High Court Division (Criminal Appellate Jurisdiction) Judgment July 9th, 2012 Syed Md Ziaul Karim J ANM Bashir Ullah J State ………….Appellant vs Abdul Quiyum and others…………………condemned-prisoners Evidence Act (I of 1872) Section 139 Credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated securting. Legal evidence 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 …… (41) Absconding Mere abscondence cannot always be a circumstances 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. . ….. (45) Abdul Haq vs State, 14 BLT 485; Fazu alias Fazlur Rahman vs State 1 BLC 558; Rekatfullah vs State, 13 DLR 750; Monsur Ali vs State 13 BLC 196; 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 52; Rahman vs State of UP AIR, 1972 (SC) 110; Shajahan vs State 46 DLR 575; Mojibur Rahman vs State 13 MLR 88 and Safder Ali vs Crown 5 DLR (FC) 107 ref. MA Mannan Mohan. DAG with Md Osman Goni Khan, AAG and Md. Ensan Uddin Sheikh, AAG- -For the State [Death Reference No. 02 of 2007] Md Abdul Aziz Mia Mintu, Advocate-For the Condemned-Prisoners (As State defence lawyer) [Death Reference No. 02 of 2007] Md. Salah uddin Dolon, Advocate, with Omar Faruque, Advocate and Md Shirajum Monir, Advocate For the Convict-Appellants [Criminal Appeal No. 872 of 2007] Shirin Afroz, Advocate-For the Convict-Appellant [Jail appeal No. 42 of 2007] Hasna Begum, Advocate,-For the Convict Appellant [Jail Appeal No. 43 of 2007] Md. Bahar Uddin-al-Razi, Advocate-For the Convict-Appellant [Jail Appeal No. 44 of 2007] Judgment SM Ziaul Karim J : This reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Additional Sessions Judge, Lashmipur (briefly as Judge), for confirmation of death sentence of condemned-prisoners. 2. By the above appeals the appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 22-01-2007 passed by learned Judge in Session Case No. 34 of 1999 convicting the appellants under Section 302 of the Penal Code and sentencing each of them to death by hanging and also to pay a fine of Taka 30,000 each. 3. This death reference and all these appeals having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment. 4. The prosecution case as projected in the first information report (briefly as FIR) and unfurled at trial are that Nurjahan Begum (since deceased) wife of late Abdul Mannan being divorced used to reside alone at her own abode at north side of WAPDA dam south of Polli Mongol High School within village Raghunathpur PS Ramgati, Lashmipur (briefly as PO); her daughter Murshida (PW 8) was residing at her conjugal home with her husband Salauddin (PW 7). Since morning 1304-1998 her whereabouts was not known; her brother Md. Abdul Hye (PW 2) unsuccessfully searched her. Then the matter was intimated to local Chairman and at their advise the same was informed to local PS wherein it was recorded as Ramgati PS GDE No. 413 dated 16-04-1998. The matter in issue was inquired by one SI of Police of Ramgati PS who on 19-04-1998 furnished a report stating that one Abdul Quiyum and Abdul Jalil Talukder on 13-04-1998 at 7-00 PM assaulted and abused the deceased for her immoral act and no specific recommendation for offence was made for it. After about four months of the occurrence Abdul Hye (PW 2) as complainant filed a complaint before the Magistrate, first Class, Lashmipur against eighteen accused including the condemned-prisoners alleging that all the accused conjointly committed gang rape upon his sister Nurjahan. Consequently she died. Then her dead-body was thrown to river for causing disappearance of the evidence of offence. After occurrence the accused allured for compromise but with no effect. Then he filed the complaint which was then referred to local PS for recording it as FIR. With these allegations prosecution was launched by recording PS Case No. 06 dated 22-07-1998 corresponding to GR No. 478 of 1998. 5. The Police after investigation submitted charge-sheet under sections 302, 201,114 of the Penal Code accusing the condemned prisoners as accused. 6. Eventually, charge under sections 302, 201, 114 of the Penal Code was framed against accused which was read over to the accused on dock who pleaded not guilty and claimed to be tried and absconding accused Ashraf was defended by State defence lawyer. 7. In course of trial the prosecution in all produced thirteen witnesses out of fourteen charge-sheeted witnesses, of them examined twelve witnesses and one witness was tendered by the prosecution and the defence declined to cross-examine him. 8. After closure of the prosecution case the accused were examined under Section 342 of the Code and they again pleaded their innocence but led not evidence in defence. 