(Criminal)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Md Shamsul Huda J
Momtaj Ali @ Babul…Appellant
vs
State ……..
……….Respondent*
Judgment
April 10th, 2012
Code of Criminal Procedure (V of 1898)
Section 154
FIR is the earlier version of the prosecution case and the statements made therein can be looked into with a view to find the prosecution story as a whole as set out in the earlier stage though it cannot be used in any way as substantive piece of evidence. And veracity of the testimony of its maker can very well be adjudged by looking at the material contradictions in his testimony from the FIR……….(15)
Code of Criminal Procedure (V of 1898)
Section 374
Justice would be best served if the sentence awarded against the appellant is altered into one for imprisonment for life with fine.
Considering the above state of evidence, it appears to us that the appellant could not be solely saddled with the “shot gun fire injury .on the deceased, Abdur Rakib” resulting his death, particularly when the other accused had also guns and they fired from their guns as well. In view of the above, it does not appear to us that the High Court Division took the right decision in affirming the sentence of death awarded against the appellant by the learned Sessions Judge. It further appears that the appellant is in death cell since 12-8-2002 and by now he has suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the context, we are of the view that justice would be best served if the sentence of awarded against the appellant is altered into one for imprisonment for life with fine …..(16)
Sarwar Ahmed, Advocate-For the Appellant.
Karunamoy Chakma, Deputy) Attorney-General-For the Respondent.
Judgment
Md Abdul Wahhab Miah J: This appeal, by the leave, has arisen out of the judgment and order dated the 5th and the 6th of July, 2004 passed by a Division Bench of the High Court Division in Death Reference No. 29 of 2002 heard analogously with Jail Appeal No. 425 of 2002 and Criminal Appeal Nos. 2471,2472 and 2542 of 2002 accepting the death reference and dismissing Jail Appeal No. 425 of 2002 and Criminal Appeal No. 2471 of 2002 so far as it relates to the appellant and thus affirming the sentence of death awarded against him by the learned Sessions Judge, Sylhet in Sessions Case No. 86 of 2001.
2. The appellant, along with 8(eight) others, were put on trial before the Sessions Judge, Sylhet in the above mentioned Sessions case and was charged under Sections 148/458/ 302/34 and 302/149 of the Penal Code. Three accused, namely: Nazrul, Monir Mia and Mazibur @ Majibul were separately charged under Section 326/34 of the Penal Code. The appeilant pleaded not guilty and claimed to be tried.
3. The case of the prosecution as stated by PW I, informant, Abdul Gani (hereinafter referred to as the PW) is that in the night of 26-5-1999 after taking meal, he and the other inmates of his house went to bed. At about 2-30 am in the night, the PW along with other inmates of the house woke up from sleep hearing the sound of firing and the hue and cry of Abdul Shafi and switched on the electric light of his room. Abdur Rakib, his wife-Jutsna Begum, mother of the PW, Gulapjan Bibi, daughter-Ayesha Begum, nephew-Abul Mansur, son-Abul Fazal and brother’s wife Nur Banu took shelter in the southern room of his house. At that time, the PW pushed his brother, Abdur Rakib, in the Baithakkhana which is adjacent to the southern room. Abul Kashem took shelter in the room of the PW, the PW also pushed Abul Bashar along with Abdur Rakib in the Baithakkhana. At that time, Gulapjan Bibi, mother of the PW and his daughter Ayesha Begum closed the door of the partition. Accused Babul (hereinafter referred to as the appellant) entered into the room by breaking the door by lathi and kicked his mother. Accused Talebul Ayesha Begum and she fell down. At that time, appellant, Nazrul and accused Monir had gun, Chinese axe and dao respectively. The appellant opened the door of the southern room and one accused broke the ventilator of Baithakkhana by shooting from the Verandah, when Abdur Rakib, brother of the PW came to the son them room from the Baithakkhana out of fear of his life, Babul shot him which struck on his chest and he fell down on the ground. When Neharunnessa, wife of the PW went forward Talebul shot her which struck on the right side of her face and she fell down. Accused Mazibul gave a Chinese axe blow on the body of the wife of the PW. The appellant, Talebul, Mazibul, Nazrul, Monir dragged Abdur Rakib in the northern room and then the appellant shot him at his belly. Mazibul, Talebul and Nazrul chopped Rakib with Chinese axe at his legs and hands, Monir also chopped Rakib with dao. The accused on being sure about the death of Abdur Rakib went away from the room and then the PW came out from his room and raised hue and cry. On going to the northern room the PW found his brother Abdur Rakib lying on the bed unconscious with bleeding injuries. The PW went to the kitchen and found that there was burgle (wmua) in the northem room. Neharunnessa and Abdur Rakib died at the place of occurrence. The PW took his another brother Shafique, who sustained injuries, to Osmani Medical College and Hospital and got him admitted there. Thereafter, the PW went to the police station and lodged the First Information Report (FIR). The PW could identify the accused in the light of electricity. After lodging the FIR with police station the PW came to his house and heard from Abul Kashem, Abul Bashar, Abul Fazal, his brothers’ wives Nurbanu and Jutsna, daughter Ayesha Begum, nephew-Abul Madur that accused Hannan Milon and Shafi who were standing in the verandah told to kill the injured persons and they all recognized them. in the light of electricity. After the lodging of the FIR the police came, prepared the inquest report of the dead bodies and sent the dead bodies to morgue for post mortem, the dead bodies were buried after Asr prayer. Deceased Abdur Rakib was the ‘Awf‡hvM” of the Second Subordinate Judge’s Court (place of work not mentioned in the deposition of the PW). Many cases were pending against the accused in court and they asked the deceased to help them in those cases, and as he did not help the accused as desired by them they took recourse to the occurrence.
