Appellate Division :
(Criminal)
Syed Mahmud Hossain J
Md Imman Ali J
Hasan Foez Siddique J
Mahabur Sheikh alias Mahabur …….Petitioner
vs
State, represented by the Deputy Commissioner, Narail………Respondent*
Judgment June 20th, 2014.
Evidence Act (I of 1872)
Section 106
Burden of proving fact especially within knowledge-Under Section 106 of the Act when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This principle has been applied in many cases where the wife has been found killed in the house of the husband where they reside together. In such circumstance, the husband will have to prove by positive evidence that he was absent from the house when his wife was killed or explain by evidence how she came to meet her death. (19)
Government of the People’s Republic of Bangladesh vs Md Shafiqul Islam, 43 DLR (AD) 92 ref.
Md Zakir Hossain, Advocate instructed by Sufia Khatun Advocate-on-Record-For the Petitioner.
None Represented-For the Respondent.
Judgment
Md Imman Ali J: This criminal petition for leave to appeal is directed against the judgment and order dated 16-1-2011 passed by a Division Bench of the High Court Division in Death Reference No. 150 of 2005 with Criminal Appeal No. 4256 of 2005 and Jail Appeal No. 1180 of 2005 rejecting the reference and dismissing the appeals, altering the conviction and sentence.
2. The relevant facts, for disposal of the case, are that the deceased Kohinoor was married with accused Mahabur Sheikh and their conjugal life continued for four years and it ended with the diabolical murder of the victim, wife. The victim used to reside with her husband in her conjugal life. On 23-9-2003 at about 9-00 pm on getting information that the accused assaulted his wife Kohinoor for demand of dowry, the informant Md Kamal Biswas being accompanied by Anwara Begum, Akter Biswas, Rejaul Sheikh and Salam Biswas rushed to the place of occurrence, i.e. the dwelling house of the petitioner Mahabur Sheikh. In their presence accused Mahabur Sheikh became aggressive and started beating his wife Kohinoor despite their resistance. Thereafter, the victim Kohinoor instantly died there. Further prosecution case is that the informant and his companions found the dead body of Kohinoor lying on veranda of the place of occurrence hut. On the following morning at 10-35 am the informant Md Kamal Biswas lodged the FIR with Lohagara Police Station upon which Lohagara PS Case No. 16 dated 24-9-2003 was started under section Il(ka) of the Nari-o-Shishu Nirjatan Daman Act, 2000 against the accused petitioner only.
3. After investigation police submitted charge sheet being charge sheet No. 184 dated 17- 12-2003 against the accused Mahabur Sheikh under Section 11 (Ka) of the Nari-o-Shishu Nirjatan Daman Act, 2000 and the accused remained absconding.
4. The case record was transmitted to the learned Judge, Nari-o-Shishu Nirjatan Daman Tribunal, Narail, who took cognizance of the offence under section II(Ka): Nari-o-Shishu Nirjatan Daman Ain, 2000.
5. Thereafter, on 13-3-2004 the accused petitioner surrendered before the Tribunal and obtained bail.
6. During trial charge was framed under Section ll(ka) of the Nari-o-Shishu Nirjatan Daman Act, 2000 against the accused petitioner which was read over to the accused to which he pleaded not guilty and claimed to be tried.
7. In order to substantiate the charge against the accused petitioner the prosecution in all examined 7 witnesses but the defence examined none.
8. After conclusion of examination of the witnesses, the petitioner was examined under section 342 of the Code of Criminal Procedure during which he again pleaded his innocence.
9. The defence case as it transpires from the trend of cross examination is that he is innocent and he has been falsely implicated in this case out of suspicion and enmity.
10. After conclusion of trial the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Narail by his judgment and order dated 4-10-2005 convicted the accused under Sections 11 (Ka) of the Nari-o-Shishu Nirjatan Daman Act, 2000 (amended in 2003) and sentenced him to death.
11. Reference was made under Section 374 of the Code of Criminal Procedure which was numbered as Death Reference No. ISO of 2005 and the petitioner preferred Criminal Appeal No. 4256 or 2005 and Jail Appeal No. 1180 of 2005 before the High Court Division.
