Criminal-Question No-02 (Criminal Part) with Application for bail.

Post No -135

Criminal-Question No-02 (Criminal Part):

‘A’ was suffering from heart disease. He hired a taxi from Banani to take him to New Market. The taxi reached New Market and offered B Tk. 100 was not aware of the lines of from A. An altercation followi During the tusle B’ lifted fan, Bidermanded Tk. 20000d with sufficient force. As a result ‘A’ got his ribs fractured and died of rupture of the heart.

The Metropolitan Sessions, Judge, Dhaka by his judgment and order dated (20 January 2007; 20% November 2015, 07/July, 2021) found ‘B’ guilty of murder under section 302 of the Penal Code and sentenced him thereunder to suffer imprisonment for life and to pay a fine of Tk. 25000.00, in default, to suffer rigorous imprisonment for a further period of one year.

(a) Draft a petition of appeal challenging the aforesaid judgment and order of conviction and sentence passed by the learned Metropolitan Sessions Judge, Dhaka for presentation before the High Court Division mentioning the relevant Section under which the appeal can be filed.

(b) Draft an application for bail of the convict-appellant ‘B’ stating the section under which such application can be filed.

(Held on 2nd March, 2007,15th March, 2013,9th January, 2016). (প্রশ্ন বাংলায় (ফৌজদারী)ঃ এ হৃদরোগে ভুগছে। সে বনানী থেকে নিউ মার্কেটে যাওয়ার জন্য একটি ট্যাক্সী ভাড়া করলো। ট্যাক্সী চালকবি ‘এ’ এর অসুস্থতার কথা জানতো না। ‘এ’ যখন নিউ মার্কেটে পৌঁছে সে ট্যাক্সী ভাড়া বাবদ ১০০/-(একশত) টাকা দিল, ‘বি’ তখন ২০০/- (দুইশত) টাকা দাবী করলো। ফলে কিছু কথা কাটাকাটি হলো। ধস্তাধস্তির সময় ‘বি’ ‘এ’ কে শূন্যে তুলে যথেষ্ট জোরে মাটিতে আছড়িয়ে ফেললো। ফলে ‘এ’র পাজরের হাড় ভেঙ্গে গেল এবং তার হার্টের রক্তনালী ছিঁড়ে গিয়ে সে মৃত্যুবরণ করল। মহানগর দায়রা জজ, ঢাকা তার (২০শে জানুয়ারী ২০০৭: ২০ শে নভেম্বর ২০১৫:০৭ ই জুলাই ২০২১) তারিখের রায় এবং আদেশে ‘বি’ কে দন্ডবিধি আইনের ৩০২ ধারায় হত্যার জন্য দোষী সাব্যস্ত করে যাবজ্জীবন সশ্রম কারাদন্ড এবং ৫০০০/- (পাঁচ হাজার) টাকা জরিমানা অনাদায়ে আরও ১ (এক) বৎসরের সশ্রম কারাদন্ডের আদেশ দেন।

(ক) ঢাকার বিজ্ঞ মহানগর দায়রা জজ কর্তৃক প্রদত্ত উপরোক্ত রায় এবং দোখ সাব্যস্ত পূর্বক সাজার আদেশের বিরুদ্ধে মহামান্য হাইকোর্ট বিভাগে উপস্থাপনের জন্য আইনের সংশ্লিষ্ট ধারা উল্লেখ পূর্বক আপীলের একটি খসড়া দরখাস্ত প্রস্তুত করুন।

(খ) আইনের সংশ্লিষ্ট ধারা উল্লেখপুর্বক একটি জামিনের দরখাস্তের খসড়া দরখাস্ত প্রস্তুত করুন।

Answer to the question No. 02 (a).

DISTRICT: DHAKA.

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. OF 2022

To

Mr. Justice Hasan Foez Siddique, the Hon’ble Chief Justice of Bangladesh and his Companion Justices of the said Hon’ble Court.

The humble petition of the petitioner above named most respectfully-

SHEWETH:

1. That one Kamal Hossain son of ‘A’ (deceased) being an informant lodged an FIR with New Market Police Station against the Convict-appellant petitioner under section 302 of the Panel Code being New Market Police Station Case No. 35, dated 05.05.2017.

2. That the prosecution case in brief, is that the victim ‘A’ was a patient of heart diseases. On 01.01.2017 the victim’A’ hired a taxi cab to carry him from Banani to New Market. The taxi driver ‘B’ was not aware that ‘A’ was a patient of heart disease. When the taxi cab reached New Market ‘A’ offered ‘B’ Taka 100/- as fare, but B’ demanded taka 200/- thereafter an altercation followed over the matter between ‘A’ and ‘B’. During the tussle ‘B’ lifted ‘A’ and threw him on the ground with sufficient force, as a result ‘A’ got his ribs fractured and he died of his heart failure. Hence the case.

3. That the police after made/completion of investigation submitted charge sheet against the convict-appellant under section 302 of the Penal Code, 1860 being charge sheet No.201 dated 11-11-2017.

4. That the case was transferred to Metropolitan Session Judge, Dhaka and was registered as Metro. Session case No-115 of 2017, that on 11-11-2017 the learned Court of Metropolitan Session Judge, Dhaka took cognizance of the case and framed the charge against the accused appellant at which he pleaded not guilty. Photocopy of the said tender notice dated 03:03:2018 and the contract accepted by the Port Authority are annexed hereto and marked as ANNEXURE-AA-1.

5. That the learned trial Court examined 5 (five) prosecution witnesses and no defence witness was examined at the time of trial.

6. That it is further submitted that it appears from the post- mortem report that the victim died due to heart failure and as such the impugned order of conviction and sentence is illegal and liable to be set aside.

