Azadur Rahman Raza vs. Respondent: State

Jun 26, 2022

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Criminal Appeal Nos. 34 of 2006 and 272 of 2006

Decided On: 03.12.2007

Appellants: Azadur Rahman Raza
Vs.
Respondent: State

**Hon’ble Judges:**Nozrul Islam Chowdhury and Md. Ataur Rahman Khan, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Md. Ozair Farooq, S.M. Masud Hossain Dolon, Advocates and A.S. Md. Abdul Mobin, Advocate

For Respondents/Defendant: Sarkar Tahmeena Begum and Md. Abdul Khaleque, Assistant Attorney Generals

Subject: Criminal Law

Catch Words

Mentioned IN

**Acts/Rules/Orders:**Code of Criminal Procedure, 1898 (CrPC) - Section 151; Code of Criminal Procedure, 1898 (CrPC) - Section 161; Code of Criminal Procedure, 1898 (CrPC) - Section 162; Code of Criminal Procedure, 1898 (CrPC) - Section 417; Code of Criminal Procedure, 1898 (CrPC) - Section 561A; Evidence Act, 1872 - Section 145, Evidence Act, 1872 - Section 155; Penal Code, 1860 - Section 114, Penal Code, 1860 - Section 147, Penal Code, 1860 - Section 148, Penal Code, 1860 - Section 149, Penal Code, 1860 - Section 302, Penal Code, 1860 - Section 307, Penal Code, 1860 - Section 323, Penal Code, 1860 - Section 326, Penal Code, 1860 - Section 34, Penal Code, 1860 - Section 436, Penal Code, 1860 - Section 447

Citing Reference:

Mentioned

 

 3

Relied On

 

 1

Case Note:
Criminal - Legality of Conviction - Sections 34 and 302 of Penal Code - Whether impugned order convicting five accused persons under Section 302 r/w 34 of Penal Code sentencing each of them there under to imprisonment for life with a fine, while six accused persons have been acquitted from charges under Sections 148,149 and 302 of Penal Code? - Held, tribunal upon assessment of evidence, in his own way, has arrived at a finding to effect that PWs 2, 3, 6, 7 and 8 definitely had gone to place of occurrence after accused persons had retreated from scene, such finding has been based on alleged contradictions available in depositions of those PWs 2, 3, 6, 7 and 8 therefore Tribunal had discarded their testimony as a whole - Having gone through FIR, this court find no inference is deducible there from with respect to testimony of those witnesses - Under facts and circumstances established in case, warrant a conviction under Section 147 of Penal Code against appellant in view of his participation with an unlawful assembly of 12 accused persons at scene of occurrence, where some others have been charged and convicted with different offences - But insofar appellant R is concerned this court do not find any material to sustain his conviction under Sections 302 r/w 34 of Penal Code - Facts proved in present case, warrant conviction against appellant R under Sections 147 and 323 of Penal Code for dealing fists and blows on persons of victim when he fell down on ground sustaining gunshot injury - Therefore, appellant is found guilty under Section 323 and 147 of Penal Code - With modification of conviction and sentence, Criminal Appeal is hereby allowed in part and impugned judgment and order of conviction and sentence does hereby stand modified, so far as it relates to appellant R only - Turning to other appeal against acquittal this court find that facts proved by PWs 1 and 8 against acquitted respondents in Criminal Appeal, Tribunal committed illegality in relying on same evidence for one set of accused persons while discarding testimony thereof in respect of other set of accused persons - It is further found that Tribunal has committed an illegality in entertaining attitude of appreciation of evidence as manifested in impugned judgment, more particularly when this court have also noticed that finding of facts arrived at by Tribunal in acquitting those accused persons are contrary to evidence on record, therefore perverse, as such Criminal Appeal is also allowed and impugned judgment and order of acquittal insofar as it relates to accused respondent Nos. 1 to 6 are hereby set aside and impugned judgment and order of acquittal in respect of respondent Nos. 1 to 6 is thereby reversed into an order of conviction under Sections 147 and 323 of Penal Code, on same reasons of both fact and laws as assigned in connected appeal, sentencing each of respondents to suffer rigorous imprisonment for 2 years and 1 year under both counts respectively with a direction to run both sentences consecutively and also to pay fine - Tribunal is directed to secure arrest of respondent Nos. 1 to 6 in relevant Criminal Appeal for bringing them to justice for purpose of serving out sentences imposed upon each of them. [41],[42],[44], [46],[47],[48], [50],[51],[52]

JUDGMENT

Nozrul Islam Chowdhury, J.

  1. These two Appeals are directed against the self same judgment and order dated December 19, 2005 passed by the Druta Bichar Tribunal, Sylhet in Druta Bichar (Sessions) Case No. 26 of 2005, convicting five accused persons under section 302 read with section 34 of the Penal Code sentencing each of them thereunder to imprisonment for life with a fine of Taka 10,000 in default to suffer rigorous imprisonment for 1 (one) year, while six accused persons have been acquitted from the charges under sections 148/149/302 of the Penal Code. One out of said five convicts, as aforesaid, preferred Criminal Appeal No. 34 of 2006 challenging the judgment and order of his conviction and sentence passed by the said judgment and order dated December 19, 2005. While the informant as appellant preferred Criminal Appeal No. 272 of 2006 challenging the judgment and order of acquittal passed by the Druta Bichar Tribunal by the self same judgment and order passed by it. Therefore, we feel it proper to dispose of both the aforesaid appeals by the same judgment, more so when both the appeals have been brought under section 14 of the Druta Bichar Tribunal Ain 2002.