12. By the impugned judgment and order, the High Court Division rejected the reference and dismissed the appeals altering conviction to one under section 302 of the Penal Code and commuting the death sentence to one of imprisonment for life with a fine of Taka 2,000 in default, to suffer rigorous imprisonment for a further period of 3(three) months.
13. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the High Court Division the petitioner has filed the instant criminal petition for leave to appeal before this Division.
14. Mr Md Zakir Hossain, learned Advocate appearing on behalf of the petitioner submitted that out of 7 witnesses none supported the prosecution case that the petitioner killed his wife and even they did not say that at the time of occurrence petitioner was present in the place of occurrence but the High Court Division failed to follow the principle of criminal justice and dismissed the appeal by the impugned judgment and order which is liable to be set-aside. The learned Advocate further submitted that the High Court Division wrongly observed that, abscondance of the petitioner for long time was considered to be confirmatory and incriminating circumstances, but failed to consider that the petitioner voluntarily surrendered before the court and that mere absence for time being may not be the basis of conviction and, as such, the impugned judgment and order suffered from serious error. The learned Advocate also submitted that the prosecution claimed that the accused petitioner killed the victim upon demanding dowry but none or the prosecution witnesses said that the accused tortured or demanded dowry and the prosecution miserably failed to establish the prosecution story beyond reasonable doubt but the High Court Division most erroneously dismissed the appeals of the petitioner which is liable to be set aside. The learned Advocate lastly submitted that the High Court Division convicted the petitioner only on the point that the alleged victim died in her husband’s house and the husband has to explain satisfactorily, but failed to consider the cardinal principle of law that husband will not be liable merely because the wife died in husband’s house, if his presence is not proved by independent witnesses. In the instant case prosecution failed to prove that accused petitioner was present at the relevant time and as such the impugned judgment and order of conviction and sentence should be set aside.
15. No one has appeared to represent the respondents.
16. We have considered the submissions of the learned Advocate or the petitioner and perused the impugned judgment and other connected papers on record.
17. We find from the impugned judgment that admittedly the matter had been compromised outside the court as a result of which the prosecution witnesses did not support the charge of murder upon demanding dowry. On the other hand, the witnesses tried to establish that it was a case of suicide by hanging. However, the High Court Division elaborately discussed the medical evidence which clearly pointed to the victim having been done to death by throttling.
18. With regard to the question of presence of the accused in the house where his wife, the victim died, the High Court Division came to a finding that the accused was not able to prove his ‘alibi’. The High Court Division further observed that according to PW 2 the place of business of the accused is about 3 miles from the place of occurrence house where the accused lived along with his wife. The incident took place at 9-00 pm in the dwelling house of the accused which remains undisputed and in the absence of any satisfactory explanation the finger points to the guilt of the accused husband. By reference to the case of the State, represented by the Solicitor to the Bangladesh vs Md Shafiqul Islam alias Rafique reported in 43 DLR (AD) 92 the High Court Division concluded that there is strong and consistent circumstantial evidence which irresistibly point to the guilt of the accused and on the contrary the accused failed to prove the plea of ‘alibi’ as well as to explain his wife’s death.
19. It is by now a well established principle that under section 106 of the Evidence Act when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This principle has been applied in many cases where the wife has been found killed in the house of the husband where they reside together. In such circumstance the husband will have to prove by positive evidence that he was absent from the house when his wife was killed or explain by evidence how she came to meet her death.
20. In the instant case the High Court Division has observed that the inability of the accused to prove his ‘alibi 1 in conjunction with his absence from his wife’s burial and long abscondance thereafter points to his guilt.
21. In view of the elaborate discussion of the High Court Division on all the relevant matters involved in the case we are of the opinion that the High Court Division upon proper consideration of the evidence and materials on record rejected the reference and dismissed the appeal, altering the conviction and sentence.
We do not find any reason to interfere with the decision of the High Court Division. Accordingly, the criminal petition for leave to appeal is dismissed.
