Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Death Reference No. 1 of 1954 and Criminal Appeal No, l of 1954, decided on 4th February 1954.
)----
--S. 274‑Accused tried for an offence punishable with death‑Seven jurors impanelled‑In absence of anything on record to show, it was not practicable to obtain more‑Jury whether can be said to be properly constituted.
Where an accused person charged with an offence punish able with death has been tried with seven jurors, it must be assumed that it was not practicable to have nine jurors, unless there is an indication on the face of the record itself or there is other material before the Court which leads to the conclusion that it was or might have been practicable to have the jury composed of nine jurors rather than seven.
In the absence of anything on the record to satisfy the Appellate Court that it was practicable to have more than seven jurors, it must be assumed that section 274 of the Criminal P. C., had been complied with.
Shahebali Sheikh and others v. Emperor 35 C W N 711 dissented from.
Asgar Ali Mandal and others v. Emperor A I R 1945 Cal. 467 and Emperor v. Benat Pramanik and 3 others 39 C W N 954 followed.
Abdus Sattar for Condemned Prisoner.
Salahuddin Ahmed, Deputy Legal Remembrancer for the Crown.
‑Reference No. 1 of 1954 is a Reference under S. 374 of the Code of Criminal Procedure by Mr. A. Rabbani, Sessions Judge of Bogra. He asks the Court to confirm the sentence of death passed by him on one Osi alias Osimud din Mondal on the 26th of December 1953. Criminal Appeal No. 1 of 1954 is the appeal of the condemned prisoner Osi alias Osimuddin Mondal against his conviction and sentence. The Reference and the Appeal have been heard together for the sake of convenience and. are now disposed of under this one judgment.
The prisoner and his two brothers, Sali alias Salimuddin Mondal and Mazi alias Mazibar Mondal were placed on trial before the learned Sessions Judge and a Special jury of seven on a charge under sections 302/34 of the P. P. C., for that along with 7 or 8 other unknown persons on the 12th of September, 1952, they committed murder by intentionally causing the death of one Moizuddin Akanda in furtherance of the common intention of them all. The jury returned an unanimous verdict finding the two co‑accused not guilty but finding the prisoner Osimuddin Mondal guilty under sections 302/34 of the Code, and in accordance with that verdict, the learned Sessions judge convicted him and sent enced him to death.
The condemned prisoner has been represented before us by Mr. Abdus Sattar, while the learned Deputy Legal Remem brancer, Mr. Salahuddin Ahmed, has appeared for the Crown.
The case for the prosecution is that on the night of the 11th of September, 1952, Moiz Akanda, an elderly man of 56, went to sleep in their south‑facing khanka but in the outer yard. In the same but there slept a young student 16 or 17 years of age, by name Ismail Hossain, who used to study in the Korai Madrasah. He has been described in the case as the 'talbilim'. Meseruddin Akanda, son of Moizuddin Akanda, a young man 20 or 25 years of age, slept in the west facing but along with his wife, Momena Khatun, 17 or 18 years of age. His younger brother, Momtaj Akanda, slept in the south bhiti but facing the north. His mother and sister Tafizannessa slept in the south‑facing hut.
