Khalil Paeda vs State (2018) 70 DLR AD 126

 

Fact of the Case:

The appellants and others assassinated Abul Kalam Peada on 23-8-1999 at a tea stall in Barisal. The Druta Bichar Tribunal found them guilty of the offense punishable under sections 302/34 of the Penal Code and sentenced Mamun Peada to death and others to life imprisonment for life with a fine. The High Court Division altered the convictions of the appellants and commuted the sentence of Mamun, and maintained the sentence of other two appellants. The court stated that the appellants did not intend to kill the victim but some intended to cause injury. The court held that the individual accused's acts are distinguishable and cannot be grouped into one category as having the same end result or knowledge that injury caused would lead to death. The court also held that the blows dealt by Khalil, Mamun, Mizan, and Jafor cannot be considered outside clause 3 of section 300. These four accused are liable to be convicted and sentenced under section 302/35 of the Penal Code.

 

The appellants' counsel argues that the High Court Division acted illegally in convicting them under sections 302/35, citing their actions as attracting clause "Thirdly" of section 300 without determining the injuries. Medical evidence shows death was caused by septic shock of gangrene after six days, making the conviction not maintainable. The counsel admits the appellants' participation in the incident but does not press the appeal on merit.

 

Issues of the Case:

1) In which cases section 35 of Penal Code will be applicable, and in which cases clauses 3 of section300 of Penal Code will be applicable?

2) Whether the accused has previous consent, common intention, or particular knowledge to commit the offense?

3) Whether the accused knowledge that the injuries they were intending to cause were sufficient in the ordinary course of nature to cause death?

4) Whether the acts of the appellants were murder or culpable homicide not amounting to murder?

 

Decision:

The High Court Division made an error in finding the accused guilty under sections 302/35 and awarding life imprisonment to all accused. If section 35 were to apply, the sentences would be different. The appellants' conviction was altered to one under section 304, part I, read with section 34 of the Penal Code and sentenced to 12 years of rigorous imprisonment with a fine of taka fifty thousand each. The fine would be paid to the victim's widow or children. The appeals were dismissed.

Justification:

1) Section 35 requires knowledge or intent from each accused before they can be held liable. If the criminal act is the result of a common intention under section 34, then every person involved are responsible for the total offense, regardless of their share in the perpetration. If section 35 is applied, all accused persons cannot be sentenced for the same period.

2) The High Court Division has failed to distinguish between criminal knowledge and criminal intention done by several persons who join in the acts with such knowledge or intention, those cases which cannot be presumed but must be expressly proved. The facts proved by the prosecution are that the accused had shared common intention of causing the injuries and they used sharp weapons and severed one leg. These facts lead to believe that the accused persons caused the injuries with an intention of causing grievous injuries which were likely to cause death.

3) The medical evidence found as many as five injuries on the person of the victim "the cause of death was a septic shock due to gas gangrene resulting from injuries." Therefore, there is no doubt that they intentionally caused the injuries which were grievous in nature and that in the intervening period secondary factor "gas gangrene" had developed which no doubt caused the death. The doctor did not apply his mind in giving his opinion as to the cause of death but according to Modi, the author of Medical Jurisprudence, observed remote causes of death due to injury are responsible, if it occurs after the infliction of the injury.

4) In the absence of any definite opinion by the doctor that the injuries caused by the accused on the person of the victim were sufficient in the ordinary course of nature to cause death, clause "Thirdly" cannot be applicable in this case. Other three clauses are not applicable to its remotest corner. The acts of the accused persons will no doubt attract culpable homicide, but if neither of the clauses of section 300 attracts the offence, it is a culpable homicide not amounting to murder.

 

Cases Cited:

Ghurey vs Rex, AIR 1949 All 342; Anda vs State of Rajestan, AIR 1964 SC 148; Afrahin Sheikh vs State of West Bengal, 1964(2) CriLJ 350; Emperor vs MG A Epe ILR 14 Rangoon 716 = AIR 1936 Rangoon 421; King vs Abor Ahmed, AIR 1937 Rangoon, 396; Emperor vs MGE San Pai, AIR 1936 Rangoon, 444; Reg vs Flyror. (1968) 16 WR England 319; Davasis Yohannan vs State, AIR 1958 Kerala 207 and Briton’s Limited vs Turvy, (1905) AC 230

Written by---
MST.Sultana Yasmin
Department of Land Management and Law
Jagannath University, Dhaka