KADIRA Vs. EMPEROR

JUDGEMENT

(1.) This is a reference under Section 374, Criminal P.C. by the learned Sessions Judge of Chittagong in a case in which the appellant before us named Kadira alias Abdul Kadir was tried along with five others before him and a jury under various sections of the Indian Penal Code. The appellant Kadira was charged with having committed offences punishable under Sections 302 and 120-B/302 I.P.C. The five other persons who were tried along with the present appellant and who were acquitted by the jury were charged under Secs.302/102-B and 302/109 I.P.C. As regards the appellant, the jury brought in a verdict of not guilty under Secs.302 and 302/102-B and a verdict of guilty by 4 to 3 under Secs.302/109, I.P.C. The learned Judge accepted the verdict of the majority of the jury under Secs.302/109, I.P.C. and sentenced the appellant to death. In his letter of reference to this Court the learned Judge states that in his opinion the evidence on the record is sufficient to justify the conviction of the appellant under Section 302 read with Section 109, I.P.C., and that in the circumstances of this case he had no alternative but to sentence the appellant to death.

(2.) Now, the case for the prosecution, shortly stated, was as follows : It appears that at the instance of one Iasinali, one Anu Boli and some others were charged under Section 304, I.P.C., on the allegation that they had caused the death of Iasinali's brother Azimuddin. After the preliminary investigation a charge-sheet was submitted against the accused in that case and they were committed to the Sessions. One Kumud Ghosal was taking an active interest in the prosecution of that case and was assisting Iasinali. It is alleged that he was approached by Anu Boli, among others, with a view to arrange some sort of compromise of that case. Kumud Ghosal was not inclined to favour the compromise, but Iasinali, it is said, was not unwilling to effect a compromise. Be that as it may, the attempted compromise fell through.

(3.) Some days thereafter Kumud Ghosal and one Asmat Ali, along with two others named Amir Hamza, who is a brother of Iasin Ali, and Isaf Ali, set out for Cox's Bazar in the district of Chittagong. The four persons named above met at the Ferry Ghat at Balukhali and from there onwards they travelled together. They got out of the boat at a place called Tambru Ghat and from there they set out by road to Cox's Bazar. The road to Cox's Bazar passes after the dak bungalow at Ukhia through some dense jungle and thereafter the road rises for some distance and then continues on the level again. After passing this rise, the four persons named above began to pass along the higher level of the dhala; Kumud Ghosal was leading and the other three were following him. There was a gun with Kumud Ghosal; it was being carried by Asmat Ali. After they had passed some distance over the level road, a gunshot was heard from the direction of the west and it was found that Kumud had been shot on the left side. He fell down exclaiming that Kadira had shot him. The men who were with Kumud Ghosal, namely, Asmat Ali, Amir Hamza and Isaf Ali, turned their eyes towards the west and it is said that they saw a gun being withdrawn into the jungle, smoke rising and Kadira's head was peering-out over the jungle growth. It is also said that these three persons also saw Anu Boli. Anu Boli, it is said, gave an order to seize the three men and thereupon a number of men came out of the jungle and advanced upon the men who were accompanying Kumud Ghosal. These latter fled in terror towards the north. They ran for some distance but when they found that the people who had been chasing them had gone away, they returned to the place where Kumud Ghosal lay and found that other passengers from the boat which stopped at the Ferry Ghat had gathered round Kumud Ghosal. When they returned they spoke to Kumud and it is said that each of the three men told Kumud that they had recognized the men who had attacked. Kumud told them to go and inform the police. One of the three men, namely Amir Hamza, went to the police station where he lodged the first information. This was about 3:30 p.m.