Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABUL MONDAL VS Respondent: THE STATEHonorable Justice SALAHUDDIN AHMEDFarid Ahmad,A. T. M. Masud
1969 P Cr
1969 P Cr. L J 827
[Dacca]
Before Salahuddin Ahmed and T. H. Khan, JJ
ABUL MONDAL AND 2 OTHERS‑Appellants
Versus
THE STATE‑Respondent
Appeal No. 79 and Death Reference No. 3 of 1969, decided on 22nd April 1969.
Penal Code (XLV of 1860), S. 302‑Murder‑Sentence-- Mitigation‑Possibility of some other person (than accused) participating in assault upon deceased not excluded‑Prosecution failing to explain two abrasions on chest of deceased‑Motive of accused in killing deceased not ascertainable from evidence-- Inference drawn from evidence that murder was not pre-planned and premeditated but result of an instinct of self‑preservation and committed at spur of moment‑Circumstances weighing in favour of accused in matter of reduction of sentence‑Sentence of death commuted to transportation for life.
Farid Ahmad, Julmat Ali Khan for Appellants.
A. T. M. Masud, Deputy Legal Remembrancer and A. T. M. Afzal for the State.
Dates of hearing : 16th, 17th and 18th April 1969.
JUDGMENT
SALAHUDDIN AHMED, J.‑This is a Reference under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death passed on the condemned‑prisoner Abul Mondal under section 396 of the Pakistan Penal Code by the Sessions Judge of Bogra.
There is also an appeal by the condemned‑prisoner Abul Mondal and two other co‑prisoners Makbul Pramanik and Abut Pramanik all of whom have been convicted under section 396 of the Pakistan Penal Code and while the first one has been sentenced to death, the other two have been sentenced to suffer rigorous imprisonment for ten years each.
Both the Reference and the appeal have been heard together and they are now disposed of under one judgment.
The occurrence took place in the houses of P. W. 1 Radha Charan Pramanik and his next door neighbour Ganesh Chandra Pramanik since deceased. The prosecution case is that P. W. 1 Radha Charan Pramanik and his two brothers P. W. 2 Raicharan Pramanik and P. W. 4 Sadhucharan Pramanik dwell in the east facing house situated on the north and the west bhiti of the homestead. The house of Ganesh Chandra Pramanik (deceased) is almost adjacent to the house of P. W. Radhacharan and his brothers on the west intervened by only an alley. Just after midnight on Saturday the 10th Kartik, 1374 B. S. corresponding to 29‑10‑67, P. W. Radhacharan woke up from sleep on hearing the barking of dogs. He informed his brothers P. Ws. 2 and 4 Raicharan and Sadhucharan of the barking of the dogs and asked them to check up the heads of cattle. P. W. Radhacharan then opened the gate to the south of their homestead and sat outside the passage to answer a call of nature and saw flashes of electric torches and also felt the pelting of some pieces of stones, P. W. Radhacharan became panic stricken and he screamed that people had appeared to invade their houses and he himself went into his house and bolted the door. From the flashes of torches the witness guessed that the people might be not less than 12/14 in numbers. Having got into his but be called through the window opening towards the house of Ganesh Chandra Pramanik deceased on the west, and warned the inhabitants on the west that people had arrived to invade their houses. In the meantime there were lots of noise both in the house of P. W. Radha Charan and the house of Ganesh Chandra (deceased) and there was also sound of fire of two gun shots. On hearing the call of P. W. Radha Charan, his two brothers, Raicharan and Sadhucharan and their employee P. W. 3 Gopal Chandra Barman responded and they came out to the south gate and saw a number of people to further east. Three of these invaders advanced towards P. Ws. Raicharan, Sadhucharan and Gopal Chandra Barman and two of them were recognised in the light of the burning hurricane lantern hanging from the roof of the south gate to be prisoners Makbul Pramanik and Abul Pramanik. Makbul Pramanik had a dagger and Abut Pramanik and the third unknown invader had a lathi each in their hands. Abul Pramanik struck Sadhucharan with the lathi on his lips and as he turned to get into the house, he was given by the former 3/4 more lathi blows. P. W. Raicharan tried to rescue his brother Sadhucharan and the former was instan taneously given a dagger blow on his right hand by prisoner Makbul Pramanik. As other invaders appeared on the scene the said three witness came inside the gate and shut the bamboo shutter of the gate and pushed the shutter to keep it in place as the invaders pushed the shutter from outside. As a result of the pushing the two wooden posts (Exh. III) used for fixing the shutter fell down. In the meantime sounds of crying and lamenta tions came from the house of Ganesh Chandra Pramanik (deceased) on the west and there were the said two gun shots in. quick succession