(Criminal Appellate Jurisdiction)
Jahangir Hossain J
Md Jahangir Hossain J
Judgment
January 11th, 2016
State……..Appellant
vs
Md Nazrul Islam
[absconding] ……..Accused Prisoner
Code of Criminal Procedure (V of 1898)
Section 154
FIR-FIR was lodged 6 [six] days after the occurrence. But it should be unworthy to forget that the victim’s condition was so deteriorating time and again after occurrence, for which all eyes look at the next consequence of the victim. The explanation given by the informant for delay in lodging the FIR is sustainable. …..(44)
Code of Criminal Procedure (V of 1898)
Section 509A
Statute itself contemplates that the report of post-mortem examination is required to be used as evidence, and the civil surgeon or other medical officer who made the report is dead or is incapable of giving evidence or is beyond the limits of Bangladesh and his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, such report may be used as evidence. …. (41)
Code of Criminal Procedure (V of 1898)
Section 509A
Requirements of section 509 A of the Code were complied with and Doctor’s attendance could not be procured because he was not available and, as such, the use of post-mortem examination report under section 509A of the Code as corroborative evidence is proper and justified by the trial court. ….(43)
Evidence Act (I of 1872)
Section 8
Absconding by itself is the conclusive proof of guilt of the accused but it lends weight to the circumstantial evidence against him. Although record shows that all due process of law was exhausted but he evaded trial going into hiding. Under such circumstances he cannot say now that he had no knowledge about the case. ……(47 & 48)
State vs Ful Mia, 5 BLC (AD) 41 ; Rakhal Chandra Naha vs State, 13 BLC (AD) 89 ; Ali Muhammad vs State, 22 DLR (WP) 155 ; State vs Montu alias Nazrul Haque, 44 DLR (AD) 287 ; Zakir Hossain vs State, 55 DLR 13 and Nawshar Ali Sarder vs State, 39 DLR (AD) 194 ref.
Zahirul Haque Zahir, DAG with Abdur Rokib [Montu], with Md Atiqul Haque [Salim], AAGs-For the State.
Md Fazlur Rahman, Advocate-For the State Defence.
Judgment
Jahangir Hossain J: The learned Sessions Judge, Kushtia has referred this matter, to the High Court Division for confirmation under. section 374 of the Code of Criminal Procedure [briefly CrPC] and subsequently it has been numbered as Death Reference No. 73 of 2010.
2. After conclusion of trial the, learned Sessions Indg found accused Md Nazrul Islam [absconding] guilty of the charge leveled under section 302 of the Penal Code and sentenced him to death with a fine of Taka 10,000 [ten thousand].
3. No appeal has been presented against the judgment and order of conviction and sentence passed by the learned Sessions Judge, Kushtia in Sessions Case No. 103 of 2008 arising out of Bheramara police station case No.6 dated 23-7-2006 corresponding to GR No. 66 of 2006. As the accused has been absconding since beginning of the case, the said Death Reference has been heard and is being disposed of alone by this judgment. .
4.The prosecution case as described in the Ejaher by the informant, father of the deceased, in brief, is that Md Nazrul Islam was Workings in the betel leaf field of the informant for about 9(nine) months on daily pay basis. Few days ago, a slight counter-talk was held between his son and Md Nazrul Islam, On 17-7-2006 at about 9-15 am accused Nazrul made an attack on his son with shar pkiris [hasuya] in a pre-plan manner when his son entered into the betel leaf field to supervise its work. Accused Nazrul inflicted kiris blows one after another on the body of the victim [Shaheen] at his different limbs. As a result, he sustained severe injuries in neck, right hand, right shoulder joint and abdomen and entrails of the victim came out because of severe abdomen injuries. Witnesses rushed to the spot on hearing hue and cry of the victim and. heard and saw the incident. They further saw accused Nazrul Islam having sharp kiris in hand running away from the spot. Victim was taken to Kushtia Sadar Hospital in a critical condition and then admitted to Dhaka Medical College Hospital for better treatment as his condition deteriorated. On 21-7-2006 around 7-15 pm he died in the hospital. After examining his dead body for autopsy, the same was taken to the village home and buried accordingly. Some delay has occurred because of attention given to his treatment after occurrence.
