit tree in their yard and assaulted her indiscriminately and twisted her neck. At their hue and cry the neighbouring people came and saw the occurrence. Both the informant Manik Mia and his wife Rokeya Begum were treated by doctor and ultimately Rokeya’ Begum succumbed to her injuries on 21-3-2006. The informant lodged an ejahar with Chatak Police Station against-the accused persons.
The police, after completion of investigation, submitted charge sheet against the accused persons under sections 449/ 323/ 325/ 326/307/ 385/ 302/ 34 of the Penal Code.
4. The trial court framed charges under sections 148/449/326/385/302/34 of the Penal Code against the present accused-leave-petitioner and others. Ultimately after completion of trial, the trial court convicted and sentenced these 2 accused petitioners only as aforesaid with a direction that all sentences would run concurrently. The trial court found the other 8 accused persons not guilty and acquitted them of all the charges by the judgment and order dated 1-7-2009.
5. These 2 convicted accused-petitioners though were in jail custody, but they failed to prefer any appeal against the impugned judgment and order within the prescribed time and as such they filed the above mentioned application under section 561A of the Code of Criminal Procedure praying for quashment of their conviction and sentence and obtained a rule. Ultimately a Division Bench of the High Court Division, after hearing the learned Counsel of both the sides and on examination of the evidence on record made that rule absolute in part quashing the conviction and sentences of the accused-petitioners under sections 148/449/ 385 and 326 of the Penal Code only. The High Court Division upheld the conviction and sentences of these accused-leave-petitioners under sections 302/34 of the Penal Code making observations thus:
“From a bare reading of the evidence of the eyewitnesses, namely, the PW 1 Manik Mia, the PW 7 Tofail Ahmed Tuhin and the PW 8 Md Tarke Ahmed together with the evidence of the PW 12 Dr Abul Mansur and the PW 13 Dr. Himangshu Lal’ Roy, it cannot be said by any stretch of imagination that it is a case of nolegal evidence. Assuming for the sake of argument that the evidence of those prosecution witnesses is unreliable or shaky or slender that cannot be a ground for quashing the conviction of the petitioners in this proceeding under section 561A of . the Code of Criminal Procedure .”
“……this court not being the court of appeal cannot sift or re-assess or re-evaluate the prosecution evidence on ‘record and arrived at its own findings.”
6. Mr AKM Foyez, the learned Advocate for the accused-leave-petitioners though has made some submissions, but he could not assail the above quoted observation and findings of the High Court Division.
7. We find no wrong or infirmity in the above observations and findings of the High Court Division. In a proceeding under section 561A of the Code of Criminal Procedure praying for quashment of a judgment and order of conviction and sentence there is no scope for reassessment of the evidence on record.
The inherent power conferred by section 561A of the Code of Criminal Procedure may be exercised to quash a proceeding. or even a conviction and sentence on conclusion of trial if the court concerned had no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence or the conviction has been based on no evidence or otherwise to secure the ends of justice.
8. We have examined the impugned judgment of the High Court Division and also that of the trial court. We also find no ground for quashing the conviction and sentence of the leave-petitioners under section 561A of the Code of Criminal Procedure.
We find no merit in this Criminal Petition for Leave to appeal and hence it is dismissed.
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Rajib Ullah and anr ……………..Petitioners
vs
State………………….
…………… Respondent*
Judgment
January 11th, 2015
Code of Criminal Procedure (V of 1898)
Section 561A
Scope of quashing-In a proceeding under section 561A of the Code praying for quashment of a judgment and order of conviction and sentence there is no scope for reassessment of’ the evidence on record. The inherent power conferred by section 561A of the Code may be exercised to quash a proceeding or even a conviction and sentence on conclusion of trial if the court concerned had no jurisdiction to hold the trial or the facts alleged against the accused do not constitute any criminal offence or the conviction has been based on no evidence or otherwise to secure the ends of justice. . ….. (7)
AKM Foyez, Advocate instructed by Md Nawab All, Advocate-on-Record-For the Petitioners.
None Represented-For the Respondent.
Judgment
Nazmun Ara Sultana J: This Criminal Petition for Leave to Appeal, at the instance of the convicted accused persons, is directed against the judgment and order dated 18-8-2011 passed by the High Court Division in Criminal Miscellaneous Case No. 21816 of 2009 making the rule absolute in part.
2. The above mentioned Criminal Miscellaneous Case No. 2 1816 of 2009 was started on an application under section 561A of the Code of Criminal Procedure filed by the present accused leave-petitioners praying for quashment of the judgment and order dated 1-7-2009 passed by the Druto Bichar Tribunal, Sylhet in Druto Bichar (Sessions) Case No.3 of 2008 arising out of GR Case No. 23 of 2006 corresponding to Chhatak Police Station Case No.4 dated 10-2-2006 convicting the accused-petitioners Rajibullah and Tazuddin Under sections 148/ 449/ 326/385/302/34 of the Penal Code and sentencing them to 3 years rigorous imprisonment with fine of Taka 2,000 in default; to suffer. 2 months rigorous imprisonment more under section 148 of the Penal Code, sentencing ‘them to 7 years rigorous imprisonment with fine of Taka 3,000 in default to suffer 4 months rigorous imprisonment more under section 449 of the Penal Code, 5 years rigorous imprisonment under section 385 of the Penal Code, 7 years rigorous imprisonment with fine of Taka 3,000, in default, to suffer 5 months rigorous imprisonment under section 326 of the Penal Code and also sentencing them to imprisonment for life with fine of Taka 10,000, in default, to suffer 6 months rigorous imprisonment under sections 302/34 of the Penal Code.
