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In the Court of Judicial Magistrate

Mymensingh, Bangladesh
Original Jurisdiction

Present : Mr. Mohammad Nayeem Firoz

Judicial Magistrate

In the matter of
Trishal GR Case No. 174/2007
(Arising out of Trishal P.S. Case No.19 dated 20.06.07)

Charge: Under Sections 341/379/324/34 of the Penal Code,1860

Day of pronouncement of the Judgment: 19.01.2011 AD

State

…………………………………Prosecution

—Vs—

Tuhin and 3 Ors.

……..…………………………….Accused Persons

JUDGMENT

This is a case under sections 341/379/324/34 of the Penal Code. The prosecution case in short is as
follows:-

I. PROSECUTION CASE

The prosecution case, in brief, is that informant Khondokar Md. Julphiqar gave information to
the police station of Trishal to the effect that on 08.06.2007, approximately at 07:30 pm,
while he was on his way bearing BDT.45,000 to his rural abode after attending and presiding
over a meeting of a Retired Service-Holders’ Welfare Society which was ended up at 07:15
pm and held at Kazirshimla. Thereafter, at Kazirshimla crossroads of Trishal suddenly he was
encircled by all the accused persons. Then accused person Tuhin touched his throat with the
knife he carried with him, accused person Shahadat touched his right hand with the dagger
he carried with him. On the self same occasion accused person Shahnewaz Molla threatened
him to kill by touching a knife on the left side of his tummy and demanded all the money he
had with him without making any sound. Then the accused persons forcibly snatched away
BDT.45,000 from the right pocket of his pant. Accused person Shahadat forcefully took away
a ‘Seiko Five’ branded wristwatch worth BDT.5,000 from his left hand and accused person
Tuhin took away BDT.475 from the pocket of his shirt on the self same occasion. On his
screaming accused person Tuhin stabbed with the knife on his forehead causing a cut-wound
above his left eye. After that all the accused persons ran away towards the west. Being hurt
in his person he fell down on the soil and was bleeding from his wound whilst he was found
by his nephew Milon and brother-in-law Rafikul. Subsequently he was taken to the
Combined Military Hospital, Mymensingh by them and for medical treatment was admitted
thereto. The informant, thereafter, being physically sound lodged a computer composed FIR
with Trishal P.S., whereupon Trishal P.S. Case No.19 dated 20.6.07 was registered. Hence is
the case.
II. INDICATION AS TO COGNIZANCE AND CHARGE SHEET

The Investigation Officer, Dulal Chandro Shutrodhar, Sub-Inspector of Police, Trishal Police
Station visited the place of occurrence, tried to arrest the accused persons, recorded
statements of witnesses under Section 161 of the Code of Criminal Procedure, analyzed the
medical certificate and thereafter, being satisfied that there was a prima facie case against
the accused persons, submitted Charge Sheet against the accused persons under Sections
341/324/379/34 of the Penal Code and cognizance was taken wherefrom.

III. SUBSTANCE OF CHARGE

On 07.09.2008, formal charges were framed against the accused persons Shahnewaz Molla,
Kamrul, Tuhin and Shahadat. Separate charges were framed as against the accused persons
under different sections of the Penal Code. Against accused person Tuhin charges was
framed under sections 341/324/379/34 of the Penal Code. Against accused persons
Shahnewaz Molla, Kamrul and Shahadat charges were framed under sections 341/379/34 of
the Penal Code. Charges were read over and explained to the accused persons except
Kamrul and Shahadat since they were absent on that day.

IV. POINTS FOR DETERMINATION

1. Whether the prosecution has succeeded in proving the charges levelled against the accused
persons under Sections 341/324/379/34 of the Penal Code beyond all reasonable doubts or
not.

2. Whether the accused persons can be penalized upon the evidence adduced in trial or not.

Points nos.1 and 2 are taken up together for the sake of convenience and brevity of
discussion.

V. EVALUATION OF THE DEPOSITIONS RECORDED IN COURSE OF TRIAL

In order to substantiate the charges levelled against the accused persons, the prosecution
examined as many as 6 witnesses including the informant, the Investigating Officer and the
erstwhile ACO of the Combined Military Hospital(CMH), Mymensingh. Learned defense
counsel cross-examined all the prosecution witnesses.