On the night in question Moizuddin Akanda retired to bed before Ismail Hossain, who was sitting up reading by the light of a hurricance lamp When he was ready to retire, he, first of all, had some conversation with Moizuddin and then composed himself for the night. After some time Moizud din got up, opened the southern door in order to go out and relieve nature and then came back again but omitted to close the door from inside. He kept the hurricane lamp burning near a wooden box in the room, and after conversing for some, time, Moizuddin Akanda and Ismail Hossain both fell asleep. They had slept for a short space estimated at two hours when Ismail Hossain heard a knocking sound on the door of the hut. It was then about midnight or 1 a.m. Ismail Hossain was frightened at the noise and got out of bed and he saw a man enter into the but with a dagger (chhora) in his hand. He recognised him to be the prisoner Osi. Some ten or twelve other persons also entered the ghar, some of them carrying lathis, some daos, some daggers and some rulers. Ismail Hossain began to shout and tried to get out through the western door. He was unable to escape, as the door was closed. He was beaten from behind and fell on the ground, as four persons caught hold of him. Three or four persons caught hold of Moiz Akanda and one person cut his throat with a dagger. Then he saw the blood spouting out, Ismail fell unconscious and did not regain his senses until mid‑day next day. The alarm given had attracted the attention the other inmates of the house and Moizuddin's two sons, Meseruddin Akanda and Momtaj Akanda, with their women folk ran to his but. They found the southern door of the khanka ghar open and by the light of the hurricane lamp burning inside the khanka, Meseruddin was able to see that five or six persons had caught hold of his father and three or four persons had caught hold of Ismail Hossain. The prisoner Osi alias Osimuddin Mondal was one of those who was holding a dagger and Meseruddin saw him cutting his father's throat with the dagger, as his father lay on the chowki. Morntaj Akanda also came near the khanka ghar and saw the prisoner assaulting his father. Tafizannessa, Moizuddin's twenty‑sear old daughter, followed her brother Meseruddin and heard her brother cry out from near the door of the khanka ghar that their father was being killed. At this, the prisoner Osimuddin shouted out that the shala should be killed as he was crying out. At this, Meseruddin fell back, and when the eight or nine persons emerged from the khanka ghar, Tafizannessa was able to identify the prisoner Osimuddin 'as one of them. Meseruddin's wife Momena Khatun followed Momtaj who himself 'followed Meseruddin Akanda to the khanka ghar. She also heard her husband crying out that his father was being killed and she heard the prisoner Osimuddin calling out that the shala should be killed as he was raising an alarm.‑ At this, her husband fell back and when the intruders emerged from the khanka ghar, she was able to identify Osimuddin who was carrying a dagger.
Villagers assembled on the alarm given by Meseruddin Akanda, amongst them, Isharat Ulla Mondal, Kasem Ali Fakir and Fayez Mistri. To them Meseruddin related what had happened and gave the name of the prisoner Osimuddin. After they had arrived, Meseruddin and the other relatives of Moizuddin Akanda entered the khanka ghar and found Moizuddin lying on the floor below the chowki on which he had slept. He had injuries on his neck and arm and was lying dead. There was blood on the northern wall of the hut, blood on the beddings and pillow and blood on the floor of the hut. Ismail Hossain was lying unconscious on the floor. He was taken inside Meseruddin's own house acid they tried to revive him by pouting water on his head but were unsuccessful. He did not regain his senses that night.
Meseruddin went to the Joypurhat Police. Station, three miles away and there lodged an information at 10 a.m. on the 12th of September, 1952. The Police promptly took up the investigation of the case, held an inquest on the dead body of Moizuddin Akanda at 1‑30 p.m. on the 12th of September, 1952, and sent it up for a post‑mortem examination. The post mortem examination was held on the next day by Sahadat Ali Khan, the Medical Officer‑in‑charge of the Sadar Hospital at Bogra. The Police investigation followed its normal course and ultimately Osimuddin was placed in the dock in order to stand his trial along with his co‑accused on a charge under sections 302/34 of the Penal Code.
In the Court below the defence was taken that there was no such occurrence at all at the time and place, as stated by the prosecution. It was, however, suggested that Moizuddin Akanda was a hot‑tempered man who had many enemies any one of whom might have murdered him elsewhere. It was even suggested that Meseruddin himself was not on good terms with his father and might well have murdered him. It was claimed by the defence that no one was able to recognise Moizuddin's assailants and the prisoner Osimuddin and his co‑accused were all implicated falsely out of suspicion by reason of previous enmity subsisting between the parties.
Mr. Abdus Sattar has advanced arguments to us on several points, the first of which in its logical sequence touches the constitution of the Court by which the prisoner was tried. The order‑sheet shows that the Sessions trial was held with the aid of a Special jury of seven. The first entry in the order -sheet shows:
"Special Jurors.
The following jurors were chosen by lot:
Foreman : ‑‑
Maulvi Halem Ali,
Jurors :‑
Ahmed Nachhamatullah,
A. S. M. Kalim,
Muhammad Solaiman,
Mandal Samser Ali,
Ahmed Tasiruddin,
Jamiruddin.