(Criminal)
Syed Mahmud Hossain J
Md Imman Ali J
Hasan Foez Siddique J
Mahabur Sheikh alias Mahabur …….Petitioner
vs
State, represented by the Deputy Commissioner, Narail………Respondent*
Judgment June 20th, 2014.
Evidence Act (I of 1872)
Section 106
Burden of proving fact especially within knowledge-Under Section 106 of the Act when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This principle has been applied in many cases where the wife has been found killed in the house of the husband where they reside together. In such circumstance, the husband will have to prove by positive evidence that he was absent from the house when his wife was killed or explain by evidence how she came to meet her death. (19)
Government of the People’s Republic of Bangladesh vs Md Shafiqul Islam, 43 DLR (AD) 92 ref.
Md Zakir Hossain, Advocate instructed by Sufia Khatun Advocate-on-Record-For the Petitioner.
None Represented-For the Respondent.
Judgment
Md Imman Ali J: This criminal petition for leave to appeal is directed against the judgment and order dated 16-1-2011 passed by a Division Bench of the High Court Division in Death Reference No. 150 of 2005 with Criminal Appeal No. 4256 of 2005 and Jail Appeal No. 1180 of 2005 rejecting the reference and dismissing the appeals, altering the conviction and sentence.
2. The relevant facts, for disposal of the case, are that the deceased Kohinoor was married with accused Mahabur Sheikh and their conjugal life continued for four years and it ended with the diabolical murder of the victim, wife. The victim used to reside with her husband in her conjugal life. On 23-9-2003 at about 9-00 pm on getting information that the accused assaulted his wife Kohinoor for demand of dowry, the informant Md Kamal Biswas being accompanied by Anwara Begum, Akter Biswas, Rejaul Sheikh and Salam Biswas rushed to the place of occurrence, i.e. the dwelling house of the petitioner Mahabur Sheikh. In their presence accused Mahabur Sheikh became aggressive and started beating his wife Kohinoor despite their resistance. Thereafter, the victim Kohinoor instantly died there. Further prosecution case is that the informant and his companions found the dead body of Kohinoor lying on veranda of the place of occurrence hut. On the following morning at 10-35 am the informant Md Kamal Biswas lodged the FIR with Lohagara Police Station upon which Lohagara PS Case No. 16 dated 24-9-2003 was started under section Il(ka) of the Nari-o-Shishu Nirjatan Daman Act, 2000 against the accused petitioner only.
3. After investigation police submitted charge sheet being charge sheet No. 184 dated 17- 12-2003 against the accused Mahabur Sheikh under Section 11 (Ka) of the Nari-o-Shishu Nirjatan Daman Act, 2000 and the accused remained absconding.
4. The case record was transmitted to the learned Judge, Nari-o-Shishu Nirjatan Daman Tribunal, Narail, who took cognizance of the offence under section II(Ka): Nari-o-Shishu Nirjatan Daman Ain, 2000.
5. Thereafter, on 13-3-2004 the accused petitioner surrendered before the Tribunal and obtained bail.
6. During trial charge was framed under Section ll(ka) of the Nari-o-Shishu Nirjatan Daman Act, 2000 against the accused petitioner which was read over to the accused to which he pleaded not guilty and claimed to be tried.
7. In order to substantiate the charge against the accused petitioner the prosecution in all examined 7 witnesses but the defence examined none.
8. After conclusion of examination of the witnesses, the petitioner was examined under section 342 of the Code of Criminal Procedure during which he again pleaded his innocence.
9. The defence case as it transpires from the trend of cross examination is that he is innocent and he has been falsely implicated in this case out of suspicion and enmity.
10. After conclusion of trial the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Narail by his judgment and order dated 4-10-2005 convicted the accused under Sections 11 (Ka) of the Nari-o-Shishu Nirjatan Daman Act, 2000 (amended in 2003) and sentenced him to death.
11. Reference was made under Section 374 of the Code of Criminal Procedure which was numbered as Death Reference No. ISO of 2005 and the petitioner preferred Criminal Appeal No. 4256 or 2005 and Jail Appeal No. 1180 of 2005 before the High Court Division.