  2. Short facts relevant for the purpose of disposal of both the appeals are that on 27-8-2004 at about 8-00 AM accused Fazlul Hoque having gone to the house of the informant called out Abdul Wahid alias Khalu Miah (since deceased the elder brother of the informant and had informed that he was going to effect a compromise over the dispute between the informant party and the accused persons in connection with the disputed hillock, indicating further that some other persons were also waiting for the same purpose on the hillock situated near the house of the informant, receiving such information Wahed proceeded towards the hillock with accused Fazlu. The informant having heard about the proposed compromise and on seeing at his brother’s going towards the disputed hillock, could not resist his apprehension of an impending danger, so he followed Wahed and Fazlu upto the hillock. But on their arrival over the hillock the accused persons who are Shafiquddin, Nizamuddin, Kanti Kumar Sharma, Mozibur Rahman, Mokbul Hossain, Chunu Mia, Quamrul Islam, Raza Mia, Saif-uddin and Bivash Ranjan Ghosh appeared in the scene all at a time, being armed with various deadly weapons and had attacked Abdul Wahid over the hillock at that stage accused Nizamuddin passed an order to kill Wahid Whereupon accused Shafiquddin opened fire from the firearm in his hand causing bullet injury on the chest of Abdul Wahid @ Khalu Mia, Abdul Wahid fell down on the ground at which accused Kanti Kumar Sharma dealt a dao blow on the left leg of the victim causing injury. When Abdul Wahid having fallen on the ground had started screaming, at that stage accused Mozibur Rahman, Saifuddin, Chunu Mia, Qamrul Islam and Raza Miah dealt fists and blows on the person of the victim Abdul Wahid; having seen such a situation the informant shouted alarm at which accused Mozibur Rahman opened fire with the gun in his hand aiming the informant but the same could not hit the target as the informant managed his escape. Hearing row raised by the informant and other witnesses who followed him upto the hillock, neighbours came around, whereupon the accused persons took to their heels; immediately thereafter victim Abdul Wahid was carried back to his house wherefrom he was rushed to Sylhet MAG Osmani Medical College Hospital, but the victim succumbed to his injuries on the way to the hospital and having reached there the doctors declared him dead. The prosecution disclosed further that in view of an ongoing dispute between the informant party and the accused persons over the ownership of the hillock, the accused persons having plotted a trick of compromise, took Abdul Wahid to the hillock and then he was killed by the accused persons in a preplanned manner, inquest over the dead body was done at Sylhet MAG Osmani Medical College Hospital and thereafter the dead body was brought back to his home and then FIR was lodged with Gopalganj police station on 27-8-2004 at 20.50 hours whereupon Golapping PS Case. No. 20 dated 27-8-2004 was registered.

  3. The police took up the case for investigation and on completion, submitted charge sheet No. 160 dated 10-11-2004 against 12 accused persons under sections 147/148/149/447/323/326/307/302/114/34 of the Penal Code.

  4. Eventually the case was sent to the Court of Sessions Judge Sylhet where it was registered as Sessions Case No. 88 of 2005 upon taking cognisance of the offence by the learned Sessions Judge. In view of enactment of Druta Tribunal Ain, 2002 (Act 28 of 2002, effective from October 24, 2002) the case was transferred to Druta Bichar tribunal Sylhet for trial where it was remembered as Druta Bichar (Sessions) Case No. 26 of 2005.

  5. Thereafter the Tribunal having taken up the case for trial framed charges against 11 accused persons. Since accused Bivash Ranjan Ghosh having preferred an application under section 561A of the Code of Criminal Procedure before this Court obtained an order to stay of further proceedings of the case, so far as he himself is concerned. Therefore, the case proceeded against the remaining accused persons who are 11 in number and on 26-9-2005 the charges were reframed as under:

  6. Against all the 11 accused persons under sections 148/149/302 of the Penal Code while a separate charge under section 307 was framed against accused Mozibur Rahman @ Mohib. The charges were read over to the accused persons present on dock who pleaded not guilty and claimed to be tried.

  7. In course of trial the prosecution examined 16 witnesses while the defence adduced none and upon conclusion of the trial the learned Tribunal convicted accused Fazlul Hoque, Shafiquddin, Nizamuddin, Kanti Kumar Sharma and Raza Miah under section 302/34 of the Penal Code sentencing each of them thereunder to suffer imprisonment for life and to pay a fine of Taka 10,000 in default to suffer rigorous imprisonment for one year more. While accused Mozibur Rahman, Shafiquddin, Qamrul Islam, Nazrul Islam, Mokbul Hossain @ Mogon and Chunu Mia were acquitted of the charges leveled against them. Accused Mozibur Rahman was also acquitted of the separate charge under section 307 of the Penal Code by its judgment and order dated 19-12-2005.

  8. It may not be out of place to mention that out of 11 accused persons put on trial accused Fazlul Huq, Shafiquddin, Nizamuddin, Kanti Kumar Sharma, Mozibur Rahman, Saifuddin, Qamrul Islam, Nazrul Islam were tried in absentia. While accused Raza Miah, Mokbul Hossain @ Mogan and Chunu Mia were present before the Court at the time of trial and that out of five convict accused persons Raza Mia alone preferred Criminal Appeal No. 34 of 2006 as against the judgment and order of his conviction and sentence and the other appeal being Criminal Appeal No. 272 of 2006 has been preferred by the informant against the judgment and order of acquittal passed in favour of six accused persons as disclosed above.