PW1, Khondokar Md. Julphiqar is the informant of the case. In his deposition he described
the date and time of the occurrence in conformity with the FIR and identified accused
persons who were present in the offenders’ dock. He added that he went to attend in a
meeting at Kazirshimla on the day of occurrence bearing total amount of BDT.45,000 of
which BDT.35,000 was taken for repayment of a debt, BDT.10,000 was taken for the purpose
of giving his elder brother and BDT.600 was taken for other spending. After presiding over
the meeting he came out and suddenly he became encircled by all the accused persons in a
place situated 100 gauges far from Kazirshimla crossroads. Then accused person Tuhin
touched his throat with the knife he carried with him, accused person Shahadat touched his
right hand with the dagger he carried with him. On the self same occasion accused person
Shahnewaz Molla touched a knife on the left side of his tummy and accused Tuhin
threatened him to kill and demanded all the money he had with him. Accused person
Shahadat forcefully took away a ‘Seiko Five’ branded wristwatch worth BDT.5,000 from his
left hand and accused person Tuhin took away BDT.475 from him on the self same occasion.
Accused person Tuhin stabbed on his forehead causing a cut-wound with the knife. Accused
person Kamrul and other accused persons forcefully snatched away BDT.45,000 from his
right pocket. Then the witnesses Milon, Rafikul, Ashraful and Habib rushed to the P.O. and
took him to the CMH, Mymensingh where he took admission and was under medical
treatment from 08.06.07 to 17.06.07.

Subsequently he lodged the written FIR with the Trishal Police station. He exhibited the FIR
as Exhibit no.1 and his signature on it as Exhibit no. 1/1.

PW1 was cross-examined by the learned defense lawyer. In the cross he admitted that
witness Rafikul is his brother-in-law, Milon is nephew and Ashraful is another nephew. He
added that the people living in the houses adjacent to the P.O. are not witnesses of his case.
He reached Kazirshimla assumingly at 04:00 pm to attend in a meeting of Retired
Service-holders’ Welfare Society and to repay the loan which he took from that society. The
welfare society consists of 30/35 members and accused person Shahnewaz Molla was the
Cashier of that society. The informant took the loan about 6/7 months ago and the
conditional time-limit of repayment was 4 months and he has already made that repayment,
he admitted. He further admitted that accused person Shahnewaz Molla is his relative and
he does not know that whether any member of that welfare society is acquainted with this
occurrence. He admitted that, the members of the said welfare society are not made
witnesses in this case. He admitted that the cashier of the said society, Shahnewaz Molla
was the authorized person to receive the repayment of the loan. In reply of a suggestion
given by the defense counsel that whether he did not repay the loan amounting to
BDT.35,000 to the Welfare Society -he answered in the negative. He added that the
shopkeepers of the shops adjacent to P.O. are aware of the occurrence. He did not go to
MMCH and other hospitals situated on the way to CMH for medical treatment, he admitted.
He did not submit his shirt bearing blood-spot to the I.O. as an alamat of this occurrence. In
reply of a suggestion given by the defense counsel as to whether he has brought this false
case against the accused persons for the purpose of harassing them and in a dishonest
motive to evade the liability of the loan-he answered in the negative. In reply of further
suggestions given by the defense counsel as to whether he has managed a fabricated M.C.
and is giving false testimony in a false case-he also answered in the negative.

PW2 , Dulal Chandro Shutrodhar, the Investigation Officer of this case, deposed that he was
engaged as an Sub Inspector in Trishal P/S on 20.06.2007. On that day the Officer-in-Charge
instituted the case by filling up all the columns of the prescribed form of FIR having received
an ‘Ejahar’ (u/ss. 341/324/379/34 of the Penal Code) lodged by the informant Khondokar
Md. Julphiqar. The responsibility to investigate about the case was invested upon him. He,
upon taking the charge of the investigation visited the place of occurrence and drew the
sketch-map and index of the P/O. While conducting the investigation he tried to seize
‘alamat’(specimen) and to arrest the accused persons. He also recorded the statement in
accordance with Sec.161 of CrPC while examining the witnesses who were supposed to be
acquainted with the facts and circumstances of the case. Subsequently he collected and
analyzed the Medical Certificate of the victim. After completing the said investigation he had
submitted the charge-sheet (CS no.156 of Trishal P/S, dated-23.07.07) against all the accused
persons showing them primarily guilty of offences under sections 341/324/379/34 of the
Penal Code.

