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All participants in acts of crime equally guilty

.
Appellate Division (Criminal)
Md. Muzammel Hossain-C.J.
Surendra Kumar Sinha-J.
Md. Abdul Wahhab Miah-J.
Nazmun Ara Sultana-J.
Syed Mahmud Hossain-J.
Muhammad Imman Ali-J.
Md. Shamsul Huda-J.
Criminal petition for leave to appeal No.332 of 2009 with Jail petition No.6 of 2009.
 (From the judgment and order dated 25.5.2007 passed by the High Court Division in Death Reference No. 142 of 2003 with Criminal Appeal No.4716 of 2003.)
Monir Hossain.............. Petitioner (In both the cases).
Vs
The State, represented by the Deputy Commissioner, Manikgonj……………..Respondent. (in both the cases)
For the Petitioner (In both the cases) : Mr. A.K. Badrul Huq, Senior Advocate with Mr. Mansurul Huq Chowdhury, Senior Advocate, instructed by Mr. Chowdhury Md. Zahangir, Advocate-on-Record.
For the Respondent (In both the cases) : Not Represented.
Judgment: 9th January, 2012
Penal Code, 1860-
Sections 302  Punishment for murder-
Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine-
Section 34--Acts done by several persons in furtherance of common intention-
When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone-
The High Court Division attributed the cause of death upon the petitioner observing that "since accused Monir played the main part in the commission of the offence by inflicting injury on the vital part of the deceased like head; so he has rightly been awarded capital punishment of the death which cannot be interfered with by us in any way". On perusal of the post-mortem report, the evidence of P. W15 and the judgments, we find merit in the. contention of the learned counsel for the petitioner, inasmuch as, the Special Tribunal, convicted the petitioner under sections 302/34 and not under section 302, and the High Court Division did not interfere with the charge and maintained the conviction. The dominant feature of section 34 is the element of participation in actions. It requires that when several persons unite with a common purpose to do any criminal offence, all those who assist in the accomplishment of the object would be equally guilty. The High Court Division ought to have altered the charge of the petitioner if it had found from the evidence on record that the case of the petitioner could be singled out from other convicts but the High Court Division while maintaining the charge illegally attributed the liability  of death upon the petitioner alone
............... (Para 9)

Since the Tribunal and the High Court Division have been convinced that the death is due to the cumulative effect of the injuries inflicted by 8 accused persons and maintained the conviction of the petitioner under sections 302/34 of the Penal Code, it has committed fundamental error in attributing the fatal injury upon the petitioner alone................................. we find no reason to discriminate the petitioner with other accused persons who have been convicted under sections 302/34. Accordingly, ends of justice demands that the sentence awarded to the petitioner is required to be commuted to imprisonment for life and accordingly it is commuted. ......................... (Para 10)

Judgment
S.K SINHA-J: The delay in filing of the leave petition is condoned.
2. Condemned prisoner moves these petitions from a judgment and order of the High Court Division confirming the death reference made by the Druta Bichar Tribunal No.4, Dhaka in Druta Bichar Case No.36 of 2003.
3. Petitioner along with 8 others was put on trial before the Tribunal to face charge under sections 302/34 of the Penal Code for causing the death of Kabul on 20th July, 1999 at about 6 p.m. According to the prosecution version, the petitioner along with others gheraoed Kabul at the place of occurrence and then Asgar inflicted a chapati blow on the top of the head of the victim which emerged the brain from cranial cavity. Thereafter, the petitioner inflicted chapati blow on the right side of the head just above the right ear and other accused persons also caused injuries with lethal weapons on the person of the victim. The victim was shifted to the local hospital where he was declared dead.
4. Prosecution in support of its case has examined 17 witnesses but the defence examined none. The Druta Bichar Tribunal on an assessment of the evidence on record found the petitioner along with six others guilty to the charge and another under sections 302/109 of the Penal Code, and sentenced the petitioner and six others to death and another to life with fine.
5. The High Court Division heard the death reference along with the criminal appeal preferred by the convicts analogously and by the impugned judgment accepted the death reference so far as it relates to the petitioner and commutated the sentence in respect of seven others to imprisonment for life and also acquitted the other one of the charge under sections 302/109.
6. Mr. A.K. Badrul Huq, learned counsel has taken us to the FIR, the evidence of the witnesses and other connected materials and submits that the High Court Division committed a fundamental error in attributing the petitioner as the principal assailant of the victim in failing to notice that the consistent evidence on record is that Asgar inflicted the fatal injury on the top of the head of the victim which caused the brain to emerge from the cranial cavity and then the petitioner and other co-accused inflicted injuries to the victim. The medical evidence, it is contended, having supported the injuries caused by all accused persons, the impugned judgment is required to be examined for ends of justice since the sentence of death has been maintained in respect of the petitioner alone. In elaborating his argument, the learned counsel contended that the High Court Division made discrimination in considering the case of the petitioner, but as a matter of fact, accused Asgor may be singled out of the accused but it had singled out the petitioner who stands on the same footing with other convicted accused.
7. We have perused the FIR, the evidence of the witnesses; the judgment of the Tribunal and that of the High Court Division. We have heard the learned counsel at length. There is no dispute that Kabul died on 28th July, 1999 as a result of injuries inflicted by the petitioner and other accused persons. There is consistent evidence on record that the first injury was inflicted by Asgar on the top of the head and the medical evidence corroborated the injury said to have been inflicted by him. We record our dissatisfaction that the investigating agency have not recommended this Asgor to face prosecution and the courts below also accepted the police recommendation. Dr. Mohammad Bazlul Huq (P.W .. 15) proved the medical evidence which sufficiently indicated that the fatal injury was inflicted by Asgar. The consistent prosecution version is that after that injury, this petitioner inflicted the second injury with a chapati on the right side of the head just above the right ear.
8. Saifur Rahman alias Linkon (P.W.2), Shamsuuddin (P.W.3), Md. Asgar Ali (P.W4), Mizanur Rahman Khan Tutul (PW.5) and Mir Miraz Hossain( (P.W.6) corroborated the prosecution story narrated by Motaleb Hossain (P.W.I) to the effect that this petitioner inflicted a chapati blow on the right side of the head just above the right ear. P.W.15 performing autopsy on the dead body found the corresponding injury. He found as many as 14 incised injuries on the person of the victim and opined that the death was due to the said injuries' i.e. the death was caused due to the cum