* * * * * *
1. 21st December 1953‑Accused are present. Name of each Jurors served in this case is called aloud by lot. The accused and the Public Prosecutor were asked if they have any objection to be tried with such Jurors. No objection is raised to them. The persons mentioned on the overleaf are empanelled and they are allowed to sit on the dias (dais). Maulvi Halem Ali is selected by the jurors themselves Then usual oath is administered to them".
Mr. Abdus Sattar cites before us the case of Shahebalz Sheikh and others v. Emperor (35 C W N 711). The case was one which was decided on the 30th of January, 1931, and the head-note is to the following effect:
"The second proviso to section 276 of the Criminal P. C. which provides for the making up of deficiency in jurors from among persons other than those summoned, present in Court, applies to Special juries as much as to common juries . . . . . Consequently, when an accused person is tried for an offence punishable with death by a Special jury but less than nine Jurors and there is nothing to show that the judge applied his mind to the possibility of having nine jurors by the application of the above method, section 274, proviso, is not found to have been complied with and the trial must be held to have been bad".
In rebuttal the learned Deputy Legal Remembrancer relies on the case of Asgar (Ali) Mandal and others v. Emperor (A I 81945 Cal. 467). In the head-note it is recorded:
"It is desirable that where less than nine Jurors are empanelled on a murder charge, the order‑sheet should show expressly that the judge considers it not practicable to obtain more, but a failure to note this in express terms can not be fatal to the proceedings. Moreover, the proper time for objection to be taken that further Jurors are available and that it is practicable to obtain nine persons is at the time when the jury is being empanelled, arid if an appellant desires to make a substantial objection on this ground. his petition should indicate that at least there are materials to substantiate his case that it was so practicable. It is also desirable that the attention of the Court should be drawn to this matter when the application for admission of appeal is moved in order that if necessary an explanation may be obtained from the trial judge. In a trial on a murder charge 18 Jurors were summoned of whom only seven attended. Out of these seven, objections were made with respect to two while another was excused on the ground of illness ; the remaining four were empanelled and then three other gentlemen were found in the Court precincts whose names appeared in the list of Jurors, and they were duly sworn in as Jurors. The order‑sheet did not in terms state that it was not found practicable to find two other Jurors. On the other hand, there was nothing to show that the accused themselves made any objection or alleged that suitable persons were available so that it might be practicable to form a jury of nine persons:
"Held, that the jury was properly constituted as the facts showed clearly that it was not practicable to obtain more jurors".
On this question, there is another case that of the Emperor v. Benat Pramanik and 3 others (39 C W N 954). The decision given in this case is a decision of a Special Bench of three Judges, Costello, Panckridge and M. C. Ghose JJ. The hea-dnote shows:
"Where an accused person charged with an offence punishable with death has been tried with seven jurors, it must be assumed that it was not practicable to have nine jurors, unless there is an indication on the face of the record itself or there is other material before the Court which leads to the conclusion that it was or might have been practicable to have the jury composed of nine jurors rather than seven."
The decision in this case of Benat Pramanik was mentioned with approval by their Lordships of the Judicial Committee.
This will be found in B. B. Mitra's Code of Criminal Procedure in the notes on section 274 of the Code of Criminal Procedure at page 883.
"Their Lordships of the Judicial Committee have, very recently, confirmed this view of the Calcutta High Court. In this connection Lord Wright, J. observed : There has been some difference of judicial opinion as to the true effect of section 274, but the more recent and, in their Lordships, opinion, better view is that adopted in Benat Pramanik, which is that if the Judge proceeds with seven Jurors, it must be assumed, in the absence of anything on the record to satisfy the Appeal Court that it was practicable to have more than seven Jurors, that section 274 had been complied with."
In the present case, apart from the fact that there are on record applications from six jurors asking to be excused service on the ground of illness, there is nothing to show that it was practicable to empanel a jury of nine. In these circumstances, following the decision in the case of Benat Pramanik which has been approved by the Privy Council, we must find that there is no substance in Mr. Abdus Sattar's objection that there has been a violation of the provisions of section 274 of the Code of Criminal Procedure.