3. The prosecution case, in short, was that the informant Manik Mia was a grocer at Moinpur Bazar. The accused Rajibullah, Tazuddin, Jewel, Saiful, Salam, Nazir, Nizam and others used to put pressure on Manik Mia on demand of “Chanda” and also threatened him to kill his wife if their demand was not met. That all the accused persons forming unlawful assembly demanded Taka 10,000 from Manik Mia just before one week of the occurrence. That in the night following 7-2-2006 at about 2-00 am the accused persons started to untie the tin on the roof of the hut of Manik Mia and get that sound, Manik Mia came out of his hut and his wife deceased Rokeya Begum also came out and started hue and cry. Manik Mia saw the accused persons by his torch light. In that situation the accused persons attacked Manik Mia and his wife.
Accused Rajibullah inflicted a dao blow on the shoulder of Manik Mia, accused Tazuddin inflicted a dagger blow on the left elbow of Manik Mia causing injuries. Rokeya Begum, the wife of Manik Mia came forward to save her husband and then accused Rajibullah, Tazuddin and other accused persons started to assault her wife and dragged her under a jackfruit tree in their yard and assaulted her indiscriminately and twisted her neck. At their hue and cry the neighbouring people came and saw the occurrence. Both the informant Manik Mia and his wife Rokeya Begum were treated by doctor and ultimately Rokeya’ Begum succumbed to her injuries on 21-3-2006. The informant lodged an ejahar with Chatak Police Station against-the accused persons.
The police, after completion of investigation, submitted charge sheet against the accused persons under sections 449/ 323/ 325/ 326/307/ 385/ 302/ 34 of the Penal Code.
4. The trial court framed charges under sections 148/449/326/385/302/34 of the Penal Code against the present accused-leave-petitioner and others. Ultimately after completion of trial, the trial court convicted and sentenced these 2 accused petitioners only as aforesaid with a direction that all sentences would run concurrently. The trial court found the other 8 accused persons not guilty and acquitted them of all the charges by the judgment and order dated 1-7-2009.
5. These 2 convicted accused-petitioners though were in jail custody, but they failed to prefer any appeal against the impugned judgment and order within the prescribed time and as such they filed the above mentioned application under section 561A of the Code of Criminal Procedure praying for quashment of their conviction and sentence and obtained a rule. Ultimately a Division Bench of the High Court Division, after hearing the learned Counsel of both the sides and on examination of the evidence on record made that rule absolute in part quashing the conviction and sentences of the accused-petitioners under sections 148/449/ 385 and 326 of the Penal Code only. The High Court Division upheld the conviction and sentences of these accused-leave-petitioners under sections 302/34 of the Penal Code making observations thus:
“From a bare reading of the evidence of the eyewitnesses, namely, the PW 1 Manik Mia, the PW 7 Tofail Ahmed Tuhin and the PW 8 Md Tarke Ahmed together with the evidence of the PW 12 Dr Abul Mansur and the PW 13 Dr. Himangshu Lal’ Roy, it cannot be said by any stretch of imagination that it is a case of nolegal evidence. Assuming for the sake of argument that the evidence of those prosecution witnesses is unreliable or shaky or slender that cannot be a ground for quashing the conviction of the petitioners in this proceeding under section 561A of . the Code of Criminal Procedure .”
“……this court not being the court of appeal cannot sift or re-assess or re-evaluate the prosecution evidence on ‘record and arrived at its own findings.”
6. Mr AKM Foyez, the learned Advocate for the accused-leave-petitioners though has made some submissions, but he could not assail the above quoted observation and findings of the High Court Division.
7. We find no wrong or infirmity in the above observations and findings of the High Court Division. In a proceeding under section 561A of the Code of Criminal Procedure praying for quashment of a judgment and order of conviction and sentence there is no scope for reassessment of the evidence on record.
The inherent power conferred by section 561A of the Code of Criminal Procedure may be exercised to quash a proceeding. or even a conviction and sentence on conclusion of trial if the court concerned had no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence or the conviction has been based on no evidence or otherwise to secure the ends of justice.
8. We have examined the impugned judgment of the High Court Division and also that of the trial court. We also find no ground for quashing the conviction and sentence of the leave-petitioners under section 561A of the Code of Criminal Procedure.
We find no merit in this Criminal Petition for Leave to appeal and hence it is dismissed.