4. To substantiate the charges, the prosecution adduced 19 witnesses; of them PWs 8, 9, 10, 11 were tendered. The defence cross-examined the prosecution witnesses except PWs 9-11. The defence case of this appellant as it appears from the trend of cross examination of the prosecution witnesses was that he was innocent. Abdur Rakib and Neharunnesa were killed by unknown dacoits and taking the advantage of their killing, the appellant was implicated in the case falsely.
5. On conclusion of trial, the learned Sessions Judge by his judgment and order dated 12-8-2002 found the appellant and other co-accused, namely: Talebul, Mazibur @ Mazibul, NazruI and Monir guilty under Sections 302/34 of the Penal Code and sentenced each of them to death. The learned Sessions Judge also found the appellant and the above’ mentioned accused guilty under Section 458 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Taka 2,000 each in default to suffer rigorous imprisonment for l(one) year more. The learned Sessions Judge also found co-accused: Shafique, Hannan and Monir guilty under Sections 302/109 of the Penal Code and sentence each of them to suffer imprisonment for life and also to pay a fine of Taka 5,000 each in default to suffer rigorous imprisonment for 2(two) years more. The learned Sessions Judge acquitted the appellant and the other accused of the charges brought against them under Section 148 of the Penal Code. He acquitted the appellant and the other respective accused of the charges brought against them under the other Sections of the Penal Code.
6. The Sessions Judge submitted the proceedings of the case to the High Court Division under Section 374 of the Code of Criminal Procedure which was registered as Death Reference No. 29 of 2002. The appellant filed Jail Appeal No. 425 of 2002 along with other convicts: Nazrul, Talebul and Monir Mia and Criminal Appeal No. 2471 of 2002 along with the other convicts: Talebul and Nazrul: Co-convict, Monir filed Criminal Appeal No. 2472 of 2002 and convicts: Shafiqur Rahman @ Shafique and Abdul Mannan filed Criminal Appeal No. 2542 of 2002. A Division Bench of the High Court Division after hearing the death reference along with the appeals by the impugned judgment and order accepted the death reference so far as it relates to the appellant and dismissed Jail Appeal No. 425 of 2002 and Criminal Appeal No. 4721 of 2002 in respect of him. The High Court Division rejected the death reference so far as it relates to convict Muzibur @ Mazibul and altered the sentence of death to one for imprisonment for life and also imposed a fine of Taka 1,000 in default to suffer rigorous imprisonment for 6(six) months more. The High Court Division rejected the death reference in respect of convict appellants, Nazrul and Talebul and allowed the jail appeal filed by Talebul and Monir and set aside the judgment and order of conviction and sentence passed by the learned Sessions Judge in respect of the said two convicts and they were acquitted of the charges brought against them. The High Court Division allowed Criminal Appeal No. 2471 of 2002 in part and acquitted convicts: Nazrul and Talebul of the charges brought against them. The High Court Division allowed Criminal Appeal Nos. 2472 of 2002 and 2542 of 2002 and acquitted appellants Monir, Shafiqur Rahman @ Shafique and Abdul Hannan of the respective charges brought against them.
7. Being aggrieved by and dissatisfied with the impugned judgment and order, the appellant filed Jail Petition No. 21 of 2004 from Sylhet central jail, Sylhet and this Division gave leave on 25-5-2006 to consider the question of sentence only on the submissions made by the learned Advocate for the appellant as under:
“The learned Advocate submits that the appeal of Nazrul and Talcbul standing on the same footing was allowed and they were found not guilty and acquitted. The death sentence of Majibul in Death Reference No. 29 of 2002 was altered to one of imprisonment for life. Jail Appeal No. 425 of 2002 preferred by Monir Miah and others was allowed in part and Monir was found not guilty md accordingly acquitted. But the present petitioner stands in the same footing but his case was not properly considered by the High Court Division. In such view of the matter and the materials on record, the High Court Division committed an error of law in affirming sentence of death imposed upon the petitioner. As a result there has been miscarriage of justice.
8. The submissions merit consideration.
Leave is according granted only on the question of sentence.”
9. Mr Sarwar Ahmed learned Advocate, appearing for the appellant made similar submissions as noted in the leave granting order.