PW2 was cross examined by the learned defense lawyer. In his cross-examination he said
that the P.O. is situated in the western side of the Kazirshimla crossroads and there are
several stores on the both sides of that crossroads. He added that he came to know that
both the parties have previous enmity while he was investigating the case. In reply of
another suggestion that he did not investigate the facts and circumstances of the case
properly and therefore submitted a false and biased police-report in the court-he answered
in negative.

PW3, Nazir Hossen Milon, one of the witnesses of the case, deposed that he knows both the
parties of this case. In his deposition he described the date and time of the occurrence in
conformity with the FIR. He also added that he was at a tea-stall situated 20 gauges far from
the P.O. at the time of the occurrence and rushed to the P.O listening hue and cry. He said
that after reaching the P.O. he witnessed Shahadat touching the dagger on informant’s hand,
Shahnewaz touching a knife on the tummy of the informant and Tuhin was demanding the
money from the informant threatening him with a knife. On refusing to give them the money
accused person Tuhin caused a cut-wound above the left-eye region of the informant. On the
self same occasion accused person Kamrul took away the money from the informant’s
pocket. He admitted that he had heard from the informant that there was BDT. 45, 000. He
added that accused person Tuhin took away BDT.475 from the pocket of the informant and
accused Shahadat took away his wristwatch of ‘Seiko Five’ brand. As he and witness Rafikul
Islam Molla approached towards the P.O. the accused person frightened them with the
sharp-cutting weapon. Subsequently all the accused persons ran away towards west of the
P.O. since other witnesses like Habibul, Julfikar along with some 15-20 people arrived there
listening the screaming. Then he along with witnesses Rafikul and Habibur took the
informant to the CMH by a local motor vehicle popularly known as ‘tempoo’. He added that
the informant was given medical treatment there in CMH, Mymensingh for 8(eight)
consecutive days.

PW3 was cross-examined by the learned defense lawyer. In his cross-examination he

mentioned that the police recorded his statement in the same month the occurrence took
place but he could not recall the exact date of that. He admitted that the informant is his
paternal uncle. He further admitted that he could not tell the actual duration of the
occurrence but he was in the P.O. for 10(ten) minutes. He could not remember the name of
other witnesses who came with them in the time of the occurrence, he said. They reached at
the CMH with the informant at 08:30, he deposed. He does not know the medical
information i.e. the Ward number or Bed number of the CMH where the informant took the
medical treatment but he mentioned the date of discharge i.e. 17th of the same month. He
added that he described the whole story of the incidence to the investigating police officer
which includes the fact that accused person Tuhin demanded the money from the informant
threatening him to kill. In reply of a suggestion given to him by the defense counsel as to
whether he lied about the occurrence or not-he replied in the negative.

PW4, Rafikul Islam deposed that he knows all the accused persons and mentioned their
name. In his deposition he also described the date and time of the occurrence in conformity
with the FIR. He added that he was near to the P/O at the time of the occurrence. On seeing
some people are fighting another witness Nazir Hossen Milon who was along with him
rushed to the P.O. He saw that the informant was shouting. He added that he saw that
accused person Tuhin caused cut-wound on the left side of the informant’s forehead and
also saw that the accused persons Tuhin and Kamrul took away money from the informant’s
pocket. He said that he witnessed accused person Shahadat to snatch away the wristwatch
of ‘Seiko Five’ brand belong to the informant. Subsequently all the accused persons ran away
towards west of the P.O. since other witnesses like Habibul, Julfikar along with some 15-20
people arrived there listening the screaming. Then as per the will of the informant he along
with witnesses Milon and Habib took the informant to the CMH situated at Shankipara by a
local motor vehicle popularly known as ‘tempoo’. He admitted that he heard from the
informant that accused persons took away BDT.45, 000 plus amount from him.

PW4 was cross-examined by the learned defense lawyer. In his cross-examination he

admitted that the informant is his brother-in-law. He could not remember the name of other
witnesses who came in the time of the occurrence, he said. He further mentioned that the
investigating police recorded his statement 7/8 days after the occurrence took place. It is to
be noted that in his cross examination in reply of a suggestion given by the learned defense
counsel in relation to the character of the accused persons he asserted that accused person
Shahnewaz Molla is a good man and other accused persons are good also. He does not know
the medical information i.e. the Ward number or Bed number of the CMH where the
informant took the medical treatment. In reply of a suggestion given to him by the defense
counsel that no such occurrence took place at the time, place and in the manner as deposed
by him - he replied in the negative. In reply of another suggestion given to him by the
defense counsel as to whether he being biased towards the informant has given false
statement about the occurrence or not-he replied in the negative.