5. Upon receiving the Ejaher police started Bheramara police station case No.6, dated 27-7-2006 against the accused under section 302 of the Penal Code. The investigation officer visited the place of occurrence, prepared sketch map with index and recorded statements of witnesses after examining them under section 161 of the CrPC, collected inquest report and post-mortem examination report. Having concluded the investigation, he placed police report bearing charge sheet No.9 dated 12-1-2007 to the concerned court below against accused Md Nazrul Islam and three others under sections 302/34 of the Penal Code when prima facie case was found against them.
6. On 9-10-2008 the learned Sessions Judge framed charge against all four accused persons under sections 302/34 of the Penal Code which was read over and explained to them present to which they pleaded not guilty and claimed to be innocent in the trial and demanded justice. But it was not possible to. read and explain the framing charge to accused Md Nazrul Islam as he. was all a long absconding.
7. In order to prove this charge against the accused persons the prosecution examined as many as 11 (eleven) live witnesses in the case, while defence examined none. The defence case as it transpires from the trend of cross-examination of the prosecution witnesses that the accused are quite innocent and their further claim is that Panna Bahini or any other third’ party might have killed the victim on failure to give extortion money demanded by those parties. They have been falsely implicated in this case due to previous enmity over the land dispute between the accused persons and the informant party.
8. After recording evidence of the prosecution witnesses the accused persons on dock were examined under section 342 of the CrPC. This time they also reiterated of their innocence. Having considered the facts, circumstances and the evidence on record the learned Sessions Judge of Kushtia convicted and sentenced accused Md Nazrul Islam to death while acquitted three others by impugned judgment and order dated 30-11-2010. Accused Md Nazrul Islam preferred no Criminal Appeal as he has been absconding. As it appears from record .that to dispose of this Death Reference the State has appointed. an advocate named Mr Md Fazlur Rahman to defend the accused since death penalty has’ been imposed on him in the instant case.
9. Mr Zahirul. Haque Zahir learned Deputy Attorney General along with Mr Abdur Rokib [Montu], Assistant Attorney General, appeared on behalf of the Respondent [State] supporting the Death Reference. Mr Zahir has first placed before us the FIR, charge’ sheet, testimony of the witnesses, inquest report, post-mortem examination report others connected documents available in the paper books, then contends that,–
(a) The prosecution could establish its case against’ the accused beyond all reasonable doubt and, as such, there is nothing to say by the defence to interfere by’ this Court’ with the impugned judgment and order of conviction and sentence dated 30-11-2010 passed by the learned Sessions Judge, Kushtia.
(b) There is sufficient evidence against the accused to show that he was. ,a real perpetrator in the killing of the victim.
(c) Time, place and manner of the occurrence have been proved by the prosecution beyond all reasonable doubt and there is no single discrepancy in the evidence adduced
by the prosecution witnesses as to the time, place and manner of the occurrence.
10. He has further contended that act and conduct of the accused in the commission· of offence are so heinous, that does not. deserve any kind of sympathy from court upon him.
Mr Zahir has pointed out that although the doctor, who examined the dead body of the victim for autopsy, did not turn up to prove the post-mortem examination report but there are many decisions in line by our Apex Court that without providing the post-mortem examination report by the doctor, conviction can be based upon if the other evidence of the prosecution witnesses are found to be sufficient to prove the case, though the post-mortem examination report is a piece of corroborative evidence [State vs Fjul Mia, reported in 5 BLC (AD) 41 and Rakhal Chandra Naha vs State, reported in 13 BLC (AD) 891]. He further argues that PW 7, 8 and 9 who depicted about the killing story to the other witnesses immediately after the incident that might be used as admissible in evidence [Ali Muhammad vs State, reported in 22 DLR (WP) (1970) 1551].
