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April 25, 2004

Court has no discretion to award sentence less than the limit ordained

High Court Division (Criminal Appellate Jurisdiction)
Criminal Appeal No. 1247 of 1993
Dulal Madhu
V
The State
Before Mr. Justice Mr. AK Badrul Huq and Mr. Justice Syed Mahmud Hossain
Date of Judgement: April 16, 2003
Result: Appeal dismissed

 

Background
A.K. Badrul Huq, J: Accused-appellant faced trial on a proper charge under section 326A of the Penal Code and was convicted. Awarding of a sentence is consequential and incidental to conviction. Section 326A prescribes two penalties; one is death and the other is imprisonment for life. Court has no discretion to award sentence less than the limit ordained. In brief the fact is Nilima Rani Roy (PW2) a school going girl is the victim of crime. The crime had been attributed to Dulal Madhu. The case in hand presents a dehumanising episode of throughing acid on Nilima Rani Roy by Dulal Madhu. The unfortunate incident took place on the fateful night of 24.7.1992 in her own house when she was on bed with her mother. Following commission of offence law was set on roll on laying a First Information Report with Kotalipara Police Station by Ruhi Das Roy as Informant. Accused Dulal Madhu faced trial before learned Sessions Judge, Gopalganj in Sessions Case No. 46 of 1992 having been charged of offence under section 326A of the Penal Code. Prosecution to bring home charge against accused Dulal Madhu examined eight (8) witnesses.

Learned Sessions Judge on a meticulous evaluation and exploration of evidences, materials on record, fact and circumstances of the case found that prosecution could successfully prove that accused Dulal Madhu on the night of incident disfigured the face of Nilima Rani Roy on doling out acid on her face and it could bring home the culpability of the accused Dulal Mahdu beyond all reasonable doubt. Learned Sessions Judge positively found that the accused Dulal Madhu committed the offence of section 326A of The Penal Code. He also found that turning down the marriage proposal of accused Dulal Madhu by victim Nilima Rani Roy was the cause for perpetration of the offence. In awarding sentence learned Sessions Judge took a soft hearted view and imposed sentence of life imprisonment instead of death penalty. Thus, it convicted accused Dulal Madhu imprisonment for life and, also, a fine of Taka 5,000/-, in default of payment of fine he was to undergo Rigorous Imprisonment for a further period of three (3) months more. Rightness of the judgement of conviction and sentence has been ventured to be bombarded by convict Dulal Madhu on presentation of this Criminal Appeal before this Court. He submitted two grounds to substantiate his appeal, a) Prosecution failed to bring home charge of section 326A of the Penal Code against accused-appellant, b) and offence of section 335 of the Penal Code and not section 326A of the Code could be attracted to accused-appellant and conviction under section 326A is liable to be altered to one under section 335 of The Penal Code.

Deliberation
Rejoinder to the contentions pressed from the side of accused-appellant has been offered from the side of State respondent in bringing home contention that the prosecution could prove charge under section 326A of The Penal Code beyond all reasonable doubt. And judgement recorded by learned Sessions Judge in awarding conviction and imposing penalty upon accused-appellant is well founded on law and fact. He also submitted that sentence cannot be said to be severe one and minimum sentence prescribed by law had been awarded.

Permanent disfiguration of head or face is sixth kind of "Grievous Hurt" enumerated in section 320 of The Penal Code. Section 326 prescribes penalty for voluntarily causing Grievous Hurt by dangerous weapons or means. Section 326A, which has been inserted in the Penal Code by ordinance No. LXIX of 1984 lays down punishment as death or imprisonment for life and, also, fine for voluntarily causing Grievous Hurt in respect of both eyes, head either by gouging out the same or by means of any corrosive substance or head or of face by means corrosive substance and punishment.

We ourselves in the exercise of our appellate power, also, re-examined and reassessed evidences of PW 2 and PW 3 and we, also, find that evidences are worthy of credit. From the above it became manifestly clear that injuries caused on cheek, lips, throat, chest, legs, wrist and waist had been flamed by corrosive substance which was acid.

Section 335 enjoins that whoever voluntarily caused grievous hurt on grave and sudden provocation, he would be punished with imprisonment of eight description for a term which may extend to four years, or with fine which may extend to two thousand taka or with both.

Section 335 is not at all attracted in respect of the offence carried out by accused-appellant. The question of voluntarily causing grievous hurt on grave and sudden provocation by accused-appellant did not and does not arise at all.

Accused-appellant faced trial on a proper charge that is under section 326A of the Penal Code and he was, also, convicted on a proper and appropriate charge. Accused-appellant committed the heinous offence of section 326A of the Penal Code. It cannot be at all suggested that accused-appellant committed offence of section 335 of the Penal Code. The contention advanced from the side of accused-appellant is absolutely misconceived and untenable. First branch of contention having been bereft of any substance stands rejected.

Second breach of contention is now being addressed. Awarding of sentence is consequential and incidental to conviction. Section 326A of The Penal Code prescribes two penalties, one is death and other is imprisonment for life and fine also.

Legislature totally disfavours the sentence to plummet below the limit prescribed and Court has no discretion to award sentence less than the limit ordained. Court cannot go against the Legislative mandate.

The office is extremely brutal and revolting, which shocks judicial conscience. In such a shocking nature of crime as the one before us it was necessary to impose such maximum punishment under the law as means of social necessity which would work as deterrent to other potential offenders. Learned sessions Judge took a lenient view and instead of imposing maximum punishment applied minimum punishment prescribed by law, which is 'imprisonment for life'. No interference in respect of awarding of sentence upon accused appellant is warranted. Prosecution could substantially prove the charge beyond all reasonable doubt through legal evidences, materials on record, fact and circumstances of the case. We are in full agreement with the decisions rendered, reasons canvassed in arriving at decisions and conclusion reached by learned Sessions Judge in awarding conviction and imposing sentence upon accused-appellant Dulal Madhu. Learned Sessions Judge has awarded a fine of Taka 5,000/- upon accused-appellant and in default of payment of fine he was to undergo Rigorous Imprisonment for three (3) months more. In the even of realisation of fine of Taka 5,000/- that amount shall be paid to the victim Nilima Rani Roy (PW 2) as compensation or solace towards irreparable injury she sustained and the pain which she will endure till her death.

Decision
Resultantly, Criminal Appeal No. 1247 of 1993 preferred by accused-appellant Dulal Madhu stands dismissed. Judgment of conviction and sentence dated 23.5.1993 passed by learned Sessions Judge, Gopalganj in Sessions Case No 46 of 1992 arising out of Kotalipara Police Station Case No. 2 dated 28.7.1992 corresponding to GR No 26 of 1992 is maintained.

Mr. Syed Ziaul Karim, for appellant. Mr. Md. Helal Uddin Mollah, Deputy Attorney General with Mr. Mohammed Abdul Baset, Assistant Attorney General for State Respondent.