STATE Vs. ABDUL KASHEM MEMBER

JUDGEMENT

(1.) Delay by 4 (four) days is condoned.

(2.) The petitioner (State) seeks leave to appeal against the judgment and order dated 10th and 13th August, 2005 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1458 of 1998 allowing the appeal and thereby setting aside the judgment and order dated 14-06-1998 passed by the learned Additional Sessions Judge, 2nd Court, Comilla in Sessions Case No.35 of 1991 convicting the appellants 1. Abdul Kashem Member, 2. Abdur Rab, 3. Joynul Abedin, 4. Mostafa and absconding convict Sultan under Section 302/149 of the Penal Code and sentencing them to suffer imprisonment for life with a fine of Tk. 5,000/- each, in default to suffer imprisonment for 1 (one) year.

(3.) The prosecution case, in brief, is that on 19-09-1989 at about 7.00 a.m. deceased Ful Mia, the elder brother of informant Suruj Mia, on way of going to Elahabad Bazar from their house and when reached at the north west turning of the road to the western side of the boroz of the appellant Joynul Abedin. The appellant-respondent and other accused persons numbering eighteen being armed with dao, ekkaitta, lathi and teta etc. attacked him, who raised alarm saying gvMv gvMv" on hearing his such outcry his brother informant Suruj Mia, uncle Rahman Dafadar, mother Jobeda Khatun, wife Manwara Begum from their house rushed to the place of occurrence 300 yards away, when appellant-respondent Abul Kashem ordered to finish the deceased. At this stage, the appellant-respondent Abdur Rab gave several dao blows on his (deceased) head. Consequently, he fell down on the ground. The absconding convict Sultan gave dao blow below his knee on the left leg. The appellant Mostafa gave ekkaitta blows below the knee of the right leg. The appellant-respondent Joynul Abedin gave a dao blow below the knee of the right leg. The remaining accused persons dealt him indiscriminate lathi blows. Hearing hue and cry, raised by the informant and other witnesses present there, Pw.2 Abdul Malek, father of the deceased, Pw.3, Abdul Kader, Pw.4 Shamsul Hoquc, Pw.8 Rcni Mia, Hanif, Pw. 5 Anu Mia, Aziz and Yeasin Munshi came there running when the accused persons departed. The deceased with severe injuries was shifted to Debidwar Upazila Hospital by the informant and Pw.3 Abdul Kader by the rickshaw of Yeasin. But as his condition was very much critical at the advice of the doctor of that hospital he (deceased) was taken and admitted into Comilla General Hospital, where he succumbed to the injuries at 10.00 a.m. Following night at 11.00 p.m. informant Suruj Mia lodged First Information Report at Debidwar Police Station mentioning the name of 13 persons including the appellant-respondents as accused.