11. Per contra, Mr Md Fazlur, Rahman, learned State Defence Advocate appearing on behalf. of the fugitive accused contends that the Prosecution utterly failed to prove the case against the accused beyond reasonable doubt. The inquest report of the victim does not support the prosecution case as’ stated by PW 1, the father of the victim. From the evidence of prosecution witnesses it has revealed that entrails of the victim came out due’ to sharp weapon blows by the accused but that claim does not support by the inquest report as well as post-mortem examination report. Mr. Rahman further contends that the trial court did not exhaust the due process of law laid down in the CrPC to bring the doctor for verifying the post-mortem examination report. Without examining the doctor to impose capital punishment is beyond the norms of criminal jurisprudence. Learned advocate further argues that in the alleged commission of offence there is no ocular witness to have seen the crime at the time of incident and it is pertinent to say that father of the victim did not bother to see or supervise the treatment of his son in Dhaka Medical College Hospital, while the victim was fighting with death which can-be presumed in mind that the father might have wanted to see his son dead for implicating the accused in the murder’ allegation overlooking the real perpetrators like Panna Bahini. He further argues that there has been neither pre-plan nor premeditation in the killing of the victim in this case the nature of crime as alleged by the prosecution is completely culpable homicide not amounting to murder. So the form of conviction depending on the view of murder charge is totally unethical and illegal in the eye of law. He finally submits that since there is no pre-plan or previous preparation for committing crime it may, at best can make into consideration in, awarding punishment under section 304 of the Penal Code subject to proving the allegation by prosecution evidence beyond reasonable doubt.
12. Upon scrutiny of the evidence adduced by the aforesaid 11 (eleven) live witnesses along with exhibits and material exhibits, it has emerged that the learned State defence lawyer has cross-examined the prosecution witnesses thoroughly to ascertain their veracity and credibility. Now the question is before us whether the prosecution has been able to prove the instant charge leveled against accused without any iota, of, doubt. Let us carefully examine and analysis the evidence adduced by the prosecution witnesses and the contentions of the learned Advocates of both the parties to arrive at a conclusive decision as per legislation for proper adjudication of justice.
13. It appears that PW 1 father of the victim, who lodged the FIR knowing from others has stated in his examination-in-chief that there was a conflict over the land, between him and the father of the accused. On 17-7-2008 at about 9-00 am his son was attacked by accused when both of them engaged themselves in the counter-talks in his betel leaf field. At one stage the accused, in order to kill, gave blows on the body of his son at different limbs with sharp kiris [hasuyal] one after another and subsequently entrails of his son came out while he was groaning.
14. On hearing and seeing such incident, Chamili Khatun, China Khatun, Apter and Budu Sarder rushed to the spot and saw the occurrence. When the witnesses came to the spot accused Nazrul quickly fled away. Some of the witnesses took the victim to the Kushtia Sadar Hospital. As his condition deteriorated he was taken to Dhaka Medical College Hospital for better treatment. on 21-7-2006 in the evening at 7-30 pm the victim succumbed to his injuries but before his departure he told that Nazrul made attack on him. The FIR has been marked as exhibit 1 and his signature as exhibit 1/1.
15. From this, evidence, it has revealed that there was a relationship between the informant party and the’ accused. Admittedly, they. had previous enmity over the event of land dispute.
16. This witness is a step-brother of Idris Ali, father.of the accused. It is also evident from this witness that accused Nazrul-worked on the daily pay basis – in the betel .leaf field of the informant. An altercation was held between’ Nazrul and the victim some few days, ago. Nazrul being enraged made attack on the victim with sharp weapon on the day of occurrence at 9-15 am. This witness though was not present at the time of occurrence but he heard soon after the occurrence from his daughter Chamili, China and two neighbors namely Apter and Budu Sarder, who rushed to the place of occurrence soon after hearing hue and cry of the victim. Here, the source of hearing of the incident has been stated in his evidence. So it cannot be brushed away that his evidence has no value being hearsay’ evideilce.
17. PW 2 Budu Sarder having corroborated the evidence of PW 1 narrated in his examination-in-chief that on 17-7-2006 at about 9-00 am he was working in the cultivated land. He reached the crime spot on hearing hue and cry and saw Nazrul havirig hasuya in hand was running away and the victim Shaheen lying on the ground and the entrails of the victim came out. On query victim Shaheen told. him that Nazrul, dealt a hasuya [sharp cutting weapon] blow In his abdomen and the victim was’ taken to hospital subsequently was :shifted to Dhaka Medical College in a critical condition. On 21-7-2006 he died in the hospital during undergoing treatment.