9. The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It was divulged in defence that due to internal conflict between them, they were falsely implicated in this case. 10. After trial the accused were convicted as aforesaid. 11. The learned Deputy Attorney-General appearing for the State supports the reference and submits that PW 11 is the eye-witness who categorically stated the incident of beating of the accused upon the deceased. He adds that if believed conviction can be awarded relying on a single evidence. He submits that after considering the evidence on record the Court below rightly convicted the accused which calls for no interference by this Court. 12. The learned Counsels appearing for the condemned-prisoners by their common contention seek to impeach the impugned judgment and order of conviction and sentence on five fold arguments:- Firstly: It is absolutely a case of no evidence; Secondly: There are two contradictory prosecution case which seriously prejudiced the accused to initiate their defence case. Thirdly: The FIR was lodged after long lapse of time without any proper explanation of delay which cast a serious doubt upon the prosecution case; Fourthly: The judgment and order of conviction and sentence based on misreading and non consideration of evidence on record which cannot be sustained in the eye of law. Fifthly: The learned Judge convicted the accused considering their abscondence which cannot be an inference of guilt. 13. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions. 14. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge. 15. PW I Abul Khayer a local businessman. He deposed that on 13-4-1998 at about 7-30 PM accused Abdul Quiyum, Abdul JaIil Talukder, Ashraf and others raped the victim Nurjahan. He learnt it from the informant, Chowkidar Jashimuddin, Mohonlal Chandra Das, Abdus Salam and others; after occurrence the dead-body was carried by rickshaw by the accused to an unknown place. 16. In cross-examination he stated that he did not state about such facts of hearing of the occurrence to the IO. He denied the suggestion that he was deposing falsely. 17. PW 2 Abdul Hye is the informant but not eye witness to the occurrence. He deposed that about 2/2 years back his sister Nurjahan was gang-raped and killed by accused Monir Chowdhury, Jalal, Quiyum and others. He lodged the FIR. He did not see the occurrence, the PO was south of Polli Mongol High School. He proved the FIR (Exhibit 5). 18. The defence declined to cross-examine him. 19. PW 3 Shahjadi Begum wife of informant. She deposed that about three years back Nurjahan was raped and killed; she did not see the occurrence. The defence declined to cross-examine her. 20. PW 4 Mohonlal Das, Secretary of the local Union Parishad. He deposed that he was quite in the dark about the occurrence. The defence declined to cross-examine him. 21. PW 5 Md. Abul Kalam, a local Imam. He deposed that before 2-1/2/ 3 years back he heard from Birajuddin, Obaidul Haque and others that Rubel had entered into the house of Nurjahan and raped her. The defence declined to cross-examine him. 22. PW 6 Kamaluddin, Muazzin of a local mosque. He deposed that before 3/4 years back occurrence took place. He did not see the occurrence. The defence declined to cross-examine him. 23. PW 7 Salahuddin, son-in-law of deceased. He deposed that he knew nothing about the occurrence. The defence declined to cross-examine him. 24. PW 8 Murshida, daughter of deceased. She deposed that at the time of occurrence she was in her conjugal home and knew nothing about the occurrence. The defence declined to cross-examine her. 25. PW 9 Sukendra Bikash Das was tendered by the prosecution and the defence declined to cross-examine him. 26. PW 10 Balak Chandra Das, a local witness. He deposed that he knew nothing about the occurrence and he was declared hostile by the prosecution. The defence declined to cross-examine him. 27. PW 11 Joynal Abedin. He deposed that the occurrence took place before five years. After offering magrib prayer he was discussing with Rafiq, Delowar Hossain, Abul Kalam and others and found that accused Abdul Quiyum was beating one woman. He reached there and wanted to know the cause of such beating. Then he was informed that the said woman committed an immoral act with the son of Animesh. The woman was the sister of informant. After 15/20 months accused Abdul Jalil happened at the PO and also assaulted Nurjahan who became seriously ill. Then she was sent to doctor for treatment. At night 3 O’clock he came to know that Nurjahan succumbed to the injuries. He was examined by the I0. 28. In cross-examination he stated that he went to the PO for jiarat of his father’s graveyard. Accused Abdul Jalil was his cousin and he filed a partition suit against him about 15/20 years back. He denied the suggestion that he did not state the aforesaid facts to the I0 and deposing falsely. 