in the nighbourhood and the invaders left. P. W. 18 Shebak Chandra Sarkar residing in the house of P. W. Radhacharan and his brothers who is a member of village defence party and was at the time engaged in patrol duty along with P. W. 17 Dharani Kanta Pramanik heard the shouts of Radhaz charan and having advanced towards the house of Radhacharan saw the flashes of torches and also the throwing of stones. These two witnesses guessed the numbers of invaders to be 4/5 in number. The men of the patrol party suffered from fear and instead of advancing further to the house of occurrence ran back to the house of a member of the Union Council, namely, P. W. 1 Sankar Kamal Sarkar who had a licensed gun. Having got the news of invasion by dacoits and having been requested to render assistance P. W. Sankar Kamal Sarkar hurriedly collected some of his close neighbour and started with his gun towards the place of occurrence. On his way close to the house of P. W. Radhacharan the witness heard much noise and he fired a blank shot and having proceeded further towards the outer yard of P. W. Radhacharan's house he fired another blank shot. There are the two aforesaid gun shots P. W. 5 Bhim Chandra Pramanik then a student of Class IX of a High School and a lodger in the house of Ganesh Chandra (deceased) was at the time of occurrence reading in the light of a burning hurricane lantern (Exh. A). Having heard the noise coming from the house of P. W. Radhacharan Ganesh Chandra (deceased) got up from sleep and called his son P. W. 6 Anil Chandra Pramanik and their lodger P. W. Bhim Chandra and drew their attention to the noise coming from the house of P. W. Radhacharan and his brothers, and asked P. W. Bhim Chandra to accompany with his burning lantern. Ganesh Chandra and P. W. Bhim Chandra then proceeded to the gate and having opened it saw the condemned‑prisoner Abul Mondal standing with a dagger in his hand. Thereupon Ganesh Chandra said "Haloo Abul, is this your doing?" P. W. Bhim Chandra in the light of the hurricane lantern that he was carrying, too, saw Abul Mondal there. Abul Mondal at once struck Ganesh Chandra on the front part of his head with the dagger and when Ganesh Chandra turned to escape, he was given further blows with the dagger at the back of his head, neck and shoulder. As a result of the blows given to him, Ganesh Chandra Pramanik suffered from bleeding injuries and he fell flat on the ground in his house inside the gate. In the meantime the firing of the said two gun shots were heard by the inmates of the house of Ganesh Chandra and P. W. Bhim Chandra heard the sounds of the footsteps of 8/10 persons running away. Ganesh's son P. W. Anil Chandra Pramanik on hearing the call of his father advised him to wait and see and not to go out at that point of time. The witness nevertheless, saw through the window of his house his father Ganesh Chandra going out with P. W. Bhim Chandra and subsequently saw the assault on Ganesh Chandra by the condemned‑prisoner Abul Mondal. Ganesh's wife P. W. 7 Kiron Bala Pramanik also heard the noise coming from the house of P. W. Radhacharan and she woke up and warned her husband and other inmates not to go out of the house. The witness heard sounds of pelting of brickbats and flashes of electric torches and having heard the screems of P. Ws. Bhim Chandra and Anil Chandra, herself screamed and immediately proceeded to the gate and found her husband lying on the ground. The neighbours P. W. 8 Tafiluddin Sarkar, P. W. 10 Ahmad Ali Pramanik, P. W. 11 Jatindra Nath Sarkar, P. W. 12 Heramba Nath Sarkar and P. W. 16 Sudhir Chandra Pramanik among others also woke up from their sleep having heard the noise in the two houses of occurrence. These witnesses visited the house of Ganesh Chandra and saw Genesh Chandra lying in the court yard inside the gate with bleeding injuries on him. They heard about the occurrence from P. Ws. Bhim Chandra and Anil Chandra both of whom reported to the witnesses about the fact of their recognition of the condemned‑prisoner Abul Mondal as the assailant of Ganesh. The neighbours then went to the house of P. W. Radhacharan and there they saw the marks of depredation left by the invaders in his house and learnt from the inmates of the house about the invasion which took place there and the names of two of the invaders, namely prisoners Makbul Pramanik and Abul Pramanik. Ganesh Chandra was examined by P. W. 20 Khowajuddin Ahmed an alopathic medical practitioner who passed from the Bogra Medical School and the former said that the latter would die soon. Ganesh Chandra breathed his last at dawn and his corpse was removed to the inner courtyard of his house and placed under a tulsi plant held sacred by the Hindus. P. W. Radhacharan lodged a first infor mation report at the police station on 29‑10‑67 at 11‑30 a. m. The thana is five and half miles off from the place of occurrence.