  9. Mr. Ozair Farooq, learned Advocate appearing on behalf of the sole appellant in Criminal Appeal No. 34 of 2006 submits that in the instant case the learned Tribunal has accepted the same evidence in respect of the convict appellant in Criminal Appeal No. 34 of 2006 but discarded the same in respect of acquitted accused persons, thereby acted illegally in convicting the appellant in this case. Mr. Farooq has also pointed out that the learned Tribunal did not take into consideration the omissions and contradictions on material particulars by the witnesses deposed before the Tribunal and having ignored such omissions and contradictions, relied on their testimony thereby acted illegally in convicting the accused appellant.

  10. Mr. Farooq has also pointed that the appellant Raza Mia was not at all present in the place of occurrence at the relevant time rather he being a Muttawali of Shah Porhan (R) Mazar situated at a distance of about 50/60 miles, he had been engaged there at the time of occurrence and plea of alibi has not at all been considered by the learned Tribunal in convicting the accused appellant.

  11. Mr. Farooq has also pointed out that because of animosity in between the parties, out of long standing litigations the accused appellant has falsely been implicated in this case. Elaborating his submissions Mr. Farooq has pointed out the deposition of witnesses, particularly the cross examination portion of their evidence wherefrom he made an attempt to show that the witnesses who are now claiming to be eye-witnesses before the trial Court, as a matter of fact did not disclose their presence at the place of occurrence, before the investigating officer while their respective statements under section 161 were recorded. He has also pointed out that PW 16, the Investigating Officer, has also admitted in his cross examination that those witnesses did not disclose those vital aspects of the case before him in their statements recorded under section 161 of the Code of Criminal Procedure. Therefore, the learned Advocate having drawn our attention to section 145 of the Evidence Act, submits that the witnesses who did not disclose those broad facts in their statements recorded under section 161 of the Code of Criminal Procedure and were admitted by the investigating officer, ought to have been treated as contradictions by the trial Court, under section 155 of the Evidence Act. But in the instant case the Tribunal has acted illegally in relying on the testimony of those contradicting witnesses.

  12. Mr. Farooq also submits that the learned Tribunal acted illegally in relying on the testimony of PW 1 in the case, although the same witness was not relied by the tribunal so far as it relates to the charge under section 307 of the Penal Code against accused Mozibur Rahman.

  13. Mr. Farooq submits further that in the inquest report the prosecution has disclosed a different place of occurrence in presence of PW 6 who is also a signatory in the said inquest report. Therefore, the prosecution case disclosed in the FIR lodged subsequently, is nothing but a subsequent embellishment in the prosecution case.

  14. The defence case as it appears from the trend of cross-examination that the appellant Raza Mia is the Khadem of Hazrat Shah Porhan (R) Mazar and he was on duty in the Mazar from 6-00 AM on the date of occurrence which is at Khadimpara Union Parishad situated at a distance of 50/60 miles away from the place of occurrence, yet he has been falsely implicated in this case.

  15. Since both the appeals have been taken up for hearing Mr. A.S. Md. Abdul Mobin, learned Advocate appearing for the appellant (informant) in Criminal Appeal No. 272 of 2006 submits on the contrary that in the instant case as many as 6 eye-witnesses have been examined in support of the prosecution case while the other witnesses have corroborated the eyewitnesses for the prosecution, of the aforesaid 6 witnesses Mr. Mobin has pointed out that PWs 1-3, 6-8 are, as a matter of fact, eye-witnesses in this case and submits that the previous statement of a witness under section 162 of the Code of Criminal Procedure can be treated as contradiction only when the previous statements and the deposition in Court is irreconcilable but if the statements under section 162 can be reconciled with the deposition in Court in that case there is absolutely no contradiction. Similarly every omission is not contradiction unless what is actually said in court contradicts what is omitted to be said in the statement under section 162, Criminal Procedure Code. To substantiate his submission Mr. Mobin refers to a decision in the case of Ram Bali vs. State reported in AIR 1952 Allahabad 289 and the case of State of Madhya Pradesh vs. Kalu Kachru Keer reported in AIR 1959 (Madh Pra.) 391.

  16. Mr. Mobin submits further that PWs 2, 3, 6 and 7 made minor omissions in their statements under section 162 of the Code of Criminal Procedure and the same cannot be treated as contradictions as contemplated under section 145 of the Evidence Act.

  17. Mr. Mobin also submits that in the instant case the defence has taken a plea of alibi and in the event of taking of plea of alibi the onus shifts on the defence to prove the same and on their failure to do so the defence case falls to the ground.

  18. Mr. Mobin submits further that in the instant case the Tribunal has assigned reasons for acquittal of the accused respondents which are absolutely erroneous, rather contrary to the evidence on record, as such, perverse. Therefore the order of acquittal is liable to be set aside and in view of the power conferred on this Court under section 417 of the Code of Criminal Procedure the order of acquittal can also be converted into one of conviction under the appropriate penal provision. Substantiating his submissions Mr. Mobin has placed reliance in the case of Podda Narayana vs. State of Andhra Pradesh reported in AIR 1975(SC) 1252.

  19. Mr. Mobin submits further that order of acquittal of respondent Nos. 5 and 6 are based on erroneous assessment of fact without considering that PW 8 has not at all contradicted his previous statement under section 162 while deposing before the court and his attention was not also drawn as contemplated under section 145 of the evidence Act. Mr. Mobin also submits that respondent Nos. 1, 2, 3 and 4 have been acquitted with findings contrary to the evidence on record and the same evidence having been accepted for some accused persons the same cannot be discarded for others. It has also been pointed out that the acquitted accused persons stand on the same footing as those of the convicts, in the instant case.