29. PW 12 Obaidul Haq alias Odu Munshi a local witness. He deposed that before 5/6 years a woman was murdered but he had no knowledge who committed the murder; he was declared hostile by the prosecution. 30. In cross-examination by the prosecution he denied the suggestion that he was deposing falsely. 31. PW 13 Inspector Abdul Khaleq deposed that at the relevant time he was posted at Ramgati PS. He recorded the FIR and took up the investigation, visited the PO, recorded the statements of the witnesses; prepared sketch map with index (Exhibits. 2/1, 3, 3/1). He seized the copies of GD Entry and its report and prepared seizure list (Exhibits 4, 4/1). The seized documents were material Exhibits. i, ii and iii. He tried to find out the dead-body of the deceased. In his investigation he found that deceased was assaulted by the accused and then she was thrown to the river Meghna, After investigation he submitted charge-sheet accusing the condemned-prisoners as accused. 32. In cross-examination he stated that the name of accused Shahabuddin was not in the GD He denied the suggestion that being influenced by the local politician he submitted charge-sheet. 33. These are all of the evidence on record adduced by the prosecution to prove the charge. 34. The prosecution case was that the victim Nurjahan Begum was raped to death and then thrown to the river Meghna. The defence disowned such facts. 35. On going to the materials on record it transpires that prosecution in all examined twelve witnesses, of them two witnesses namely PW 10 Balak Chandra Das and PW 12 Obaidul Haq disowned the prosecution case. So they were declared hostile. PWs 1,4 and 5 are the local witnesses but they heard the occurrence. PW 2 is the informant, PW 7 son in law of the deceased. PW 8 is daughter of the deceased. They stated nothing about the prosecution case and complicity of the accused. PW 11 a witness hails from a far away. He merely witnessed the incident of beating. PW 13 is the 10 submitted the charge-sheet accusing the condemned-prisoners as accused. 36. We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation 01 the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration, a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor. b) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused. c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer. d) There must be clear and unequivocal proof of the corpus delicit. e) The hypothesis of delinquency should be consistent with all the facts proved. 37. Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence in spite of oath is of no avail. 38. It is pertinent to point out that there is no eye-witness to the occurrence. The case is absolutely rest upon the circumstantial evidence. 39. On appraisal of the evidence on record it transpires that PW 2 Md. Abdul Hye, is the brother of the deceased and informant of the case. He stated that about 21 years back his sister Nurjahan Begum was gang-raped and was killed by accused Monir Chowdhury, Jalal, Quiyum and others. He did not see the occurrence. Significantly this witnesses himself lodged the GD entry being No. 413 dated 16-04-1998 with Ramgati PS wherein he stated that his sister Nurjahan used to reside alone at PO and since 13-04-1998 her whereabouts was not known. The matter in issue was inquired by the local Police Station wherein a report was furnished to the effect that before occurrence she was found to commit some immoral act but in the said report no specific recommendation of offence was made. Later, after long lapse of four months this witnesses made a complaint before the Magistrate narrating some different facts and the same was referred to the Police Station for recording it as FIR and prosecution case was launched upon such allegations” PWs 1, 5, 6 were examined to corroborate the evidence of PW 2 but they also made out a different story and it was a complete departure from the prosecution case. PWs 7 and 8 are the son in-law and daughter of the deceased but they also deposed nothing about the occurrence. PW 11 Joynal Abedin a local witness he stated the incident of beating by accused Quiyum and Jalil upon the deceased. It is the definite case of prosecution that the deceased Nurjahan was raped to death then her dead body was thrown to the river Meghna. So if we believe the evidence of PW 11 for a moment then the prosecution case fails and if the prosecution case be sustained for sometime then the evidence of PW 11 should be left out of consideration. Therefore, we failed to discover any definite prosecution case against the condemned-prisoners.