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Strong ingredients of offence needed to frame charges
(Criminal Appellate Jurisdiction) Syed Md. Ziaul Karim and A.N.M.
Bashir Ullah, JJ
Swapan Kumar Majumder
Suspicion or doubt however. strong, is not enough to draw an inference of guilt.
It is clear that the offences under Section 326A of the Penal Code are quite specific and distinctive having specific ingredients, and keeping in view the above distinguishing features and ingredients of the offence under Section 326A of the Penal Code, if we examine, in the light of the evidence on record and the facts of the case, the propriety and legality of the impugned judgment, we cannot but hold that the impugned judgment and order of conviction and sentence under Section 326A of the Penal Code is wholly bad, illegal and unwarranted by law and facts and the same must be set aside. Further, it may be noticed that the trial Court in its judgment nowhere has come to any finding that the victim Puspa Rani has sustained any permanent privation of her eyes either by gouging out the same or by means of any corrosive substance or the victim has suffered by permanent disfiguration of her head or face by any corrosive substance. It is also curious that the prosecution has not even made out a case of such permanent privation of the eyes or permanent disfiguration of the head or face of the victim by any corrosive substance and also there is no iota of reliable evidence on record to establish such ingredients of the offence under Section 326A of the Penal Code. In this regard reliance can be placed in the case of Alamgir vs State reported in 1992 BLD 472. So, in view of the facts and circumstances of the case, the prosecution miserably failed to prove the charge under Section 326A of the Penal Code against the appellant and, as such, he is entitled to be acquitted. (Para-23)
It is pertinent to point out that the victims as well as their parents and uncle failed to recognise the assailants who specifically hurled acid upon the victims. They only found the assailants from back that they were departing. It is well settled suspicious or doubt however strong it might be, it cannot take the place of evidence, if there be any want of legal evidence or there be slight doubt as to the involvement of the accused in the crime and suspicion, however strong, is not enough to draw an inference of guilt. In this regard reliance are being placed in the case of Fazlul Huq Vs. State 1 BLC-558. Kayembuddin (Md.) Vs. State 14 BLC 59. Rehatullah Vs. State, 13 DLR 750 and the case reported in 1962 PLD(Dhaka)261.
Mrs. Joya Battacharia, Advocate, For the appellant.
Mr. Md. Moniruzzaman, A.A.G. with Mr.
Kazi Mahmudul Karim, A.A.G. For the respondent.
Judgment delivered on 03 February, 2011.
Syed Md. Ziaul Karim, J: By this appeal, the convict appellant has challenged the legality and propriety of Judgment and order of conviction and sentence dated 26-08-1990 passed by learned Additional Sessions Judge, Pirojpur, in Session Case no. 29 of 1989 convicting the appellant in absentia under Section 326A of the Penal Code and sentencing, him to suffer imprisonment for life.
2. The prosecution case as projected in the First Information Report and unfurled at trial are that on 29-02-1988 at 17.00 hours Pushpa Rani Barai (P.W.2) and Kajal (P.W.5) daughters of Shasi Kumar Barai (P.W.I) were combing hairs near the eastern side window of their tin-shed Chouchala dwelling hat. At that time accused Swapon and Sudangsu were standing outside who suddenly hurled acid causing burning injuries at the chin, back, chest, left and right hands of Pushpa Rani. Kazal also received burning injuries. Having had heard the screaming their father, mother (P.W.4), uncle Sukumar (P.W.6) rushed to the spot and found the accused were departing. They heard the incident from victims who were given first aid by the local Dr. Sukhoranjan (P. W.3) and Dr. Jadab Chandra Roy (P.W.9). Then, on 01-03-1988 victim Pushpa Rani was taken to Najirpur Hospital in critical condition wherein she undergone treatment for about four months. Thereafter she was referred to Dhaka for better treatment at the instance of Hon'ble President. P.W.1 heard that accused Nitta Nanda Majumder collected acid from Banaripara and delivered it to accused Swapan. It was reported that the accused wanted to develop an illicit extramarital relation with the victims. On their refusal such incident happened. With these allegations the prosecution was launched by lodging a first information report by father of the victims Shashi Kumar Barai (P.W.1) as informant with the Najirpur Police Station which was recorded as Najirpur Police Station Case no. 01 dated 04-03-1988 corresponding to G.R. no. 04 of 1988 under Section 326A of the Penal Code.
3. After investigation Police submitted charge sheet accusing three accused including the petitioner under sections 326A, 109 of the Penal Code. Eventually charge under sections 326A, 109 of the Penal Code was framed against the' accused in presence of accused Nittya Nanda Majumder and in absence of accused Swapan and Sudangshu. However the Court appointed State defence lawyer to defend the absconding accused.
4. In course of trial the prosecution, in all examined fifteen witnesses. Of them P.W.I is the informant, P. Ws. 2 and 5 are the daughters of informant and victims. P.Ws. 3 and 9 are the local physicians who gave primary aid to the victims. P.W. 4 mother of victims. P.Ws. 6,7,8, 10 and CW-14 and 15 are the locals.
They came to the scene after occurrence. P.Ws. 11 and 13 are the Police personnel, of whom P. W. 13 is the investigating officer. P.W. 12 is a doctor who examined the victims and issued a certificate on which virtually the prosecution commencement. After trial, the Court awarded such conviction and sentence, however acquitted co-accused Nittya Nanda Majumder from the charge.
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