  20. Therefore, the judgment and order of acquittal is liable to be set aside.

  21. Mr. Golam Ahmed, learned Advocate appearing on behalf of respondent Nos. 1 to 6 in Criminal Appeal No. 227 of 06 submits that respondent No. 4 is not named in the FIR and the allegation against all the respondents are of dealing fist and blow to the deceased. Mr. Ahmed submits further that the prosecution could not prove their case beyond reasonable doubt. Therefore, they have rightly been acquitted by the Tribunal.

  22. Heard the learned Advocates, perused the material on record including evidence placed before us, wherefrom it transpires that out of 16 witnesses examined in this case PW 1 Hafiz Md. Mohibur Rahman, the informant, deposed before the Tribunal supporting his case disclosed in the FIR stating that on 27-8-2005 at 8-00 AM accused Fazlul Huq having gone to the house of Abdul Wahed @ Khalu (since deceased) called him out and then with a plea of a compromise of a long standing dispute Abdul Wahed was taken to the hillock situated towards north of the house of the informant, PW 1 followed his brother Abdul Wahed while he had proceeded towards the hillock with accused Fazlul Haque and on the arrival of Abdul Wahid accompanied by accused Fazlul Huque at the top of the hillock all the accused persons namely Nizamuddin, Shafiquddin, Quamrul Islam, Nazrul Islam, Bivash Ranjan Ghosh, Raza Miah, Mozibur Rahman, Kanti Kumar Sharma, Saifuddin, Moqbul Hossain @ Mogan, Chunu Mia Suddenly appeared and encircled said Abdul Wahid and on the order of accused Nizamuddin, Accused Shafiquddin opened fire from the arms in his hand which hit at the right chest near the nipple of Abdul Wahid at which he fell down on the ground and at that stage accused Kanti Kumar Sharma dealt a dao blow below the left knee of Abdul Wahid. While the victim had started screaming, having fallen on the ground sustaining bullet injury and the dao blow, at that stage accused Bivash Ranjan Ghosh, Raza Mia, Qamrul Islam, Moqbul Hossain, Chunu Mia, Saifuddin, Mozibur Rahman @ Mohib dealt fists and blows on the person of victim Abdul Wahid. At that stage, when the informant raised hullabaloo, accused Mozibur Rahman opened fire aiming at the informant who however managed his escape, hearing row witnesses like PWs 2, 3, 6 and 7 along with others joined him in the clamour whereupon neighbours came and consequently the accused persons took to their heels. Thereafter the victim was taken to his house through the informant and others and immediately thereafter he was rushed to Sylhet Osmani Medical College Hospital but on his way the victim succumbed to his injuries and at the hospital he was declared dead; inquest was prepared at the hospital and thereafter the dead body was carried back to his own home and immediately thereafter the FIR was lodged. During cross-examination this witness admitted the existence of his relationship with some of the witnesses. It is also admitted by this PW 1 that the hillock in question situate at a distance of 3-4 hundred cubic feet away towards the north of his house. During cross-examination this witness further disclosed that when the victim was taken to the hillock by accused Fazlul Huq at that time 3-4 persons followed him to the place of occurrence. He also admitted the existence of enmity between the informant party and the accused persons. This witness also admitted that the place of occurrence was besmeared with blood. But he explained that on the fateful night there was heavy pouring of rain. He denied the suggestion that there was quarrel between the brothers over landed property. His attention was drawn to the effect that he disclosed in the FIR that on their arrival to the hillock they found his brother (victim) dying. This witness also admitted that there is long standing litigation with the father of Chunu Mia and the informant party. On recall this witness disclosed that the local elders did not turn up to be examined in the case since they have been threatened by the accused persons and the informant was also threatened by the accused persons on 14-9-2004 through mobile phone and he was also asked to withdraw the case else a threat of dire consequence was dished out whereupon a GD Entry No. 577 dated 15-9-2004 was lodged by the informant.

  23. PW 2 Hasan Ahmed claiming himself to be the eye-witness narrated the occurrence in the same way as disclosed by PW 1. He also supported the case to the effect that on the arrival of Abdul Wahid accompanied by accused Fazlul Huque on the hillock accused Shafiquddin, Nizamuddin, Kanti Kumar Sharma, Mozibur Rahman, Moqbul Hossain @ Mogan, Quamrul Islam, Nazrul Islam, Raza Mia, Chunu Mia, Bivash Ranjan Ghosh jointly attacked Abdul Wahid and on the order of Nizamuddin, Shafiquddin opened fire from the arms in his hand causing bullet injury on the right chest of Abdul Wahid who fell down on the ground, at that stage Kanti Kumar Sharma dealt a dao blow at the left leg below the knee of Abdul Wahid. Other accused persons namely, Moqbul Hossain, Chunu Mia, Raza Mia, Quamrul Islam, Bivash Ranjan Ghosh and Nazrul Islam dealt fists and blows on the person of Wahid. When the informant attempted to proceed for rescue of Abdul Wahid then accused Mozibur Rahman opened fire at him which was however averted ultimately. Thereafter on hearing row other witnesses came and the accused persons took to their heels. He denied the suggestion that he disclosed in his 161 statement that the other witnesses come to the place of occurrence after retreat of the accused persons.

  24. PW 3 Shahid Md. Yakub claiming as eye-witness also disclosed the prosecution case as narrated by PWs 1 and 2 who specified names of all the accused persons assembled on arrival of Abdul Wahid at the top of the hillock as also his witnessing the enteric occurrence including opening of fire by accused Shafiquddin by the arms in his hand causing bullet injury on the chest of Wahid. This witness also corroborated the fact that when Abdul Wahid had fallen on the ground sustaining bullet injury Kanti Kumar Sharma dealt dao blow on his leg below the knee and the other accused persons as specifically named as above dealt fists and blows on the person of Abdul Wahid. This witness specifically denied the defence suggestion that the occurrence took place at their residence or that he omitted to mention broad facts before the Investigating Officer.