In its logical sequence, the second point taken by Mr. Sattar touches the order of the learned Sessions Judge, dated the 24th of December, 1953, in which he refused a defence prayer for accepting certain documents in evidence. The order is Order No. 4, dated the 24th December, 1953.
"Accused are produced. Pleaders are present. Hearing resumed. The defence lawyer files a petition along with certain documents praying for admission of the documents filed to‑day and for taking deposition of one Abdul Rashid for the purpose under section 540. Criminal P. C. Heard Pleaders and the P. P. At this stage after the arguments of the P. P. the documents cannot be admitted in evidence. Return the document to the filing Pleader. The petition is rejected vide order passed on the application".
We are in complete agreement with the learned Sessions judge that at that stage of the case it was impossible to accept the petition and the documents sought to be put in evidence after the Public Prosecutor had concluded his address to the Jury.
Touching the conduct of the trial, Mr. Sattar claims that the statement of the prisoner made under section 342 of the Code of Criminal Procedure was not properly placed before the jury and in particular, a certain matter mentioned therein was not placed at all. When the learned Sessions judge came to comply with the provisions of section 342 of the Code of Criminal Procedure, he asked the following question of the prisoner:
"The charge against you is under sections 302/34.P. P. C. that after midnight on Thursday, the 26th Bhadra 1359 B. S., you along with the two brothers of your and 6/7 persons more, with common intention, murdered Moyez Akanda and you have heard the prosecution evidence to that effect. What is your defence "
In answer the prisoner stated:
"I am innocent. Moyez Akanda cultivates 10/12 bighas of land and Ishratulla cultivates 10/12 bighas of land of my maternal uncle, Reaz in 'Adhibarga'. We took 'pattan' of the Barapukur about 7/8 years ago from Fate Sing Nahar. I gave annas 5‑5 pies share of land to my maternal uncle Reaz during the last 'Ramzan' according to the advice of my mother. Bahar, the son of my elder maternal uncle, lives in our house. We left him at the house of Reaz. Bahar again came to our house. Bahar was given 6 bighas of land in accordance with the decision made by the villagers. Bahar lives in our house. Our maternal uncle in collusion with Ishratulla caught fishes in the Barapukar. We obstructed Ishratulla but as a co‑sharer my maternal uncle Reaz did not do the same. Ishratulla and Reaz conspired to take half of that pond. I have quarrels and disputes with my maternal uncle and Ishratulla. We did not murder Moyez Akanda. We have been made accused by my maternal uncle and Ishratulla. We do not claim the land executed to Moyez by my maternal uncle. I shall not say any more".
Incidentally the prisoner in his statement ‑under section 342 makes no mention of the plea of alibi which he takes in his petition from the Jail, where he says:
"That on the night of occurrence your humble petitioner was 'at Joypurhat for business purposes and solemnly declare ( ) that he did nothing wrong".
There is no mention at all of this plea in the Sessions trial.
It is difficult to hold that the learned Sessions judge did not mention the Barapukur to the jury. As a matter of tact, he does so in two places. Speaking on page 35 of the Paper Book of the evidence of Foyez Mistri and Kasem Ali Fakir, the learned Sessions Judge told the Jury: "Therefore, you find that the maternal grandfather of the accused is father‑in- law of the brother of Ishratulla. The defence suggested that the accused had a dispute with Ishratulla and other co‑sharers over possession of the Barapukur. But the sugges tion was denied by the witnesses. Sali and Osi have also stated before you that they had dispute with Ishratulla over the Barapukur. The witnesses have admitted before you that Ishratulla and others did not allow the accused to steep jute into the waters of the tank as it is situated near their house". On the same page the learned Sessions judge speaking of the evidence of P. W. 8 Ishratulla says; "I have already told you that this witness is a relation of the accused party. He has denied before you that he had any dispute with the accused over the possession of the Barapukur". P. W. 9 Kasem Ali Fakir spoke of it during his examination before the Sessions Court and stated in re‑examination that the suit over the tank was compromised.