After the usual investigations followed by a preliminary enquiry by a First Class Magistrate the three prisoners were sent up for trial before the Sessions Judge on a charge under section 396 of the Pakistan Penal Code. All the three Assessors who were members of the Court were unanimously of opinion that the three prisoners were guilty of the charge framed against them. The learned Sessions Judge accepted the opinion of the Assessors and convicted and sentenced the prisoners as stated above.
The defence set up was that there existed rivalry between two sections of villagers and as a result of the party factions, one of which was led by P. W. Jitendra Nath Sarkar and the other by one Azimuddin there was some trouble over the dismantling of the Primary School house and the removal of the materials to the site of the High School. It was also suggested that both the prisoners Mokbul Pramanik and Abul Pramanik took part in the dismantling and removal of the Primary School house materials and that the removal was looked at with disfavour by P. W. Jitendra Nath Sarkar and some other witnesses. It was, therefore, suggested by the defence that the prisoners were falsely implicated as a result of the existence of the party factions.
That an occurrence took place in the house of P. W. Radhacharan and Genesh Chandra Pramanik (deceased) on the date of occurrence as alleged by the prosecution has hardly been disputed. Besides there are overwhelming evidence to prove these facts.
The prosecution case rests upon the evidence of no less than six eye‑witnesses of occurrence.
Mr. Farid Ahmed, learned Advocate appearing on behalf of all the three prisoners has contended that prosecution has failed to prove that a dacoity took place at the place of occurrence. This contention is based upon the evidence of eye‑witnesses all of whom appear to have stated the number of the invaders by guess. Reading the evidence of the witnesses of occurrence as whole one gets an impression that although the witnesses between themselves had seen four prisoners including the three prisoners, none of them has categorically stated that he actually saw more than four prisoners. The number of the invaders given by the different witnesses are 12/14, 7/8, 8/10 and 10/12. On a reading of the evidence it seems evident that these numbers have been given on the basis of guess and impression rather than having actually seen them. It is significant that even in the first information report the number of the invaders has been mentioned to be four without the addition of any such word as "others or more". We accordingly hold that the prosecution has failed to prove beyond any reasonable doubt that the occurrence which took place at the houses of P. W. Radhacharan and Ganesh Chandra (deceased) was a dacoity inasmuch as it is legitimate to give the benefit of doubt in regard to the number of the invaders to the defence. It is significant that in the F. I. R. in column 3 no offence of dacoity is mentioned at all.
A question, however, arises as to what offence, if any, has been proved by the prosecution upon the evidence it has led before the Court.
The witnesses of occurrence are, so far as the house of P. W. Radha Charan and his brothers is concerned, P. Ws. 1, 2, 3 and 4, all of whom are inmates of the house. The witnesses of occurrence so far as the house of deceased Ganesh Chandra is concerned are P. Ws. 5, 6 and 7, all the three being the inmates of this house. The evidence of all these witnesses of occurrence clearly show that shortly after midnight on the date of occurrence, certain invaders tried to force entry into the two houses which are almost adjacent to each other but for a very narrow strip of land called an alley. The alamats recovered by the police namely, broken Jhapdoor and the evidence of the neighbours who arrived cat the scene of occurrence shortly fully support the prosecution case that some persons invaded the houses for the purpose of committing theft in course of which they had used force and caused hurt. There is evidence to show that P. Ws. Radhacharan and his brothers are men of substantial means owning substantial quantity of lands. The evidence shows that Ganesh Chandra boas also a man of substance who could afford to keep a student lodger at his place, namely, P. W. Bhim Chandra. Considering these facts and keeping in view the time and manner of the invasion it is reasonable to infer that the intruders wanted to commit theft but they failed in their objective because of the fact that the inmates of the two houses woke up in time and failed the purpose of the invasion. There is no evidence to show that any one of the witnesses of occurrence mentioned above has had any reason whatsoever to falsely implicate the three prisoners. Each and every one of these witnesses has denied suggestions of enmity and ill-feeling between him and any one of the three prisoners. The defence case that a party faction in the village headed on one side by P. Ws. Jatindra Nath Sarkar and Tafiluddin Sarkar, and on the other side by one Azimuddin and that there was