PW5, Ashraful Islam deposed that he knows all the accused persons and mentioned their
name. In his deposition he also described the date and time of the occurrence in conformity
with the FIR. He said that he was sitting on a store 50 feet far from the P.O. and went to the
P/O after listening the screaming. On reaching the P.O. he saw heated debate between both
the parties of this case. He added that he saw that accused person Tuhin caused cut-wound
on the left side of the informant’s forehead and also saw that the accused person Kamrul
took away money from the informant’s pocket. He admitted that he heard from the
informant that accused persons took away BDT.45,000 plus amount from him. He said that
he witnessed accused Shahjada to snatch away the wristwatch of ‘Seiko Five’ brand belong
to the informant. He also said that he witnessed accused person Shahnewaz Molla standing
there with a knife in his hand. Subsequently all the accused persons ran away towards west
of the P.O. since other witnesses arrived there listening the screaming of the informant.
Then some witnesses took the informant to the CMH by a baby-taxi.

PW5 was cross-examined by the learned defense lawyer. In his cross-examination he

admitted that the informant is his paternal uncle-in-law. He could not remember the name
of other witnesses who came in the time of the occurrence, he said. He further mentioned
that the investigating police officer recorded his statement but he could not recall the exact
date of that. He does not know the fact that from which pocket of the informant money was
taken away by the alleged accused persons, he admitted. In reply of a suggestion given to
him by the defense counsel that no such occurrence took place at the time, place and in the
manner as deposed by him - he replied in the negative. In reply of another suggestion given
to him by the defense counsel as to whether he being biased towards the informant has
given false statement about the occurrence or not-he replied in the negative.

PW6, Dr. Major (Retd.) Md. Badruzzaman deposed that he was engaged as the ACO of
Combined Military Hospital, Momenshahi at the time of the occurrence from which this case
arose. He deposed in the light of a discharge-certificate issued and countersigned by him in
the capacity of ACO of CMH, Momenshahi (i.e. Mymensingh). He certified that the
informant of this case being a retired member of the Bangladesh Army took admission at the
CMH, Mymensingh on 08.06.07 and was discharged on 17.06.07. On perusal of the discharge
certificate it is transpired that the informant was suffering from heart disease and was a
diabetic patient. The informant was brought to the hospital with a ‘stab injury over left
eye’(as written in the discharge certificate) and was medically treated by another specialist
doctor of the CMH, he added. He countersigned the discharge certificate as the in-charge of
the hospital, he emphatically mentioned. He did not exhibit discharge certificate rather
exhibited his counter signature on the discharge certificate as Exhibit no-2.

PW6 was cross-examined by the learned defense lawyer. In his cross-examination he said
that there is no Medical Certificate in this case but only a discharge certificate which is not
written by him. He added that there is no measurement of the injury in this discharge
certificate. He admitted that he had no personal knowledge about the physical problems of
this informant. In reply of a suggestion given to him by the defense counsel as to whether
the victim has managed to bring this discharge certificate by pursuing since there is no M.C.
or not- he replied in the negative.

VI. EXAMINATION OF THE ACCUSED PERSONS

For the purpose of enabling the accused persons to explain any circumstances appearing in
the evidence against them, the Court, at this stage of trial, put such questions to them as the
Court considered necessary, and for the purpose aforesaid, questioned them generally on
the case after the witnesses for the prosecution have been examined and before they are
called on for their defence.

At this stage of proceeding 3(three) of the accused persons were examined under Section
342 of the Code of Criminal Procedure after the closing of the evidence-recording from the
prosecution witnesses. One of the accused persons was absent while examining them. In the
examination they declined to give any defence witness and to furnish any document in
support of their cause.

VII. ARGUMENTS ADVANCED BY LEARNED LAWYERS AND JUDICIAL EVALUATION THEREOF

A. Arguments of the Prosecution

At the time of arguments, learned private lawyer of informant placed his arguments on
behalf of the prosecution.