No other point has been taken before us touching any mis‑direction or non‑direction in the charge delivered by the learned Sessions judge, and we cannot hold that what has been criticised has in any way vitiated that charge.
Touching the merits of the case, Mr. Abdus Sattar claims that the occurrence did not take place at the time, as stated in the prosecution version. It is no longer in dispute that the occurrence took place in the khanka ghar. The finding of blood on the northern wall, on the chowki and on the floor, seems to us clearly to establish that Moizuddin Akanda was murdered inside the khanka ghar.
Mr. Abdus Sattar, however, claims that he was not murdered at midnight or in the early hours of the 12th of September, 1952, as is proved by the evidence of the Doctor who held the post‑mortem examination. This Doctor is P: W. 1 Sahadat Ali Khan, the Medical Officer‑in‑charge of the Sadar Hospital at Bogra. His last statement in cross -examination was: "The man died not exceeding 20 hours before post‑mortem examination." The post‑mortem examina tion was held at 12‑30 p.m. on the 13th of September, 1952. If the statement of the Doctor is to be accepted at its face value then Moizuddin Akanda must have died not before 9‑30 p. m. on the 12th of September, 1952. The Officer‑in charge of Joypurhat Police Station went out on receipt of a First Information and held an inquest on the dead body of Moizuddin Akanda. The inquest was held at 13‑30 hours of the 12th of September, 1952, i.e., 1‑30 p.m. If Mr. Sattar's argument be accepted, then the Officer‑in‑charge held an inquest on a living body, three hours before the time of death as estimated by Dr. Sahadat Ali Khan. The argument clearly cannot hold water and indeed, Dr. Sahadat Ali Khan's estimate that Moizuddin Akanda must have died within 20 hours before the post‑mortem examination, is merely an erroneous opinion on his part.
The next point taken by Mr. Sattar touches the identi fication of the prisoner Osimuddin Mondal as one of Moizud din's assailants. According to the prosecution story, there was a hurricane lamp burning inside the khanka ghar. Mr. Sattar relies on the fact that this hurricane lamp is not mentioned in the First Information Report and that the evidence with regard to its actual position inside the hut, is discrepant. It is true that there is no mention in the First Information Report of. the hurricane lamp but we are satisfied on a reading of the evidence before us that there was a hurricane lamp and it actually was alight. Ismail Hossain, the resident student in Moizuddin Akanda's house, deposed that on that night after Moizuddin had retired to bed, he stayed up reading by the light of a hurricane lamp. After sometime he composed himself to go to bed and Moizuddin got up from bed, opened the southern door in order to answer a call of nature and then returned to bed, keeping the hurricane lamp burning. In his deposition Ismail Hossain stated: "After answering call of nature he came back. He shut the door but did not bolt it from within. He kept the burning lamp near wooden box and went to bed." This statement Mr. Sattar places side by side with the evidence of P. W. 2 Meseruddin Akanda who stated that the lamp was on the northern side of the ghar and the statement of P. W. 4 Tafizannessa that the lamp remained on the wooden box argues that as there is this discrepancy and as there is no mention of the hurricane lamp in the First Information Report, it ought to be held that there was no light at all. We do not agree. We do not think that there is any real discrepancy between the statements of the three witnesses. It is not a serious divergence when one of them says that the light was kept on the box and the other says that it was kept near the box and neither of the two statements was inconsistent with the statement of Ismail Hossain that the lamp was kept on the northern side of the ghar Tafizannessa deposed that the lamp was kept burning until sunrise and after sunrise it was put out.
