The New Nation - Internet Edition

APPELLATE DIVISION

(Criminal)

Md. Ruhul Amin-C.J.

Mohammad Fazlul Karim-J.

M. M. Ruhul Amin-J.

CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 233 OF 2005

(From the Judgment and Order dated July 18, 2004 and July 19, 2004 passed by the High Court Division in Death Reference No. 64 of 2002 with Jail Appeal No. 666 of 2002)

The State ………Petitioner.

Vs.

Md. Mukul alias Swapan .. ….Respondent.

For the Petitioner : Mr. Mohammad Ali Akonda, Deputy, Attorney General instructed by Mr. Zainul Abedin, Advocate-on-Record.

The Respondent : Not represented.

Judgment: August 12, 2007

Penal Code, 1860-

Sections 302/333/224/34

When charge not proved beyond doubt by consistent and reliable evidence, conviction and sentence cannot be sustained.

Withholding of material evidence raises adverse presumption against the prosecution-

The allegations are that while the raiding party consisting of police personnels including the victim S.I Amzad went to arrest accused Mokul @ Swapan in the village in connection of a dacoity case during which 'deceased S.I Amzad received fatal injury in the hands of accused Mukul and thereafter S.I Amzad died in the Rajshahi Medical College Hospital. The trial Court convicted and sentenced accused Mukul to death penalty. The High Court Division rejected the Death Reference and acquitted the convict on benefit of doubt upon finding no reliable evidence on record and upon the finding that the deceased might have been injured elsewhere which the apex court held perfectly justified.

The High Court Division on consideration of the materials on record observed "It appears from the record that the Investigating Officer did not file the G.D. Entry dated 13.5.2002 which raises presumption under section 114(g) of the Evidence Act against the prosecution that had the G.D. Entry been filed it would go against the prosecution. Over and above, the learned D.A.G. could not offer any explanation for, non filing of the G.D. Entry and also could not controvert the argument of the learned State Defence Lawyer regarding leaving of the Police Station by the police personnel for arrest of a dacoit without any command certificate and also in plain dress and without any arms whatsoever.' The prosecution also could not offer any explanation regarding non-examination of S.I. Abdul Bari, vital witness in the case. All these facts create a strong doubt about the truth of the prosecution story. It may be mentioned that it is in the evidence, of the members of the raiding party that they did not raise any hue and cry at the time of occurrence but they have stated in their deposition that condemned prisoner Mukul was caught hold by the deceased and Mukul raised hue and cry, as a result of which other accused persons rushed to the place of occurrence. It is therefore, significant that none of the witnesses from this Village saw the injured S.I. Amzad at the place of occurrence or even heard about the occurrence. There is no evidence on record that anybody saw the raiding party at Chowgram village. The only local witness, namely P. W.7, allegedly saw the other accused persons assaulting village police with lathi and he did not see any police officer or victim Amzad. It is also important to note that according to the prosecution story injured Amzad was brought from the place of occurrence to Singra Thana Health Complex by an engine-driven tempo but curiously enough the tempo driver has not been examined in this case and none of the locality saw the victim at the place of occurrence or even at the place of occurrence village. Thus, the natural presumption is that the victim might have received the injury elsewhere and the command certificate has been intentionally withheld by the prosecution. …….(Para 10)

On consideration of the materials on record we are of the view that the High Court Division was quite correct in entertaining doubt about the prosecution case and thereupon acquitting the respondent on the finding that the prosecution failed to prove its case beyond reasonable doubt. The learned Deputy Attorney-General could not point out that the finding made by the High Court Division to the evidence on contrary to the materials on record or that finding as regards the nature and quality of the prosecution case is contrary to the evidence on record or upon incorrect consideration of the evidence brought on record by the prosecution …………..(Para 13)

JUDGMENT

MD. RUHUL AMIN-C.J: This petition for leave to appeal has been filed against the judgment dated July 18, 2004 and July 19, 2004 of a Division Bench of the High Court Division in Death Reference No. 64 of 2002 (heard with Jail Appeal No. 666 of 2002) rejecting the Death Reference and thereupon, allowing the jail appeal.

2. The death reference was made by the learned Sessions Judge, Natore upon convicting the respondent under sections 302/333/224 of the Penal Code and sentencing him to death by the judgment and order dated November 30, 2002 in Sessions Case No. 128 of 2002.

3. It appears that no separate sentence was passed under sections 333/224 of the Penal Code since maximum sentence was passed under section 302 of the Penal Code.

3. The learned Sessions Judge, Natore by the same judgment acquitted 4 other accuseds of the charge levelled under sections 302/353/333/224 read with section 34 of the Penal Code.

5. The 5 (five) accuseds were put on trial to answer the charges under sections 302/353/333/224 read with section 34 of the Penal Code.