trouble between the two factions over the removal of the materials of a Primary School to the site of a High School has been denied by all the witnesses to whom they have been put. Only one witness appeared to have admitted that the removal of the materials of the Primary School to the High School was not looked with favour by P. Ws. Jatindra and Tafiluddin. The witnesses however, proceeded that they never protested to the dismantling of the house. Be that as it may, there is no material on record upon the basis of which it can be reasonably inferred that there in fact existed such bad blood between the witnesses of occurrence and the three prisoners as to induce the witnesses to falsely implicate the prisoners to the exclusion of the real culprits, for it is inconceivable that the witnesses would omit to mention the real culprits and instead mention falsely the prisoners to feed fat the grudge if any. The evidence has clearly proved that whoever were invaders they came in very close contact with the witnesses of recognition two of whom, namely, P. Ws. Raicharan and Sadhucharan had been injured by them and they had therefore, enough time and opportunity to recognize then assailants particularly when they are known persons. There is also sufficient and reliable evidence that there was a burning hurricane in the house of P. W. Radhacharan as well as in the house of Ganesh Chandra (deceased) in the light of which the witnesses were able to recognise the invaders. The witnesses of recognition have been amply supported and corroborated by several witnesses who arrived at the scene of occurrence on hearing the hue and cry. Among these witnesses are P. W. 8 Tafiluddin Sarkar, P. W. 9, Sankar Kamal Sarkar, P. W. Ahmad Ali Pramanik, P. W. 11 Jatindra Nath Sarkar, P. W. 12 Haramba Nath Sarkar, P. W. 16 Sudhir Chandra Pramanik, P. W. 17 Dharani Kanta Pramanik and P. W. Shebak Chandra Sarkar. All these witnesses appear to be independent and disinterested, and some among them belong to the Muslim community. We have found no reason whatsoever to disbelieve them. So far as P. W. 11 Jatindra bath Sarkar is concerned, he too has denied the existence of any party faction in the village over the affair's of a primary school. The witness has admitted that a case under section 411 of the Pakistan Penal Code was started against him for alleged theft of school records falsely. Evidently, however, this case was brought during the pendency of the present case. This witness was merely tendered and we have found no reason to disbelieve the statements he made in course of his cross -examination. On a consideration of the evidence in the case we are satisfied that the prosecution has succeeded in proving beyond any reasonable doubt the occurrence of the offence under section 394 of the Pakistan Penal Code, namely, attempting to commit robbery in course of which hurt was caused to the inmates of the houses wherein the invaders attempted to commit robbery. The evidence has proved that the two occurrences in the houses of Radha Charan and Ganesh Chandra took place almost simultaneously and almost at the same place for the two houses were separated only by a very narrow strip of land called an alley. The action of the invaders also disclosed that they were acting conjointly and their purpose was the same.
So far as the recognition of the persons responsible for the offence is concerned, prisoners Mokbul Pramanink and his brother Abul Pramanik have been identified by the three inmates of the house of P. W. Radha Charan, P. Ws. 2, 3 and 4, and all these three witnesses have been amply corroborated by the neighbours who immediately rushed to the scene of occurrence and heard the names of the assailants from them. Among these witnesses of recognition P. Ws. 2 and 4 were injured by the invaders P. W. 2 was struck by prisoner Mokbul Pramanik with a dagger on his right hand and P. W. 4 Sadhucharan was struck with a lathi by prisoners Abul Pramanik. The Assistant Sub- Inspector of Police P. W. 19 Lutfur Rahman has corroborated P. Ws. 2 and 4 and has stated that he saw the injuries on the persons of Sadhucharan and Raicharan when he went to their house to take preliminary steps on 29‑10‑67 P. W. 14 Md. Akram Hussain, Medical Officer of Dupchanchia Charitable Dispensary, examined P. Ws. 2 and 4 on 30‑10‑67 and found the following injuries on them. On the person of P. W. Raicharan the medical officer found one simple incised wound on the medial side of the right forearm caused by some heavy sharp cutting weapon like a dagger. On the person of P. W. Sadhucharan the medical officer found multiple simple bruises on the different parts of the back caused by blunt and hard substance and also one simple abrosion on the upper lip caused by some blunt and hard substance. We thus find that the medical evidence also fully supports the evidence of P. Ws. 2 and 4. We, therefore, find that the complicity of prisoners Mokbul Pramanik and his brother Abut Pramanik in the aforesaid offence in course of which both of them caused hurt to the victims have been sufficient proved.
