IJJATULLA AKANDA Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal against convictions and sentences under Section 364, Indian Penal Code. The four appellants and two others were placed on their trial on a charge under Section 364, Penal Code, before the Assistant Sessions Judge of Bogra. The jury gave a unanimous verdict in respect of the four appellants to the effect that they were guilty of the offence with which they were charged, and in respect of the other two accused that they were not guilty of the offence with which they were charged. The learned Assistant Sessions Judge accepted the unanimous verdict of the jury, acquitted the other two accused and convicted the four appellants and sentenced them each under Section 364, Indian Penal Code, to undergo rigorous imprisonment for five years.

(2.) The case for the prosecution in brief is that Panaulla (Court witness 1) fell in love with a prostitute named Sushila, persuaded the woman to adopt Islam and then married her in March 1941. Panaulla took this new wife, who after her conversion took the name of Abeda Khatun, to his village home to live in the same bari with his previous wife and with his father and brothers. His father and brothers were annoyed at this conduct and they resented Abeda Khatun's presence in their bari. On Monday 23r.d March 1942, Panaulla left his home for Sarishabari. After he had gone away the accused--Asmatulla Akanda, Nijamuddin Akanda, Ijjatulla Akanda, Sonaulla Akanda, Abedali Akanda, and Majibar Rahman Sarkar together with another man named Akamuddin Pramanik seized Abeda Khatun and carried her forcibly away from the bari. In doing so one or other of the assailants kept his hand on Abeda Khatun's mouth and the others squeezed her throat. They carried her away some distance to the river bank. Thereafter they returned home and Abeda Khatun was never again seen alive. Certain of the villagers were witnesses to the carrying away of Abeda Khatun.

(3.) Some days later two of the accused persons were observed scattering sand with their feet at a place on the river bank near the burning what. The man who saw them became suspicious and informed others about what he had seen. Information was given to the police and ultimately a search was made at the place where Malekuddin Fakir had seen these accused scattering the sand. Prom that spot the body of a female was disinterred. People of the village identified the body as that of the missing woman Abeda Khatun. The body was sent for post-mortem examination and the doctor who held the post-mortem examination was of opinion that death was due to asphyxia and that it was a case of homicide. On these materials a charge under Section 201 read with Section 120B, Indian Penal Code, was framed by the committing Magistrate and seven persons were committed to the Court of Session. The learned Sessions Judge of Pabna and Bogra transferred the case to the file of the Assistant Sessions Judge of Bogra for disposal apparently without having read the actual charge. The actual charge framed by the committing Magistrate was that the seven accused persons conspired to murder Abeda Khatun and to conceal the evidence of the murder. The committing Magistrate ought to have described the charge as a charge under Section 302/120B and under Section 201/120B and not merely one under Section 201/120B; and if he had done so probably the case would not have been sent to the Assistant Sessions Judge for trial.