7. That being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the convict-appellant begs to prefer this criminal appeal before your Lordships on the following amongst other-

GROUNDS

I. For that the judgment and order of conviction and sentence is bad in law as well as facts and circumstances of the case.

II. For that the learned Court below convicted the appellant just on a surmise and conjecture which can never take the place of proof.

III. For that the evidence of P.Ws is contradictory upon which the sentence is illegal and it is not sustainable in law.

IV. For that in view of the F.I.R, charge sheet, charge and depositions of P.Ws the sentence is illegal and it is liable to be set aside.

V. For that the prosecution could not prove the case beyond reasonable doubt.

VI. For that the prosecution miserably failed to prove its case against the convict appellant.

VII. For that in absence of any eye witnesses in this case the sentence is not sustainable in law.

VIII. For that the prosecution did not produce any neutral witness of this case, as such the impugned conviction and sentence is liable to be set aside.

IX. For that there is every chance of acquittal of the appellant in the appeal.

X. For that the ingredients of section 302 of the Penal. Code had not been proved against the accused appellant and as such the conviction and sentence is illegal and cannot be sustained in law.

XI. For that the provision of section 342 of the Code of Criminal Procedure has not been complied in accordance with law.

XII. For that the learned Metropolitan Sessions Judge failed to consider a vital point of law as to place of occurrence and manner of incident and in the absence of such findings led an error of law and the order ofconviction and sentence is not sustainable in law and the same is liable to be set aside.

And for this act of kindness, your convict-appellant as in duty bound shall ever pray.

Answer to the question No. 02 (b) Application for bail. (above pending appeal)

DISTRICT: DHAKA.

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION (CRIMINAL APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. OF 2022

To

Mr. Justice Hasan Foez Siddique, the Hon’ble Chief Justice of Bangladesh and his Companion Justices of the said Hon’ble Court

The humble petition of the petitioner above named most respectfully-

SHEWETH:

1. That this application for bail arises out of the aforesaid appeal filed on 11.12.2021 against the judgment and order dated 07.07.2021 Passed by the Metropolitan Sessions Judge, Dhaka, in Metro. Session Case No. 115 of2017 arising out of New Market Police Station Case No. 35 dated 05.05.2017 corresponding to G.R. Case No 202 of 2017 convicting the convict-appellant under Section 302 of the Penal Code, 1860 and sentencing him to suffer imprisonment for life and to pay a fine of Tk. 25000/- in default, to suffer rigorous imprisonment for a further period of one year.

2. That the prosecution case in brief, is that the victim ‘A’ was a patient of heart diseases. On 01.01.2017 the victim ‘A’ hired a taxi cab to carry him from Banani to New Market. The taxi driver ‘B’ was not aware that ‘A’ was a patient of heart disease. When the taxi cab reached New Market ‘A’ offered ‘B’ Taka 100/- as fare, but B’ demanded taka 200/- thereafter an altercation followed over the matter between ‘A’ and ‘B’. During the tussle ‘B’ lifted ‘A’ and threw him on the ground with sufficient force, as a result ‘A’ got his ribs fractured and he died of his heart failure. Hence the case. Certified copy of the FIR is annexed hereto and marked as ANNEXURE-‘A’

3. That the P.W.-1 informant, son of the deceased stated that he ran over to the concerned police station ie. New Market Police Station and then informed the police and after arresting the convict-appellant he lodged the ejahar.

4. That the police after made/completion of investigation submitted charge sheet against the convict-appellant under section 302 of the Penal Code, 1860 being charge sheet No.201 dated 11-11-2017.

5. That the case was transferred to Metropolitan Session Judge, Dhaka and was registered as Metro. Session case No-115 of 2017, that on 11-11-2017 the learned Court ofMetropolitan Session Judge, Dhaka took cognizance of the case and framed the charge against the accused appellant at which he pleaded not guilty.

6. That the learned trial Court examined 5 (five) prosecution witnesses and no defence witness was examined at the time of trial.

7. That it is submitted that none of the other prosecution witnesses namely P.W. 2, P.W. 3, P.W. 4 and P.W.5 saw the occurrence in their own eyes and their depositions do not corroborate the prosecution case and as such the order of conviction and sentence is illegal and liable to be set aside.

8. That it is further submitted that it appears from the post- mortem report that the victim died due to heart failure and as such the impugned order of conviction and sentence is illegal and liable to be set aside.

9. That the prosecution did not produce any neutral witness of this case, as such the impugned conviction and sentence is liable to be set aside.

10. That there is every chance of acquittal of the appellant in the appeal. 11. That the appellant petitioner is the permanent citizen of Bangladesh and there is no chance of his absconsion if he is released on bail.

12. That it is stated that the accused appellant petitioner was arrested on 15.05.2017 and since then he is in jail and this is a case of no evidence and since he has got fair chance of success in the appeal he may be enlarged on bail for ends of justice.

And for this act of kindness the petitioner as in duty bound shall ever pray.

AFFIDAVIT

I Md: Monowar Hossain, son of Late Anowar Hossain and Most: Hasna Begum, of Village-Free School Street, Post Office- New Market-1205, Police Station New Market, District- Dhaka, aged about 35 years, by Faith-Muslim, by Profession- Business by Nationality- Bangladeshi by birth, ID No. 111122223333 do hereby solemnly affirm and say as follows:-

1. That I am petitioner and Tadbirkar of this writ petition and as such fully acquainted with the facts and circumstances of the case and as such I am competent to swear this affidavit.
2. That the statements of facts made in this petition are true to my knowledge and matters of records which I verily

COMMISSIONER OF AFFIDAVIT

SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION, DHAKA.

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