  25. PW 4 Jamshed Mia deposed that he having heard the sound of gunfire rushed to the PO and had seen that the accused Fazlul Huque including Nizamuddin, Safiquddin, Kanti Kumar Sharma, Mojibur Rahman, Moqbul, Chunu Mia, Qamrul Islam, Nazrul Islam, Saifuddin, Bivash Ranjan Ghosh and Raza Mia were running down from the hillock. He claims to have seen arms in the hands of Shafiquddin and Mojibur Rahman and a dao in the hand of Kanti Kumar Sharma. He also found victim Abdul Wahid lying senseless on the hillock and he participated in carrying the victim down to his own house. He also disclosed that a mobile phone was found by Hasan Ahmed PW 2. This witness however admits litigation between the informant party and the accused persons. This witness denied the suggestion that he did not disclose some material facts in his statements under section 161,

  26. PW 5 Nurunnahar Begum, daughter of deceased Abdul Wahid, deposed that she having gone to see his dying father immediately after the occurrence, heard from the witnesses present that Shafiquddin, Raza, Mia, Nizamuddin, Kanti Kumar Sharma, Bivash Ranjan Ghosh, Mozibur Rahman, Qamrul Islam, Nazrul Islam, Fazlul Huque had killed her father. This witness is however not an eyewitness.

  27. PW 6 Ferdaus claiming himself as an eye-witness, narrated the prosecution case as was disclosed by PW 1. He further adds that he followed his uncle Mohibur Rahman the informant PW 1 along with his cousin Shahed, Afzal Zubair to the place of occurrence. He also disclosed the names of the accused persons who participated in the occurrence. His attention was drawn to the disclosure made in the inquest report (where he was also a signatory,) to the effect that the victim sustained injury at his own residence by gun shot opened by miscreants. He denied the suggestion that there was a scuffle amongst his paternal uncles including his father and there was no occurrence at the hillock. He denied the suggestion that he did not disclose the names of the assailants in his statement under section 161.

  28. PW 7, Afzal Hossain a student of Masters class reading in Madan Mohan College, went to attend Jakir Mahfil at the residence of PW 1. This witness disclosed in his deposition that on the following night after the occurrence police officer had gone to the place of occurrence. But it was a dark and rainy night.

  29. PW 8 is the brother-in-law of the deceased. He claims to have followed PW 1 to the place of occurrence when accused Fazlu took Abdul Wahid to the hillock on the plea of a compromise. He also corroborated all the names of the accused persons who surrounded the victim immediately after his arrival on the hillock. He also corroborated the manner in which Shafiquddin opened fire hitting the chest of the victim as also dealing of Dao blow by the accused Kanti Kumar Sharma on the person of the deceased. This witness also participated in carrying down the victim from the hillock upto his house disclosing the fact of picking up of a Nokia mobile set from the place of occurrence. This witness also disclosed that on the previous night he had also gone to the house of Wahid (deceased) for a Jakir Mahfil. This witness denied the suggestion that he did not disclose to the IO that he also followed PW 1 to the hillock.

  30. PW 9 Md. Abdul Qaiyum is another brother of Abdul Wahid who disclosed in his deposition that on 27-8-2004 at about 8-00 AM he along with his two other brothers namely, Soleman and A Quddus were at Gopalganj police station. Since they were asked by the police to go there, wherefrom they had returned back to their residence after Jumma prayer (it was Friday). Then he heard about the occurrence from other witnesses. This witness disclosed that on 26-8-2004 at mid night Shafiquddin, Nizamuddin and other accused persons raised pillars for construction of a house as a mark of their possession over the hillock which was however uprooted by this witness and others. Then on the next morning the accused persons took Wahid to the hillock on the plea of compromise, where he was done to death. He is also a seizure list witness marked as Ext 2(Kha) whereby a bullet measuring 1/2 inch was seized. The said bullet was also marked as material Exhibit. This witness disclosed that witness Chand Mia, Sharif-uddin, Mohibur Rahman son of Md. Badir Ali, Peer Altafur Rahman, Gaous Mia are reluctant to depose in the case out of fear. This witness, however, admitted in his cross examination that he lodged GR Case No. 606/04 against accused Chunu Mia and Moqbul Hossain and he also admits that there is a civil suit pending against the accused persons from before the occurrence and the High Court Division delivered judgment in favour of the accused persons. This witness admits that they were taken to the police station at dawn on the date of occurrence minutes after Fazar prayer and they were detained for six hours in the police station.

  31. PW 10 Jamila Aktar, wife of deceased Abdul Wahid, was simply tendered for cross examination and in her cross-examination by the defence she disclosed that on hearing the death news of her husband her father, mother and other brothers came to their house. She also disclosed that she along with her other brother in-laws along with their respective families live in the same house and take their meal in a joint mess.

  32. PW 11 constable Fakhrul Islam who carried the dead body to the morgue for autopsy and had returned back the same to his relations after autopsy.

  33. PW 12 Dr. Abu Ahmed Adiluzzaman, an Assistant Professor of Forensic Medicine Department at Sylhet MAG Osmani Medical College Hospital who did the autopsy over the dead body of Abdul Wahid and had found three injuries on his person. These are as follows:–

  1. One round penetrating wound 1/4" in diameter at right lateral aspect of chest 3 right side of nipple with slight blackening of entry wound.