The cardinal points which emanated from a judicious evaluation of the arguments of the
prosecution are as follows:
 a. He argued that, PWs proved that the accused persons committed the offences as
alleged against them since their deposition is coherent and corroborative to each
other about the material facts of the case.

b. He added that though the witnesses who deposed can be questioned as not neutral
but they are the most natural, competent witnesses to the fact-in-issue for that
reason they are trustworthy.

c. Nonetheless, deposition PW3, PW4, and PW5 are reliable as competent witnesses
since the development of Criminal Jurisprudence widens the admissibility of the
evidence adduced by the relatives of the complainant or informant who are
well-acquainted with the material fact-in-issue, he emphasized.

d. He further argued that the modern Criminal Jurisprudence professes that the
evidence adduced by the close relatives are trustworthy because in general, they
will not implicate any person falsely since they want the genuine offenders to be
penalized for the alleged offences which rendered sufferings to their person and
property.

e. It is strongly argued that the defense side could not establish any specific
defence-case from the trend of cross-examination.

f. Therefore, conviction of maximum ceiling as prescribed by the law can be awarded

relying on the testimonies of the PWs. The Assistant Public Prosecutors also
supported his submission and prayed for an exemplary punishment of the accused
persons referring to the deterrent effect of punishment.

B. Arguments of the Defense

Opposing him learned lawyer from the defense side presented his arguments. In his
submission he argued that no judicial inference can be drawn regarding the occurrence since
PW3, PW4 and PW5 are highly interested towards the informant. He added that the
informant had previous enmity and grudge with the accused persons and this case is the
outcome of that. This case which has no merit was filed only to harass the accused person by
way of dragging them to the court. Moreover, the depositions of the prosecution witnesses
are full of disparity and inconsistency. So the accused persons can be acquitted from the
charges levelled against them.

The cardinal points which emanated from the judicious evaluation of the arguments of the
defense side are as follows:

a. Learned defense counsel argued that the prosecution case totally failed mainly for
want of unimpeachable evidence of competent, natural and disinterested witnesses.

b. It was also argued that for reasons of previous enmity and bitterness between the
parties as apparent from the evidence it is to a certain extent natural that the
prosecution adopted dishonest means in bringing the allegations against his clients
i.e. the accused persons.
 c. It was strongly argued by learned defense counsel that because of the absence of
medical certificate enshrining the particulars of the injury and the non-examination
of the Medical Officer who gave the medical treatment as mentioned in the
discharge certificate the allegation of ‘Voluntarily causing hurt by dangerous
weapons or means’ as enshrined in S. 324 of the Penal Code was not materialized
thereupon charge under section 324 of the Penal Code evidently failed.

d. That some of the significant witnesses viz. the shop-keepers of the shops adjacent to
P.O. and the members of the FIR-stated Retired Service-holders’ Welfare Society of
which the informant and accused person Shahnewaz Molla were two important
designation-holder and also the members who attended the meeting of that society
held in the same place and just few minutes prior to this occurrence were not
produced before the court to state under oath as the witnesses to this case (even not
cited in the charge-sheet as witnesses). Consequently the charges under section
SS.341/379 of the Penal Code also gone to death, he argued.

e. For unworthy reasons of delay in lodging FIR it can be presumed that the delay was
used for manipulation of the prosecution story. The point of argument was that in the
perspective of the genuineness of the prosecution story, question of suspicion arises
how the FIR can be not lodged immediately after the alleged crimes took place.

VIII. FINDINGS AND DECISION

So far as the Criminal Jurisprudence is concerned, presumption of innocence of the accused

persons is the basis of Criminal Justice System. So, onus of proof lies on the prosecution to
prove the charge of offences levelled against the persons accused beyond all reasonable
doubts by unimpeachable evidence of competent witness viz. natural and neutral witnesses.
Doubt, if any, strikes the mind of the judge as to the commission or omission of any act
amounting to a crime crated by any penal law for the time in force then establish principle
professes that it is the defense side which is entitled to get benefit of doubt.

We have made analysis of the evidence adduced by the prosecution witnesses above
meticulously and upon considering the evidence adduced regarding the facts and
circumstances of this case followed by the perusal of the FIR, Charge-Sheet, depositions
recorded, discharge-certificate, arguments placed by the learned attorneys and the papers
appended to the case-record the following points appeared to me which paved the way to
the findings of this judicial proceeding:

1. As we observed, in this case the prosecution adduced oral evidence of only 3(three)
PWs other than the informant, the Investigation Officer and the ACO of Combined
 Military Hospital, Momenshahi. Of the 6 prosecution witnesses PWs nos.3, 4 and 5 are
admittedly close relatives of the informant and therefore can be presumed as
interested witness. Moreover, it was admitted by some of the PWs that several
neighbouring people to the P.O. came at the time of occurrence and witnessed the
occurrence but they were not produced before the court to testify or even were not
enlisted as PWs in the police report.

2. The offence of ‘Wrongful Restraint’ was charged against all the accused persons but
to prove them as guilty it was for the prosecution to prove credibly that the ingredients
of this offence exist in the actus reus which is alleged to have been committed by him.
Section 341 of the Penal Code prescribes punishment for the offence defined in Sec.339
which goes as under:

“339. Whoever voluntarily obstructs any person so as to prevent that person from proceeding
in any direction in which that person has a right to proceed, is said wrongfully to restrain that
p e r s o n .

Exception. The obstruction of a private way over land or water which a person in good faith
believes himself to have a lawful right to obstruct, is not an offence within the meaning of
this section.”

It is evident that the place of occurrence i.e. Kazirshimla crossroads of Trishal Upazilla is
admittedly a busy place where there are several commercial stores and tea-stalls but
none of the shop-keepers were examined as the witness to support the fact that at such
time, place and in such manner the informant was wrongfully restrained by this accused
persons. So non-examination of natural witnesses has created a doubt as to the
commission of this offence by the alleged offenders. But arguably, he could have been
wrongfully restrained in the same P/O but that is not credibly supported by the
prosecution witnesses before the court while testifying under oath. Furthermore, the
testimonies of the PWs in this point is also not sufficiently believable since their
credibility is also questionable.

So, in the light of above discussion I opine that the prosecution could not prove the
ingredients of the offence of ‘wrongful restraint‘ quite convincingly.

3. The offence of ‘Voluntarily causing hurt by dangerous weapons or means’ was

charged against accused person Tuhin but to prove them as guilty it was for the
prosecution to prove credibly that the ingredients of this offence exist in the actus reus
 which is alleged to have been committed by them. Section 324 of the Penal Code
prescribes punishment for the said offence which goes as under:

“ 324. Whoever, except in the case provided for by section 334, voluntarily causes
hurt by means of any instrument for shooting, stabbing or cutting, or any instrument
which, used as a weapon of offence, is likely to cause death, or by means of fire or any
heated substance, or by means of any poison of any corrosive substance, or by means
of any explosive substance or by means of any substance which it is deleterious to the
human body to inhale, to swallow, or to receive into the blood, or by means of any
animal, shall be punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both.”

Therefore, because of the absence of medical certificate in support of claimed injury and the
non-examination of the Medical Officer who gave the medical treatment as mentioned in the
discharge certificate the allegation of ‘Voluntarily causing hurt by dangerous weapons or
means’ as enshrined in S. 324 of the Penal Code was not materialized. Therefore the
presumption that the informant was caused hurt by dangerous weapon which could have
been drawn from the depositions made by the PWs ultimately got no Judicial
accommodation. Hence it is evident that the allegation of voluntarily causing hurt by
dangerous weapon or means was not legally materialized.

Furthermore, from the careful perusal of the deposition of the then the ACO of Combined
Military Hospital, Momenshahi (as PW6) the following points appeared to me that created a
reasonable doubt as to the commission of this offence:

A. In his cross-examination he said that there is no Medical Certificate in this case but

only a discharge certificate which is not written by him. He added that there is no
measurement of the injury in this discharge certificate. He admitted that he has no
personal knowledge about the physical problems of this informant.

B. In the chief-examination PW6 emphatically mentioned that the informant was

brought to the hospital with a ‘stab injury over left eye’ (as written in the discharge
certificate) and the informant was medically treated by another specialist doctor of the
CMH other than he. He, as a formality only countersigned the discharge certificate as
the in-charge of the hospital. He did not exhibit discharge certificate rather exhibited his
counter signature on the discharge certificate as Exhibit no-2.
So, in the light of above discussion I opine that the prosecution could not prove the
ingredients of the offence of ‘voluntarily causing hurt by dangerous weapon or means
‘quite convincingly.

4. The offence of ‘Theft’ was charged against all the accused persons but to prove them
as guilty it was for the prosecution to prove credibly that the ingredients of this offence
exist in the actus reus which is alleged to have been committed by them. Section 379
of the Penal Code prescribes punishment for the offence defined in Sec.378 which goes
as under:

“ 378. Whoever, intending to take dishonestly any moveable property out of

the possession of any person without that person's consent, moves that property in
order to such taking, is said to commit theft. ”

From the careful perusal of the deposition of the informant (as PW1) the following
points appeared to me that created a reasonable doubt as to the commission of this
offence:

A. In the cross-examination the informant mentioned that he took the loan about 6/7

months ago and the conditional time-limit of repayment was 4 months and he has
already made that repayment, he admitted.

B. In the cross-examination the informant, in reply of a suggestion given by the

defense counsel, mentioned that he reimbursed the loan amounting to BDT.35,000 to
the said Welfare Society. From such admission we found that he has paid the amount to
the FIR-said Retired Service-holders’ Welfare Society prior to the occurrence. It is also
admitted that the alleged occurrence have been taken place after the closure of the
meeting.

For these reasons, the evidence adduced by the PWs created a doubt as to how the
accused persons could have committed the offence of theft in relation to the money
which has admittedly been paid prior to the time of the occurrence by the informant as
a repayment of the loan taken from the FIR-mentioned Retired Service-holders’ Welfare
 Society. Besides, in the evidence adduced by the PWs I find no credible corroboration of
the fact that from which pocket of the informant the alleged accused persons took
away the money.

So, in the light of above discussion I opine that the prosecution could not prove the
ingredients of the offence of ‘theft‘ quite convincingly.

5. Finally, It is to be noted that Section 34 of the Penal Code does not create any distinct

offence but merely lays down the principle of joint liability as regard to criminal acts

done in furtherance of common intention of the offenders. I am quite convinced that

no nexus or a coalition of action between accused persons can be inferred from facts

and circumstances of this case furthering or facilitating in committing the offences as

mentioned above.

Provision regarding criminal acts done by several persons in furtherance of common

intention is spelt out in Section.34 of the Penal Code which is as under:

“34. 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.”

Arguably, common intention within the meaning of section 34 of the Penal Code though
implies pre-arranged plan or concert between the accused persons; it can come into
existence whilst the acts are being committed. We found that the testimonies of the
prosecution witnesses have categorically failed to show that any such pre-arranged plan or a
coalition of action between accused persons furthering or facilitating in committing the
incriminating acts is existent in the incumbent facts and circumstances of the case.

So, in the light of above discussion I opine that the prosecution could not prove the
common intention of the offenders i.e. joint liability in the present fact furthering or
facilitating in committing the alleged offences quite convincingly.

In the light of the above discussion and on perusal of the evidence discussed so far it appears

that the prosecution witnesses are not neutral and therefore not sufficiently reliable. In this
case we found lacking of sufficient witnesses too since the neighboring witnesses to the P.O.

could not be brought before the trial court by the prosecution. Besides, the testimonies of

prosecution witnesses could not infuse any evidentiary value in support of the allegations

against the accused persons. Furthermore, the witnesses did not convincingly corroborate

each other in the material particulars. I hold that the prosecution case could not cross the

line of the doubt regarding its truth.

Having regards to the facts and the circumstances discussed above, I hold that the

prosecution having been failed to bring the charge home levelled against the accused

persons beyond doubt, the accused persons cannot be held guilty to the charge levelled

against them. They are, therefore, entitled to get acquittal.

Thus, the point Nos. 1 & 2 are disposed of in the negative.

Hence,

Ordered

that the accused persons Tuhin, Shahnewaz Molla, Shahadat and Kamrul
are not found guilty to the charge levelled against them under sections
341/324/379/34 of the Penal Code. They be acquitted from the charges levelled
against them and their sureties be discharged from their respective bail bonds.

Recall process, if any, pending for execution against them.

Dictated & corrected by me:

signature
. signature

( MOHAMMAD NAYEEM FIROZ )

( MOHAMMAD NAYEEM FIROZ )

Judicial Magistrate
MYMENSINGH
Judicial Magistrate
MYMENSINGH