Credibility of testimony depends on judicial evaluation of the totality

(From previous issue)

40. It is true that crime like rape to death is shocking in nature and also, revolting. The Crime is against Society and humanity, but the prosecution convicted the accused merely on I suspicion that the accused committed rape to death. There cannot be conviction on mere suspicion or presumption. The commission of rape to death must be proved. The presumption cannot take the place of positive evidence, (1970 Pak Crl: L.J. 166),
41. It further appears to us that the instant case is absolutely a case of no evidence but the Court below without any legal evidence convicted the accused in moral view. Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence.
42. The accused was convicted merely on suspicion without any legal evidence. To that end in view, law is now well settled that suspicion or doubt however strong it might be cannot take place of evidence or there be slightest doubt as to the involvement of the accused in the crime, he cannot be convicted. With this regard reliance are being placed in the cases of Abdul Haq vs State, 14 BLT 485, Fazu alias Fazlur Rahman vs State 1 BLC 558, Rekatfullah vs State, 13 DLR 750. It is further held in the case reported in AIR 1921 (PC) 69, that the decision of the Court must rest upon legal ground established by legal testimony from the prosecution.
43. More so in all respect, the convict is also entitled to benefit of doubt. In the case of Safder Ali vs Crown 5 DLR (FC) 107 held:-
“In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt.”
44. So, there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime of rape. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.
45. According to the submissions from prosecution and observations made by the Tribunal, it indicate that the accused remained absconding from the place of occurrence for certain period, which is a circumstances leading to the inference of guilt. In our view it’ is mere submissions and observation of the Court below. The prosecution measurably failed to establish by evidence that soon after the occurrence, the accused had any responsibilities to discharge his duties towards the occurrence. It is well settled that mere abscondence cannot always be a circumstances leading to the inference of guilt of the accused.
In this case, there is no evidence against the accused. Hence their subsequent abscondence cannot be treated as a circumstances leading to the inference of involvement in the crime. Mere abscondence cannot always be a circumstance which should lead to an inference of guilt of the accused. Sometimes out of fear and self respect and to avoid unnecessary harassment even an innocent person remain absconding for sometime.
46. With this regard reliance are being placed in the cases of Monsur Ali vs State 13 BLC 196. Similar views were taken in the cases of State vs Badsha Molla, 41 DLR 11, State vs Mofijuddin 10 BLC 93, State vs Lalu Mia, 39 DLR (AD) 117, State vs Sree Ranjit Kumer Promanik, 45 DLR 660, Ali vs Crown 6 DLR (WP) 52, Rahman vs State of up AIR 1572 (SC) 110, Shajahan vs State 46 DLR 575, Mojibur Rahman vs State 13 MLR 88.
47. Moreover the impugned judgment and order of conviction and sentence in its entirety
is not well founded in the facts and circumstances of the case. Therefore, the submissions advanced by the learned Deputy Attorney General are not the correct exposition of law. Therefore, we are unable to accept his submissions. On the contrary submissions advanced by the learned Counsels for the defence prevail and appear to, have a good deals of force.
48. In the light of discussions made above and the preponderant judicial views emerging out of the authorities refer to above we are of the view that the prosecution measurably failed to prove the charge against the condemned prisoners beyond all reasonable doubt. Thus the reference having no merit fails.
In the result:-
(a) Death reference No. 02 of 2007 is rejected.
(b) The impugned Judgment and order of conviction and sentence dated 22-012007 passed by learned Additional Sessions Judge, Lashmipur, in Session Case No. 34 of 1999, is hereby setaside. The condemned-prisoners are found not guilty and acquitted from the charge.
 (c) Let condemned-prisoners Abdul Quiyum, Abdul Jalil Talukder, Md. Shahabuddin be set at liberty if not detained in any other case.
 (d) The Court below is directed to re-call the process issued against absconding accused Ashraf.
(e) Accordingly all the appeals are allowed.
The Office is directed to send down the records at once.