10. Mr Karunamoy Chakma, learned Deputy Attorney-General, however, supported the impugned judgment and order.
11. As leave has been granted only on the question of sentence, we are not called upon to sift the entire evidence adduced by the prosecution. We shall, however, refer to some portions of the evidence in order to decide whether the High Court Division was justified in affirming the sentence of death passed against the appellant by the learned Sessions Judge while it rejected the death reference in respect of Mazibur @ Mazibul and altering the sentence into one for imprisonment for life and rejected the reference in respect of Talebul and Nazrul and acquitted them of the charges brought against them.
12. In the instant case, the FIR was lodged by PW 1 claiming himself to be an eye witness. Although on the FIR, the name of the appellant and four others: Talebul, Mazibul, Monir Mia and Nazrul were mentioned, no specific overt act such as, shooting from the gun at the chest and the belly of deceased Rakib by the appellant was alleged. In the FIR, the allegations were made against all the accused in a lump that all the accused first attacked the informant’s (PW 1) brother, Shafique with sharp cutting weapons causing injuries on his shoulder and thigh by entering into his room by opening the latch of the door. In the FIR, it was further alleged that all the accused entered into the room of Shafique through burgle (wmua) at the north-west corner of the room of the informant and that the accused shot fire from the gun at Rakib indiscriminately (G‡jvcv_vix ¸wj) and also at the wife of the informant when she tried to save Rakib. In the FIR, even it was not stated which of the accused had the gun in his hand. But the informant while deposing in Court as PW 1 gave different version of the occurrence as apparent from the prosecution case stated hereinbefore as he stated in his examination-in-chief that it is the appellant who fired shots from a gun at the chest of deceased Abdur Rakib and then at his belly. Of course, this version of PW 1 was sought to be corroborated by other PWs, namely:
(To be continued)
PWs 2, 3, 4 who are his sons and PW 5 who is the wife of deceased, Abdur Rakib. These witnesses claimed that they were present at the house at the time of the occurrence and saw the occurrence in the light of electricity. Had they seen the appellant to shoot at the deceased as deposed by them in Court, they would have definitely stated so to PW 1 and in that case PW 1 would have stated the same in the FIR. From the deposition of PW 1 it is also apparent that besides the appellant other accused had also guns and one of them by shooting from his gun broke the ventilator of the Baithakkhana.
13. From the post-mortem report it appears that the deceased sustained the following injuries:
“(1) Multiple (30) punctured wound at right 4-7th intercostal space with area involving 3″ x 2” x upto chest wall depth.
(2) Oval penetrating wound at left 7-10th inter-costal space on mid axillary line 2-1/2″ in diameter upto chest cavity depth.
(3) Penetrating wound at left sub-clavicular region 2-1/2″ X 2″ x chest cavity depth.
(4) Incised wound (deep) at left knee 3″ x 1-2/1″ x3″.
(5) Multiple (12 punctured would middle of rt. arm 1/3 diameter up to skin muscle depth.
(6) Multiple penetrating wound (2) at scalp ¼, indiameter upto scalp depth and ten punctured would below knee ¼ indiameter upto variable depth in skin and muscle.”
14. The Doctor opined that death was caused “due to shock and haemorrhage as a result of injury to the left lung, splint stomach which were ante mortem and homicidal in nature caused by shot gun fire injury.” The post mortem report shows that besides the “shot gun” fire injuries the deceased sustained other injuries.
15. FIR is the earlier version of the prosecution case and the statements made therein can be looked into with a view to find the prosecution story as a whole as set out in the earlier stage though it cannot be used in any way as substantive piece of evidence. And veracity of the testimony of its maker can very well be adjudged by looking at the material contradictions in his testimony from the FIR. Here, in the instant case as pointed out hereinbefore, the informant, an eye witness to the occurrence, though claimed to have seen the occurrence and recognized the accused including the appellant in the light of the electricity did ‘not attribute any overt act of shooting accused wise, but while he deposed he did so and this creates a prima-facie doubt as to the fact whether the appellant fired twice at the deceased Rakib as alleged by PW 1 and as sought to be corroborated by the other witnesses. It is also pertinent to state that the High Court Division disbelieved the testimony of PWs 1, 2, 3,4 and 5 that Talebul shot at the mouth of deceased Neharunnesa, wife of PW 1 and accordingly, acquitted him of the charges brought against him with the finding that “So, the ocular evidence coming from the mouths of PWs 1,2,3,4 and 5 in respect of gun shot by Talebul stood totally nullified by the evidence of Doctor PW12.”
16. Considering the above state of evidence, it appears to us that the appellant could not be solely saddled with the “shot gun fire injury on the deceased, Abdur Rakib” resulting his death, particularly when the other accused also had guns and they fired from their guns as well. In view of the above, it does not appear to us that the High Court Division took the right decision in affirming the sentence of death awarded against the appellant by the learned Sessions Judge. It further appears that the appellant is in death cell since 12-8-2002 and by now he has suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the context, we are of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine.
17. Accordingly, this appeal is allowed. The sentence of death awarded against the appellant by the learned Sessions Judge as affirmed by the High Court Division is altered into one for imprisonment for life and he is also to pay a fine of Taka 10,000 in default to suffer rigorous imprisonment for 6(six) months more.
The concerned Jail Authority is directed to shift the appellant to the convict wards from the death cell.