12. By the impugned judgment and order, the High Court Division rejected the reference and dismissed the appeals altering conviction to one under section 302 of the Penal Code and commuting the death sentence to one of imprisonment for life with a fine of Taka 2,000 in default, to suffer rigorous imprisonment for a further period of 3(three) months.
13. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the High Court Division the petitioner has filed the instant criminal petition for leave to appeal before this Division.
14. Mr Md Zakir Hossain, learned Advocate appearing on behalf of the petitioner submitted that out of 7 witnesses none supported the prosecution case that the petitioner killed his wife and even they did not say that at the time of occurrence petitioner was present in the place of occurrence but the High Court Division failed to follow the principle of criminal justice and dismissed the appeal by the impugned judgment and order which is liable to be set-aside. The learned Advocate further submitted that the High Court Division wrongly observed that, abscondance of the petitioner for long time was considered to be confirmatory and incriminating circumstances, but failed to consider that the petitioner voluntarily surrendered before the court and that mere absence for time being may not be the basis of conviction and, as such, the impugned judgment and order suffered from serious error. The learned Advocate also submitted that the prosecution claimed that the accused petitioner killed the victim upon demanding dowry but none or the prosecution witnesses said that the accused tortured or demanded dowry and the prosecution miserably failed to establish the prosecution story beyond reasonable doubt but the High Court Division most erroneously dismissed the appeals of the petitioner which is liable to be set aside. The learned Advocate lastly submitted that the High Court Division convicted the petitioner only on the point that the alleged victim died in her husband’s house and the husband has to explain satisfactorily, but failed to consider the cardinal principle of law that husband will not be liable merely because the wife died in husband’s house, if his presence is not proved by independent witnesses. In the instant case prosecution failed to prove that accused petitioner was present at the relevant time and as such the impugned judgment and order of conviction and sentence should be set aside.
15. No one has appeared to represent the respondents.
16. We have considered the submissions of the learned Advocate or the petitioner and perused the impugned judgment and other connected papers on record.
17. We find from the impugned judgment that admittedly the matter had been compromised outside the court as a result of which the prosecution witnesses did not support the charge of murder upon demanding dowry. On the other hand, the witnesses tried to establish that it was a case of suicide by hanging. However, the High Court Division elaborately discussed the medical evidence which clearly pointed to the victim having been done to death by throttling.
18. With regard to the question of presence of the accused in the house where his wife, the victim died, the High Court Division came to a finding that the accused was not able to prove his ‘alibi’. The High Court Division further observed that according to PW 2 the place of business of the accused is about 3 miles from the place of occurrence house where the accused lived along with his wife. The incident took place at 9-00 pm in the dwelling house of the accused which remains undisputed and in the absence of any satisfactory explanation the finger points to the guilt of the accused husband. By reference to the case of the State, represented by the Solicitor to the Bangladesh vs Md Shafiqul Islam alias Rafique reported in 43 DLR (AD) 92 the High Court Division concluded that there is strong and consistent circumstantial evidence which irresistibly point to the guilt of the accused and on the contrary the accused failed to prove the plea of ‘alibi’ as well as to explain his wife’s death.
19. It is by now a well established principle that under section 106 of the Evidence Act when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This principle has been applied in many cases where the wife has been found killed in the house of the husband where they reside together. In such circumstance the husband will have to prove by positive evidence that he was absent from the house when his wife was killed or explain by evidence how she came to meet her death.
20. In the instant case the High Court Division has observed that the inability of the accused to prove his ‘alibi 1 in conjunction with his absence from his wife’s burial and long abscondance thereafter points to his guilt.
21. In view of the elaborate discussion of the High Court Division on all the relevant matters involved in the case we are of the opinion that the High Court Division upon proper consideration of the evidence and materials on record rejected the reference and dismissed the appeal, altering the conviction and sentence.
We do not find any reason to interfere with the decision of the High Court Division. Accordingly, the criminal petition for leave to appeal is dismissed.