18. In course of cross-examination, this witness confirmed in reply that victim Shaheen informed him that Nazrul gave blows on his body with hasuya. It appears from his evidence that he was working in the cultivated land very near to the place of occurrence: Naturally, he had scope to see the occurrence ‘and accused fleeing away from his work-place in a little while: Therefore, his evidence’ has material particular to corroborate the evidence of PW 1 without major contradiction:
19. This witness has also confirmed in reply on the cross-examination that Shaheen told him that Nazrul gave blows on his body with kiris [hasuya]. It appears from cross-examination that the defence has totally failed to discard the evidence of this witness.
20. PW 3 Sekander Ali Biswas, a neighbour of the informant, who has stated in his deposition that on 17-7-2006 in the morning at 9-00 am he was in front of Bheramara police station. One Mukter informed him that the son of PW 1 was attacked and his entrails came out. He heard Nazrul beating the victim up. On hearing such information, he rushed to the house of PW 1 where victim’s sister in a weeping condition told him that Nazrul with hasuya gave blows on her brother Shaheen. The same statement narrated to him by PW 1 and his son Mizan PW 7 while Budu Sarder PW 2 was present there. Thereafter, he went to the betel leaf field where he saw bloodstained mud and destruction of betel leaf [boroj]. He has further testified that the victim Shaheen, was taken to Kushtia Medical Hospital then shifted to Dhaka Medical College wherein he died on 21-7-2006 and his dead body was buried after bringing from hospital.
21. In cross-examination, he replied that he rushed to the house around 11-00 pm. Although this witness did not see the occurrence and abruptly leaving the scene by’ accused Nazrul but he received the information of the incident from PWs 2 and 9 who had seen accused Nazrul having bloodstained weapon in hand feeling away just immediately after the incident. Therefore, it cannot be said that the evidence of this witness has no value at all.
(To be continued)
22. PW 4 Belal Hossain is also a neighbour of the informant, who has narrated that the occurrence took place on 17-7-2006 at about 9-00 am. He was going to see his land. All on a sudden, he heard hue and cry, from the betel leaf field of PW 1. Then and there he went to the spot and saw the victim Shaheen lying in the field with many injuries on his body including hand, shoulder and abdomen and entrails came out. He also saw accused Nazrul having bloodstained hasuya in hand running away. Having tied the abdomen with napkin [gamchha] the victim was sent to Kushtia Sadar Hospital in a Nosimon vehicle. On 21:7-2006 he died in the hospital.
23. In course of cross-examination he has replied that’ the victim was wearing a pant and a T-shirt but he could not remember the colour of the clothes. Around 8/10 persons went to the spot on hearing hue and cry. He has confirmed in reply that he narrated to the investigation officer’ that Nazrul was fleeing away with a blood stained kiris. This witness has also corroborated the evidence of former witnesses including PW I, the informant of the case. No discrepancy is appeared in his evidence with the evidence of other witnesses.
24. PW 5 Tozammel Haque states in his deposition that on 17-7-2006 in the morning at 9-15 am he went to the place of occurrence on hearing hue and cry and saw victim Shaheen with severe shoulder and hand injuries lying on the gr6und and his entrails came out. And he had seen mother and sister of the victim weeping nearby. They informed him that accused Nazrul dealt blows on the body of the victim with hasuya [Kiris]. Then they having tied the belly sent the victim to Kushtia Sadar Hospital in a Nosimun vehicle. He heard later that victim died at Dhaka’ Medical College Hospital.
25. In course of cross-examination, he has replied that he remained present at the place of occurrence for about half an hour and two policemen came while he was there. This witness corroborates the evidence of PW 4 without any contradiction. He has narrated the incident in the same tune as PW 4 narrated in his deposition.
26. PW 6 Mukbul Malitha has testified that the occurrence took place on 17-7-2006 at 9-15 am. He was then at home. He rushed, to the place of occurrence on hearing hue and cry and saw victim Shaheen, son of PW I, lying nearby at the betel leaf field with blood stained injuries and the entrails of the victim came out. He also saw wife of PW 1 and his two daughters namely China and Champa weeping and saying that Nazrul cut Shaheen with kiris and left the place instantly. Victim Shaheen also narrated that Nazrul cut him. Thereafter, having tied with napkin they sent him to Kushtia Sadar Hospital in a Nosimun vehicle. Subsequently, he was shifted to Dhaka Medical College Hospital wherein he died on 21-7-2006.