  2. One abrasion 3 back of injury No. (1) 1/5 in diameter.

  3. Oblique incised wound at left shin 1 1/2" x 1/4" x 1/4" x 2" below knee joint.

He also disclosed that bullet was recovered from left lateral chest wall near 3rd rib and the bullet was directed from right to left below upward and slight oblique and there was through and through perforation of upper part of both lungs and heart. The doctor was of the opinion that the death was due to shock and hemorrhage as a result of injury to the both lungs and heart which was ante mortem and homicidal in nature caused by bullet of firearm. The bullet was seized and the same was identified by the doctor in Court. During cross examination nothing could be elucidated from this witness by the defence.

  1. PW 13 Abed Hossain is an Assistant Sub-Inspector of Police who apprehended the appellant Raza Mia in connection with this case. This witness also discloses that two other warrants against appellant Raza Mia had been pending in connection with Kanaighat PS Case No. 9(10)/92 and Sessions Case No. 78/93. During cross examination this witness denied his knowledge as to whether he got acquittal in the aforesaid two cases referred to above, in reply to a suggestion put by the defence. He also denied any knowledge about the appellant being a Khadem of Mazar Shah Poran (RH). He however admitted that the appellant was apprehended from his house situated near the Mazar.

  2. PW 14 Abedur Rahman Chowdhury is an officer of Grameen Phone Limited serving in customer communication department, who deposed that in connection with Golapganj PS Case No. 20 dated 27-8-2004 and Mobile phone No. 0171356350 he was asked to go for a search whereupon he made a search through his office record and found the owner of the said mobile phone was one Kanti Bijoy Sharma of Shankha Pharmacy, Dhakadakshin, Sylhet and in this connection he made a report and the said report was exhibited as Exhibit-3 which contains his signature marked as Exhibit-3(1) During cross examination this witness admitted that father’s name of Kanti Bijoy Sharma was not noted in his office record and the name is not written as Kanti Kumar Sharma and there was no photograph attached with it as no photograph was required.

  3. PW 15 Abul Kashem is an Inspector of Police who was at the relevant time serving as Officer in Charge Golapganj PS who registered the case on the basis of a written Ejahar lodged by Hafiz Mohibur Rahman, the Ejahar was marked as Exhibit-I and his signature was marked as Exhibit- 1(2) and he had engaged sub-inspector Md. Abul Kashem as the Investigating Officer of the case who had also prepared the inquest report, on his direction through mobile phone as he was then residing at Sylhet Town. On the basis of his mobile phone a GD Entry was recorded with Golapganj Police Station. During cross-examination on behalf of the appellant Raza Mia this witness disclosed that he left for Sylhet town on the date of occurrence at 7-35 AM for attending a conference there, upon noting a GD Entry being No. 1034 and he received a message through wireless about the death of one person sustaining bullet injury. He also disclosed in his cross-examination that till 17-05 hours, no one including any relation of the deceased, informed him about the occurrence. This witness also disclosed that he went to the place of occurrence straight from Osmani Medical College Hospital and in the FIR the place of occurrence was noted as Munshipara.

  4. PW 16 Md. Abul Kashem, Sub-Inspector of Police was the Investigating Officer in the case who recorded GD Entry No. 1042 dated 27-8-2004 upon receiving instruction through mobile phone from the officer in charge of Golapganj Police Station. This witness prepared the inquest report at 13-45 hours at Sylhet MAG Osmani Medical College wherefrom the dead body was sent for autopsy. The said witness having been engaged as an investigating officer seized alamats on 27-8-2004 at 17-30 hours including blood-stained wearing apparels of the deceased. This witness also disclosed that on 27-8-2004 at 20-15 hours he had gone to the place where occurrence took place. But he could not visit the exact place of occurrence due to darkness. But he examined two witnesses on that day and on the next day i.e. 28-8-2004 at 6-00 AM he visited the place of occurrence, prepared sketch map, index, etc. He also seized one Nokia Mobile set No. 3310 phone No. 017-1356350. He also identified seized mobile phone in the Court, had obtained a report about the name and description of the owner of that mobile phone and had found the name of the owner of the said mobile as one Kanti Bijoy Sharma. This witness also seized 1/2 bullet from the medical hospital which was also identified by this witness. This witness recorded the statements of witnesses under section 161 and on scrutiny of records he had found previous cases against accused Shafiq-uddin, Kanti Kumar Sharma and Raza Miah the appellant before this Court. This witness also disclosed that accused Kanti Kumar Sharma is also listed as a terrorist. He also apprehended some accused persons. This witness further disclosed that during investigation on the basis of allegations made by the informant a GD Entry No. 577 dated 15-9-2004 was recorded where allegation of dishing out threat by the accused persons were disclosed and upon conclusion of investigation in this case he has submitted charge sheet against 12 accused persons as disclosed in the foregoing paragraphs. This witness also disclosed in his deposition in chief that on 27-8-2004 3 brothers of the informant were apprehended by the police at 07-30 AM under section 151 of the Code of Criminal Procedure and they were released at 12-30 AM and in this connection GD entry No. 1044 was recorded with the police station. This witness also disclosed that before recording first information report in this case GD entry No. 1042, 1044, 1050 and 1055 were recorded with the police station and out of which 1055 was recorded by the officer in charge himself and 1042 was recorded by this witness being PW 16 and that GD entry No. 1042 was recorded by him on receipt of the message through mobile phone from the officer in charge Golapganj Police station from Sylhet in connection with the death of Abdul Wahid @ Khalu Miah and that on 27-8-2004 as many as 37 GD entries were recorded within 24 hours. This witness in his cross examination also admits about the existence of a disclosure in the inquest report to the effect:–

  1. This witness during cross-examination also disclosed that on 27-8-2004 he could not go to the place of occurrence for investigation as it was under a thick cover of darkness. In reply to a question this witness admitted that he did not find any marks of violence in the PO. This witness denied the suggestion that he did not accept any papers to show that Raza Mia, the appellant was engaged in the Mazar from 6 AM to 12 noon on the date of occurrence. This witness also denied the suggestion that there was a free fight between the brothers on the date of occurrence out of which Abdul Wahid died sustaining injury in that fight and that the accused persons have been falsely implicated in this case out of political rivalry.