6. The prosecution case as narrated by the P.W.I, the informant, is that the incident took place on May 13, 2002 at about 19.30 hours, that he being directed by Officer-in-Charge of Singra Police Station left the Police Station along with S.I. Amzad Hossain and three other Constables to arrest accused Mukul alias Swapan of a dacoity case and went to Chow gram village and looked there for Mukul alias Swapan at different places, that at one stage they came to know that the said dacoit was standing on a culvert over a village road by the side of Natore-Bogra Highway, that one local Dafader and 2 Chowkidars also joined with them and they proceeded for the place of occurrence. being divided in 3 (three) groups and proceeded to the said place from 3 directions, that the accused Mukul having had received the signal about presence of police in the area tried to flee away and at that time deceased S.I. Amzad caught hold of him and thereupon accused Mukul raised hue and cry for help and thereupon the other accused persons and the relatives of Mukul proceeded towards the place of occurrence with lathi, etc. and tried to snatch away the accused Mukul from deceased Amzad and that in the course of scuffling Mukul dealt blows by sword on the right side of the chest of S.I. Amzad and caused fatal injury and SI. Amzad fell down on the ground and the assailants fled away towards the east from the place of occurrence, that the informant and his companions chased Mukul but he could not be apprehended because of darkness, that S.I. Amzad Hossain was taken to Singra Thana Health Complex by a 'Tempo and therefrom he was taken to the Rajshahi Medical College for better treatment by S.I. Abdul Bari, Constable Bari and Constable Nurul Islam and the victim died there.

7. On the aforesaid incident S.I. Md. Obaidur Rahman P.W.I lodged the ejahar on 13.5.2002 at about 23.45 hours. The incident took place on 135,2002 at 19.30 hours.

8. On completion of investigation charge sheet was filed against 5 accused persons. At the time of trial charge was framed against the respondent and 4 others under different sections including 302 of the Penal Code.

9. The learned Sessions Judge on conclusion of the trial convicted and sentenced the respondent as stated hereinbefore and acquitted the 4 accuseds.

10. The High Court Division on consideration of the materials on record observed "It appears from the record that the Investigating Officer did not file the GD, Entry dated 13.5.2002 which raises presumption under section 114(g) of the Evidence Act against the prosecution. that had the GD. Entry been filed it would go against the prosecution. Over and above, the learned D.A.G. could not offer any explanation for non filing of the GD. Entry and also could not controvert the argument of the learned State Defence Lawyer regarding leaving of the Police Station by the police personnel for arrest of a dacoit without any command certificate and also in plain dress and without any arms whatsoever. The prosecution also could not offer any explanation regarding non examination of S.I. Abdul Bari, vital witness in the case. All these facts create a strong doubt about the truth of the prosecution story. It may be mentioned that it is in the evidence of the members of the raiding party that they did not raise any hue and cry at the time of occurrence but they have stated in their deposition that condemned prisoner Mukul was caught hold by the deceased and Mukul raised hue and cry, as a result of which other accused persons rushed to the place of occurrence. It is therefore, significant that none of the witnesses from the P.O. Village saw the injured S.I. Amzad at the place of occurrence or even heard about the occurrence. There is no evidence on record that anybody saw the raiding party at Chowgram village. The only local witness, namely P.W.7, allegedly saw the other accused persons assaulting village police with lathi and he did not see any police officer or victim Amzad. It is also important to note that according to the prosecution story injured Amzad was brought from the place of occurrence to Singra Thana Health Complex by an engine-driven tempo but curiously enough the tempo driver has not been examined in this case and no one of the locality saw the victim at the place of occurrence or even at the place of occurrence village. Thus, the natural presumption is that the victim might have received the injury elsewhere and the command certificate has been intentionally withheld in the prosecution.

The upshot of the above discussion is that the prosecution has not been able to prove its case beyond reasonable doubt.

11. On the aforesaid findings and decisions, the High Court Division rejected, the Death Reference and allowed the Jail Appeal filed by the condemned prisoner and thereupon acquitted the respondent herein of the charge levelled against him.

12. We have heard the learned Deputy Attorney-General and perused the materials on record.

13. On consideration of the materials on record we are of the view that the High Court Division was quite correct in entertaining doubt about the prosecution case and thereupon acquitting the respondent on the finding that the prosecution failed to prove its case beyond reasonable doubt. The learned Deputy Attorney-General could not point out that the finding made by the High Court Division is contrary to the materials on record or that finding as regards the nature and quality of the prosecution case is contrary, to the evidence on record or upon, incorrect consideration of the evidence brought on record by the prosecution.

14. In that view of the matter we find no substance in the petition.

15. Accordingly, the petition is dismissed.