As regards the recognition of the condemned‑prisoner Abut Mondal he, too, has been sufficiently and reliably identified by P. Ws. 5 and 6 Bhim Chandra and Anil Chandra and both of them have been corroborated by P. W. 7 Kiron Bala, wife of deceased Ganesh and their neighbours who immediately came to the house of Ganesh. The complicity of this prisoner in the attempted robbery under section 394 of the Pakistan Penal Code in course of which he caused hurt to Ganesh (deceased), therefore, also stands well proved.
Mr. Farid Ahmed has next contended that upon the evidence the condemned‑prisoner Abut Mondal cannot be held responsible for or be convicted of the offence of murder. This contention is based on two grounds, namely, (1) that the prosecution has failed to prove the occurrence of dacoity; and (2) Oat the identity of the assailant of Ganesh Chandra (deceased) has not been proved beyond any reasonable doubt.
As regards the first ground we have already held that what the prosecution has succeeded in proving beyond any reasonable doubt is the occurrence of attempted robbery and not that of dacoity. That being so, the conviction of the condemned prisoner and the other two prisoners under section 396 of the Pakistan Penal Code cannot be sustained. The question, there fore, is what offence if any has been committed by the condemned prisoner if his identity as an assailant of Ganesh Chandra (deceased) be established. This brings us to the consideration of the second ground.
The death of Ganesh as a result of the injuries which he sustained on the date of occurrence has not been disputed. Mr. Farid Ahmad has, however, contended that the nature of the injuries found upon the body of Ganesh Chandra by P. W. 22, the Assistant Civil Surgeon who held the autopsy on the body do not fit in with the nature of the weapon, namely, a dagger. The Assistant Civil Surgeon found the following injuries upon the body of Ganesh Chandra Pramanik:‑
"(1) One incised wound longitudinally from central part of the forehead to volt of skull 5 x " x skull deep. On incision infiltration of blood was found underneath the wound. The frontal and volt of skull were cut including the meninges underneath;
(2) One incise wound obliquely on the occipital region 3 " x ' x. bone deep.
On incision infiltration of blood seen underneath the wound in the soft tissue. The bone and meninges cut underneath the wound;
(3) One transverse gaping wound 3" x 2 " muscle deep on the back of the neck along the base of the occipital bone. On incision, infiltration blood seen in the muscle tissue;
(4) One gaping wound 5" x 1 " x bone deep on the left shoulder transversly. On incision infiltration of blood seen in muscle tissue and spine of scapula was near the acromio clavicular joint ; and
(5) Two abrasions 2" x " each on the left side of the chest. On incision subcutaneous infiltration of blood seen."
In the opinion of the doctor death was due to a shock as a result of the above‑mentioned injuries which were ante mortem and homicidal in nature. The doctor was also of the opinion that the injuries might be caused with sharp cutting weapon like dagger. The defence declined to cross‑examine the doctor. In the first information report in Bengali the word " . . . ." *[Word in Bengali script left over] (knife) has been used. ". . . ." *[Word in Bengali script left over] has been translated as a dagger in the first information report (translation) Exh. 1. Mr. Farid Ahmed has argued that a dagger can only cause stabbing or punctured in injuries. All the witnesses have stated that Ganesh Chandra was injured with a dagger by the condemned‑prisoner. In the evidence before the committing Court the weapon has been described as a, knife. It is, therefore, evident that the identity of weapon has been described as a knife. It is, therefore, evident that the identity of weapon as described in the evidence before the Court of Session has suffered from its translation. Be that as it may, the evidence has proved that the injuries were caused by a sharp weapon presumably of the cutting variety like ". . . "*[Word in Bengali script left over] (a knife). As has been noticed already the Assistant Civil Surgeon who described the injuries of Ganesh Chandra was not at all cross‑examined. It will not be out of place to mention here that the learned Sessions Judge Mr. Muhammad Muhibbul Haque, who held the trial and has translated into English the evidence given in Bengali suffers from inaccuracy of language as the word vestiges for alamats shows. We, therefore, do not find any sub stance in this contention. As we have not relied upon the alleged confession of prisoner Mokbul Pramanik we have not considered it necessary to refer to the contention of Mr. Farid Ahmad as to the admissibility or value of such confession.
P. W. 5 Bhim Chandra saw the assailant of Ganesh Chandra from very close quarters and he has identified the condemned -prisoner Abul Mondal as the person who attacked aril caused injuries to Ganesh Chandra on…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.