  2. From a close scrutiny of the cross examination portion of deposition of this witness we find that PW 16 had disclosed the omissions by PWS 2, 3, 4, 5, 6 and 7 in their previous statements recorded under section 161 of the Code of Criminal Procedure. But so far as PW 8 Zuber Ahmed Chowdhury, PW 9 Md. Abdul Quiyum are concerned the omissions disclosed by PW 16 in their statements under section 161 of the Code of Criminal Procedure do not appear to be in connection with any material part of the prosecution case.

  3. These are all about the deposition of witnesses in this case. From the trend of cross examination of the witnesses the defence case as it transpires, that Abdul Wahid sustained injuries at his own house in course of a scuffle between the brothers over sharing of their ancestral property and he succumbed to the injuries sustained in that incident and that the accused persons have been falsely implicated in this case out of previous grudge ensued over political rivalry and land dispute between the informant party and the accused persons.

  4. On a close scrutiny of the evidence on record and upon perusal of the impugned judgment we find that the learned Tribunal having found the deposition of PW 1 alone as a credible one, on the basis of the testimony of the said witness he has convicted the accused appellant along with 4 others, thereby passed the impugned judgment acquitting the respondents in Criminal Appeal No. 272 of 2006. We have also noticed that the Tribunal upon assessment of the evidence, in his own way, has arrived at a finding to the effect that PWs 2, 3, 6, 7 and 8 definitely had gone to the place of occurrence after the accused persons had retreated from the scene, such finding has been based on the alleged contradictions available in the depositions of those PWs 2, 3, 6, 7 and 8 therefore the Tribunal had discarded their testimony as a whole. In doing so the Tribunal made reference to the first information report and the deposition of the Investigating Officer who deposed as PW 16. But having gone through the first information report we find no inference, whatsoever, is deducible therefrom with respect to the testimony of those witnesses, as has been done by the Tribunal. We have also carefully scrutinised the so-called omission of PWs 8 as available from the deposition of PW 16, rather we find the deposition of PW 16 with respect to the previous statements of PW 8, Zuber Ahmed, reads as under:

  1. From the aforesaid deposition of PW 16 we find that the remaining part of the deposition of PW 8 who claims to have followed the victim along with PW 1, remains un-assailed. Therefore, the testimony of this witness PW 8 cannot be brushed aside altogether. Rather he corroborates he deposition of PW 1 with respect to other part of his disclosure. More particularly when the said part of the deposition of PW 8 is far from being irreconcilably inconsistent, as such cannot be termed as contradiction. Therefore in our opinion the deposition of the witnesses such as PWs 1 and 8 as disclosed in this case, remains unimpeachable, these two witnesses being the direct eyewitnesses, have proved the prosecution case beyond reasonable doubt. In this connection the cases relied by Mr. Mobin, being AIR 1952 (All) 289 and AIR 1959 (Madh Pra) 391, may be referred to and upon going through the case of Raghubar Dayal and others reported in 1952 (All) 289 we have no hesitation to note with approval, the proposition of law enunciated in that case regarding direct witnesses with reference to his previous statement recorded under section 161 of the Code of Criminal Procedure which reads as under:

“A statement recorded by the police under section 161 of the Code of Criminal Procedure can be used for one purpose and one purpose only and that of contradicting the witness. Therefore, if there is no contradiction between his evidence in Court, and his recorded statement under section 161 Cr.P.C., the latter cannot be used at all. If a witness deposed in Court that a certain fact existed but has stated under section 161, either that the fact had not existed or that the reverse and irreconcilable fact had existed it is a case of conflict between the deposition in the Court and the statement under section 161 and the latter can be used to contradict the former. But if he had not stated under section 161 anything about the fact, there is no conflict and the statement cannot be used to contradict him. In some cases an omission in the statement under section 161 may amount to contradiction of the deposition in Court, they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence. If the statement under section 161 can be reconciled with the deposition in Court and can stand with it, there is absolutely no conflict.

….

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Unless, therefore, a deposition in court cannot be reconciled with what is stated under section 161, the statement under section 161 cannot be used to contradict the witness.”

  1. The other case reported in AIR 1959 (Madh Pra) 391 appears to have followed the case of Rambali, so it needs no mention.

  2. In the position both of fact and law as disclosed above, we find that the prosecution has been able to prove its case beyond reasonable doubt.

  3. Now turning to the point of conviction and sentence imposed upon the appellant Raza Mia, we have seen that the allegation against him is that he was one of the members of the unlawful assembly of 12 accused persons, but the witnesses do not ascribe possession or carrying of any weapon by him at the relevant time, rather we find that the two witnesses namely, PWs 1 and 8 upon whom we can safely reply, disclosed that this appellant had participated in the occurrence by giving fists and blows to the victim Abdul Wahid. Now, under the facts proved and the circumstances disclosed before this Court we do not find that the conviction against the appellant under sections 302/34 of the Penal Code can be sustained. More particularly when it is difficult to infer from the evidence disclosed in the case that the appellant Raza Mia being a member of the unlawful assembly had any common intention or had a common object of causing death of victim Abdul Wahid. In this connection reference may be made to the case of Bangladesh vs. Abed Ali reported in 36 DLR (AD) 234, wherefrom we find that their Lordships while dealing with a case involving application of sections 34 and 149 of the Penal Code, have clearly enunciated the principle as under:

“It should be noted that neither section 34 nor section 149 creates and punishes any substantive offence; but they are intended to deal with liability for constructive criminality, that is to say, liability for an offence not committed by the person charged. Section 34 applies in a case where a criminal act is done by two or more persons in furtherance of the common intention of all, whereas, section 149 applies in the case of members of an unlawful assembly when a criminal act is committed by any member of the unlawful assembly in prosecution of the common object of the unlawful assembly.