Holding as we do that there was a means of identification in the presence of the hurricane lamp, it remains to be seem whether the evidence of actual identification can be accepted as sufficient to support the conviction of the prisoner. In this connection Mr. Sattar's main attack is on the evidence of Ismail Hossain and Ismail's plea that when he saw Moizuddin's throat cut, he lost his senses at the sight of the blood and did not recover them until noon of the next day. Mr. Sattar claims that even accepting the story that Ismail, a youth of 16, fell senseless when he saw the blood spouting from Moizuddin', throat, there is no explanation of his failure to tell the Daroga subsequently of his recognition of Osimuddin. His explana tion is, of course, to be found on page 12 of the Paper‑Book. "I was threatened by the people of the para of the accused and I was unwell, so I did not tell the Daroga about my recognition of the accused". He also stated in the opening sentence in cross‑examination that he was not examined by the Daroga he was unwell. "On the day the Daroga came, I was not examined by him, as I was very unwell." Foyez Mistri, P. W. 7 in his cross‑examination admitted that Ismail had told them about his recognition of the prisoner Osimuddin before the arrival of the Daroga. If the evidence of Foyez Mistri is to be accepted, then nothing prevented Ismail from giving out the name of Osimuddin to the people present before the arrival of the Daroga, and if he was prepared to divulge the name then there is no explanation of his failure to do so before the Daroga.
In these circumstances, we find it difficult to place reliance on the evidence of Ismail Hossain. There is, however, the evidence of the two sons of Moizuddin Akanda, Meseruddin and Momtaj Akanda, and we see no reason at all to disbelieve that evidence. We have already stated that they arrived on the scene after the alarm was given and Meseruddin particularly took his stand at the southern door of the khanka ghar and from that position he was able to see what was happening inside the ghar. Mr. Sattar points out a discrepancy in that Meseruddin stated in evidence that he heard the cries of his father and of Ismail and so does Momena Khatun, P. W. 5 in her examination in the Committing Court. The evidence of Ismail, of course, is that Moizuddin did not wake up before the attack was delivered upon him and so, did not raise any cries at all. We do not think that this is a serious discrepancy; nor do we think that it was impossible for Meseruddin and Momtaj Akanda to see what was happening inside the khanka ghar. There was the hurricane lamp there on the northern side of the ghar. It would provide illumination for what was happening on the chowki on the northeast side and when the witnesses say that by its light they were able to recognise the prisoner Osimuddin Mondal in the act of striking Moizuddin in the neck with a dagger, we find no reason at all to disbelieve them. As the appellant was a known figure, we feel no difficulty in believing that the two sons of Moizuddin would be able to identify him in the number of persons attacking Moizuddin Akanda inside the khanha ghar. It is suggested that there is no explanation as to how the body was found on the floor opposite the door by the Investigating Police Officer if, according to the evidence of the witnesses, the attack on Moizuddin Akanda took place on the chowki itself. We find no difficulty in accepting that after the attack it was quite possible for Moizuddin to roll of the chowki and to be found in the position where he was found by the Police Officer. Similarly, we see no reason to disbelieve the evidence of Tafizannessa, P. W. 4 and Momema Khatun, P. W. 5 that they identified Osimuddin as he emerged from the but after striking Moizuddin Akanda in the throat.
The medical evidence shows that there can only have been one intention behind the act which caused the death of Moizuddin Akanda and that was an intention to murder. Dr. Sahadat Ali Khan deposes that he found an incised wound 7 " x 1 ' x 3" deep on the right side of the neck extending from a part on the anterior mid‑lines of the neck " below the lip of the thyroid cartilage and running backwards straight across the right side of the neck and ending at a point " to the right of the posterior mid‑line of the neck 4 below the external occipital protuberance. On special examina tion extravasation of blood was found in the tissues around the cut mark. All the soft tissues on the right side of neck, namely, right half of the larynx with thyroid cartilage, the carotid sheath containing the common carotid artery internal jugular vein and vague nerve, the right pherenic curve and all the muscles of the right side of the neck were severed. The body of the fourth cervical vertebra was cut through. The person who inflicted a blow which caused this injury cannot conceivably have had any other intention than killing his victim.
In these circumstances, we accept the Reference under section 374 of the Code of Criminal Procedure and confirm the sentence of death passed on the prisoner Osi alias Ositriud din Mondal. His appeal against his conviction and sentence is dismissed.
.‑I agree.
K. B. A. Reference accepted : Appeal dismissed,
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer