Case Summary: SK. Baharul Islam Vs The State

• Case title: SK. Baharul Islam Vs The State 
• Court name: High Court Division, Supreme Court of Bangladesh
• Citation: 11 BLD (HDC) 158
• Name of judges: Anwarul Haque Chowdhury and Kazi Shafiuddin Ahmed JJ
• Date of judgement: 25th April, 1990
• Relevant Provision: The Penal code 1960 section 34 and 302

Brief Facts:

The accused appellant Baharul islam was arrested shafiqual islam alias arun who was a connection with the Ramna police station with the command of O/C on the date of 23.10.86. After taking to Shafiqual islam to the Romna Police station they beaten the alias arun very badly. Shafiqual was beaten by the accused appellant Baharul Islam, Delwar Hossain, Osman goni and Bashirul islam. From 23.10.86 to 25.10.86 shafiqual islam alias arun was in the roman police station. During that time for beaten brutally shafiqual islam alias arun so injured badly.  On date 25.10.86 the Romna police sent shafiqual Ialam to the cout with the charge sheet that he was throwing bomb into the truck of the supporters of Colonel Farook causing serious injuries on their persons and later he was sent to the jail custody. But in the jail gate, the deputy jailer was refushed to take him in the jail custody because of his serious injury. The jailor of the jail send him to the jail doctor to check his health and DR. Abdul Kadir (P.W. 4) treated him and send him to jail hospital. Later Shafiqual Islam condition was deteriorating more and send him P.G hospital (Prisoner Gail) for better treatment. On 27.10.86 shafiual Islam alias arun was dead due to sever injury. The dead body was sent for post mortem. Durin the investigation P.W. 1 became suspicious and on enquiry and examination of post mortem report filed a F.I.R suo motu and started investigation into the case.

Arguments:

Prosecution

The prosecutation case in short, Shafiual Islam alias Arun is way-ward, turbulent, unmanageable by his guardian and maternal uncle MD. Ali Hossain approached the officer in charge baharul islam on 23.10.86 at the roman police station. MD. Ali Hossain was seeking help from o/c to reform the boy from sending Shafiqual islam alias arun to the reformatory school. o/c baharul islam sent sub inspector Abdul bari who was working under him along with Ali Hossain to the boy residence to take Shafiqual Islam to the police station . On the way to the Shafiqual house, Abdul bari told ali Hossain that he went arrest some culprit at paribagh later he come his house to take Shafiqul to police station. Around 8.30 to 9 abdul bari come to shafiqual house and P.W.5 (Ali Hossain) and others waking him from sleep to hand over sub inspector abdual bari. After talking to the polic station Shafiqual was brutally beaten by the OC baharul and others. 25.10.86 shafiqual maternal uncle Ali Hossain and his father abu miah went to the police station and the police said to pay money to them. If they could not pay money he will further beaten very badly. After hearing that shafiqual maternal uncle arrange 40000 taka and given that to the police. But on 26.10.86 shafiqual was sent to the court after that he was sent to the jail custody. But the deputy jailor was refushed to take him to the custody later jailor sent him to the jail hospital for treatment. Shafiqual condition was worsen by that time sent him to the P.G hospital. On 27.10.86  shafiqual died. Prosecutation alleged that accused appellant was arrested the shafiqual islam alias arun illegally send kept him in the illegal confinement and cause serious injury to him which resulted is death. 

There is no eye-witness in this case so prosecution has to prove it by the circumstantial evidence. Every circumstantial evidence must be proved and if the circumstance do not give any conclusive proof then the accused cannot be convicted by the circumstance evidence. The prosecutation cross-examined nine witness and try to established three circumstantial evidence ground. First circumstantial evidence is when Arun was taken by the abdul bari he was completely sound health by that time this was confirmed by the p.w 8 Anwar bhuiyan. Second circumstantial evidence is when arun was taken to the roaman police station he was brutally beaten by the police. when Arun was send to the jail custody p.w. 1 giasuddin and deputy jailor confime that arun was injured by that time. P.W 1 asked arun what is reason behind that injury he said he was beaten by the police. Also when Aruns father and his maternal uncle visit to the police station they hear arun was screaming from inside. Arun father saw Dlewar hossain, bashirul islam, Osman goni beaten his son. Later o’c baharul islambeaten his with lathi. When lathi was broken baharul beaten him by hocky stick. Third circumstantial evidence is that when arun taken to the jail custody there is an injury in aruns body. Also in the jail custody warrant it also written that arun has an outside injury and a medical certificate was attached in the custody warrant. So under penal code section 34 all the accused has a common intention among them. As under this section three condition id must fulfilled is that the act is done by several person, furtherance with the common intention, and everyone will be liable as if it done by him alone. Also section 302 will apply for murder of the person by the confinement illegally. 

Defence 

The defence case is that arun was arrested by the 25.10.86 and the nest day arun was handed over to the Chief Metropolitian Magistrates court and thereafter arun was taken to the Daka central jail as an under trail prisoner. Also defence alleged that the injury was found in the aruns body it might have been caused by some unknown persons after being despatched from roman thana police. It is also case in the defence that Arun died as a result of cholera from which he was siffering form. Doctor reports also supported the defence case that Arun was in loose motion while he was in the hands of the jailors.  It’s also in the case of defence that there is no pre-concert action on the part of the accused appellants to cause injury to the Arun or to take any money from the Arun. Prosecutation say their first circumstantial evidence is abdual bari brought arun to police custody they had no common intention. Abdul bari just followed the order of the o/c. they had no prior knowledge about the torture. 

Judgement: 

The Accused appellant no intention to injuries arun as non-vital part of the body was injured. That non vital part of the body is injured that indicate that had no intention to cause him death excepting beating. But it should be take into consideration that they had a knowledge how much beaten can a men can died. The learned session judge convicted them under section 302 along with section 34 under the penal code. Section 34 will apply when the common intention they do is achieved and all person are participated equally. Mere formal common intention is not enough unless the object for which the common intention has been formed is achieved. In the case as we found from the evidence on record that the common intention was to extort money and torture victim Arun who was in the police custody.

 Because for their serious beaten on aruns body Shafiqual Islam alias arun lost his life. If he taken in the proper time in the hospital when he was send in the jail custody his can be saved. We can avoid aruns death. In examined all the circumstantial evidence he court held that Accused appellants Baharul Islam, Dlewar Hossain, Osman goni and Bashirul Islam should be reduced the sentence of this accused appellants. The punishment was deducted to 5years from 10 years and each of every person shall pay 50000 for defult for suffer R.I. for further one year. The appeal is dismissed. 

Also abdul bari is accused has he had no intention to injury Arun even he had no knowlwdge about anything what their seniors wants to do. Abdul bari was just following the seniors commands. So abdul bari is totally innocent in this matter and he accuted from this case.

Final decision:

They no found guilty under section 34 along with section 302. As when Shafiqual islam alias arun was died he was in the jail custody. He was into the police custody. They had no common intention to cause him death. The Accused appellant wants to torture and extort money from the Arun. But later he died because of injury. But we take into consideration is that they had a knowledge that how much they can torture and the torture go to that extended that a person can died. Also in the prosecutation has no eyes witness expect circumstantial evidence. circumstantial must be proven each and every chain. Another is that the procetutation failed to answer that their a delay to taking arun in the jail custody mean that time where was he was. The circumstantial evidence first alleged was failed  to apply 34. That’s whys the 34 section joint liability along with 302 murder will no apply as the accused appellant has not common intention to murder him. But the sentenced must be reduced but cannot fully waived.