….

….

As clearly appears from these two sections, both deal with combinations of persons who become punishable as “sharers in an offence,” They have certain resemblance and may to some extent overlap. Section 34 applies to a case in which several persons both intend to do an act and in fact do that; does not apply to a case where several persons intend to do an act but some one or more of them do an entirely different act; in such a case section 149 may apply provided other requirements are fulfilled. The basis of constructive guilt under section 149 is mere membership of an unlawful assembly; the basis of the offence under section 34 is participation in an act with the common intention of doing that act. So, where common intention and common object are one and the same in a given case, both these sections may apply. In this case all the accused persons were charged with and convicted of rioting under section 147 besides they were charged with and convicted of the offence under section 436; Now the question is whether section 34 or section 149 should be added therewith. The alteration of the finding by applying section 149, instead of section 34 is not bad in law as “common intention” and “common object” have overlapped in this case. But the question is whether in the facts and circumstances of the case, particularly in view of the passive part played by these six respondents during the occurrence, they can be held liable for the offence under section 436, which was actually committed by other persons, by applying section 149. That they were members of an unlawful assembly and violence was used by any one of them is an established fact, and we find no reason whatever to exclude these respondents from the responsibility for committing “rioting” punishable under section 147, but to go beyond it and hold them responsible for the act of destruction of the house by fire, will not be warranted by the facts and circumstances of this case. We are of the view that they are guilty of simple rioting but they are not guilty of committing the offence under section 436 read with section 149”

  1. Relying on the principle of law enunciated in the aforesaid cases we have no hesitation to hold that under the facts and circumstances established in the case before us, warrant a conviction under section 147 of the Penal Code against the appellant in view of his participation with an unlawful assembly of 12 accused persons at the scene of occurrence, where some others have been charged and convicted with different offences. But insofar the appellant Raza Mia is concerned we do not find any material to sustain his conviction under sections 302/34 of the Penal Code.

  2. The facts proved in the case before us, warrant conviction against the appellant Raza Mia under sections 147 and 323 of the Penal Code for dealing fists and blows on the persons of victim Abdul Wahid when he fell down on the ground sustaining gunshot injury.

  3. Therefore, the appellant is found guilty under section 323 and 147 of the Penal Code. Accordingly, he is sentenced to rigorous imprisonment for 2 years under section 147 and 1 year under section 323 of the Penal Code with fine of Taka 1000 on each court i.e. (1000 + 1000 = 2000) in default, to suffer simple imprisonment for 2 months more. The sentences shall run consecutively.

  4. Maximum sentence under each count is imposed upon the appellant under the facts and circumstances disclosed in the case before us which, according to our considered opinion, are warranted, very much, in the fitness of things and more particularly for the cause of justice.

  5. With the modification of conviction and sentence as above, Criminal Appeal No. 34 of 2006 is hereby allowed in part and the impugned judgment and order of conviction and sentence does hereby stand modified, so far as it relates to the appellant Md. Azadur Rahman Raza alias Raza Mia only.

  6. Turning to the other appeal against acquittal we find that the facts proved by PWs 1 and 8 against acquitted respondents in Criminal Appeal No. 272 of 2006, it has rightly been pointed out by Mr. Mobin that the Tribunal committed illegality in relying on the same evidence for one set of accused persons while discarding the testimony thereof in respect of other set of accused persons. It is further found that the Tribunal has committed an illegality in entertaining the attitude of appreciation of evidence as manifested in the impugned judgment, more particularly when we have also noticed that the finding of facts arrived at by the Tribunal in acquitting those accused persons are contrary to the evidence on record, therefore perverse, as such Criminal Appeal No. 272 of 2006 is also allowed and the impugned judgment and order of acquittal insofar as it relates to the accused respondent Nos. 1-6 are hereby set aside and in view of the established principle of law and more so when it is an appeal under section 14 of the Druta Bichar Tribunal Ain, 2002, the impugned judgment and order of acquittal in respect of respondent Nos. 1-6 is thereby reversed into an order of conviction under sections 147 and 323 of the Penal Code, on the same reasons of both fact and laws as assigned by us in the connected appeal, sentencing each of the respondents to suffer rigorous imprisonment for 2 years and 1 year under both the counts respectively with a direction to run both the sentences consecutively and also to pay fine of Taka 1000 under each of the said two counts i.e. (1000 + 1000 = 2000) in default, to suffer simple imprisonment for 2 months each.

  7. The Tribunal is directed to secure arrest of respondent Nos. 1-6 namely (1) Mojibur Rahman @ Muhib son of late A Rauf Driver (2) Md. Saifuddin son of late Joyed Ali (3) Qamrul Islam son of Faruk Miah (4) Nazrul Islam son of Akol Miah @ Rakol Miah (5) Mokbul Hossain Magan son of late Mosttokin Ali and (6) Chunu Miah son of Zahir Ali in Criminal Appeal No. 272 of 2006 for bringing them to justice for the purpose of serving out the sentences imposed upon each of them.

Send down the lower court’s record at once along with a copy of this judgment for compliance.

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