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Petition for Special Leave to Appeal No. 97‑D of 1969, decided on 19th June 1970.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 23rd July 1969, in Criminal Appeal No. 512 of 1965).

-------S. 302/34‑Murder‑Witness Evidence‑Each accused named and identified as participant in crime by a number of witnesses including some disinterested persons Contention that some witnesses did not name some of accused persons, held, not of much consequence, in circumstance.

-------S. 302/34‑Murder Sentence‑Accused perpetrating diabolical crime of roasting a. man alive.‑Mere age cannot be an extenuating circumstance‑High Court's action in maintaining conviction of accused for trans portation for life and not thinking fit to issue rule for enhancement of sentence, held, surprising.

Pramode Ch. Bose, Advocate Supreme Court instructed by B. C. Pandey, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing : 19th June 1970.

‑The 17 petitioners in this case were tried on charges under sections 147, 148, 302/34 and 436/34 of the Penal Code. Except petitioner No. 1 the rest were all convicted under section 147 and sentenced to pay a fine of Rs. 200 each. The petitioner No. 1 alone was convicted under section 148 and sentenced to rigorous imprisonment for one year. The petitioners Nos. 1, 2, 3 and 4 were further convicted under section 302/34 and sentenced to transportation for life each. The petitioners Nos. 1 and 5 to 13 were convicted under section 436/34 and sentenced to rigorous imprisonment for two years each. The petitioner No. 1 was also convicted under section 325 and sentenced to rigorous imprisonment for one year.

On appeal, the High Court set aside the conviction of the petitioner No. 1 under section 148, but maintained all the other convictions and sentences. The petitioner No. 1 was convicted under section 147 and sentenced to pay a fine of Rs. 200 or in default to suffer rigorous imprisonment for six months.

They have now come up for special leave to appeal and the main contention advanced on their behalf is that the High Court has not applied its independent mind to the facts of the case nor made its own independent assessment of the evidence against the petitioners.

The case against the petitioners was that on the. 17th of April 1963, a meeting was held at about noon time in he field of the local primary school of village Amrail, . Police Station Dhamrai in the district of Dacca, to consider the question of suppression of theft in the locality. This meeting was attended by a large number of persons, including the informant, Nayeb Ali, and his aged father, Hajee Abed Ali Munshi. Nayeb Ali spoke at this meeting and advised the people not to take the law into their own hands. This roused the temper, of some of the members of the audience and the petitioner, Jabed Ali Sarang, who was the Secretary of the Local Peace Committee, which had organised the meeting. He ordered his co‑accused to beat Nayeb Ali and his father. Both of them fled from the meeting. Hajee Abid Ali Munshi took shelter in the house of one, Madari. The pursuers caught him there, dragged him out into the courtyard and beat him with rollers so severely that they broke eight of his teeth. Thereafter, the petitioners thinking that Abid Ali was dead decided to set fire to his house and did so in spite of the entreaties of his wife. After the house was set on fire one, Sonamuddin, who was present near the house, was attacked, beaten and then under the orders .of the petitioner, Jabid Ali, thrown alive into the fire. He managed to jump out of the fire and begged the petitioner, Jabid ,Ali, for mercy with folded hands but the petitioner did not relent and one of his companions struck him on his head with a lathi and felled him again into the fire where he was kept pressed down with a log of gazari wood until he was burnt to death.

The information of the incident was lodged by Nayab Ali at ‑6‑00 p.m. of the same day and after investigation 29 persons were 1 charge‑sheeted.

The petitioners did not deny the occurrence but they denied their participation in it. According to them; a very large number of persons present at the meeting had attacked Nayeb Ali, the informant, and his father, and it was not possible for any one to know as to who had assaulted them. The petitioners claimed that they had been falsely implicated, due to previous enmity, by the father of the informant, as he was himself a receiver of stolen properties.

It is true that at one place in the judgment the learned Judges of the High Court have said that they have been furnished with a chart of the evidence in the case showing the witnesses who had implicated the different accused persons in respect of the different charges framed against them but this does not mean that the High Court did not itself consider the relevant evidence against each individual accused. The chart was only to assist them in assessing the evidence, which has been fully discussed by the High Court 'while considering as to how far the prosecution had managed to establish the identity of the persons participating in the incident.

The contention that some witnesses had not named some of 'the accused persons is not of much consequence, for, each of the accused persons has, in fact, been named and identified as a participant in the incident by a number of witnesses, including some disinterested persons. We do not, therefore., think that the, complaint made by the learned counsel against the learned Judges of the High Court is, in any way, justified. Both the Courts below have found the accused‑petitioners guilty ‑after careful examination of the evidence and we see no reason to disagree with their conclusions.

We are, however, surprised that in such a case of a gruesome 'murder only a sentence of transportation for life was imposed by the trial Court. The reason given by the learned Sessions Judge for not imposing the sentence of death is that out of the four accused convicted under section 302/34 Jabid Ali is 67 years old, Abdul Molla is 75 years old, Bara Geda is 50 years old and Afajuddin is 25 years old. We do not think that this is a sufficiently valid reason for not imposing the maximum sentence for such a cold‑blooded murder. No matter what their age if they in fact perpetrated such a diabolical crime of roasting a man alive, then mere age cannot be an extenuating circumstance. We are still more surprised that the High. Court did not, in a case of ‑this nature, think it fit to issue a rule for enhancement of sentence. But since there is no application before us either by the State or by the private informant for enhancement of sentence, we do not desire to say anything further on this question.

This petition is, however, dismissed.

Leave refused,

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