27. In course of cross-examination, this witness has responded that informant and the accused both are close to him. In reply he said Idris Miah, father of the accused, is his teacher. Around 22/30 people rushed to the spot and subsequently, many other persons came there. Daughters namely China and Champa of PW 1 were crying there and they told about Nazrul’s involvement in the attack of the victim. This witness echoed in the same tune as stated by PWs 4 and 5.
28. PW 7 Mizanur Rahman, son of PW 1 and full-brother of the victim, testifies that the occurrence took place on 17-7-2006 at 9-15 am. He was in the field at the relevant time. On hearing hue and cry he reached the spot and saw his brother lying on the ground with bloodstained injuries. Thereafter, they took him to Kushtia Sadar Hospital. They took him to Dhaka Medical College Hospital as his condition deteriorated. On the way to Dhaka victim Shaheen told him that Nazrul made attack on him with hasuya. The victim could not speak much because his was in a critical condition. On 21-7-2006 around 7-00 pm he succumbed to his injuries at Dhaka Medical College Hospital. On 22-7-2006 around 12-00 am one SI Nazrul Islam held the inquest report of victim Shaheen and took his signature in it. Inquest report is marked as exhibit-2 and his signature as exhibit-2/1 Dead body was examined in the morgue of Medical College and buried him after his dead body was taken to village home. On 23-7-2006 his father lodged an FIR with the police station.
29. On 24-7-2006 Daroga Rois Uddin rushed to the place of occurrence and prepared seizure list after being seized blood stained full plant and T-shirt of the victim and took his signature in it: The seizure list is marked as exhibit 3 and his signature as eXhibit-3f1 and the seizing apparels are marked as material exhibit-1 (one) series.
30. In course of cross-examination this witness has replied that regarding treatment and death of the victim were informed to his father and before lodging FIR they have narrated the incident to him. On perusal of the evidence of this witness it, appears that he was informed by victim that accused Nazrul made attack on him with hasuya and this witness all the time, during treatment of the victim, was with him. As he was ,with the victim all the time, he became the seizure list witness of the bloodstained apparels seized by. the investigating officer. It is further evident that the defence did not take denial that the apparels seized by the investigating officer were not belonging to the victim.
31. PW 8 Chamili Khatun, daughter’ of PW 1 and the sister of the deceased, narrates in her deposition that the occurrence took place on 17-7-2006 in the morning at 9-15 am. She was doing’ work in the pond nearby house at the relevant time. All on’ a sudden she heard hue and cry, then she went to the betel leaf field and saw Nazrul and Habib having hasuya and stick in hands coming out of the betel leaf field. The bloodstained hasuya was in the hand of Nazrul. She entered the betel leaf field and saw her brother Shaheen lying in. the field with severe injury and entrails came out of the belly and he was also groaning. On query her brother Shaheen told her that Nazrul gave him blows with hasuya. Locals came to the spot while they were shouting. They sent him to the hospital for treatment having tied the abdomen with a towel. As his condition. deteriorated was sent to Dhaka Medical College Hospital wherein he died on 21-7-2006. His father. being, informant filed the case.
32. In course of cross-examination, she has replied that her father was not at home at the time of occurrence. It has revealed from the cross-examination of this witness that while the victim was in Dhaka Medical College Hospital for treatment PW 1 made· communication with the attendant of the victim. As it appears from the evidence of this witness that defence has failed to discredit her evidence. Rather the evidence of this witness corroborates the evidence of PW 7 in a same way. No major contradiction we find in· the evidence of this witness.
33. PW 9 China Khatun states in her deposition that the occurrence took place on 17-7-2006 in the morning around 9-00 o’clock while she was standing on the bank of the pond. She went to the place of occurrence on hearing hue and cry. And saw accused Nazrul having blood stained hasuya in hand fleeing away and having heard the groaning she. entered the betel leaf field and saw her brother lying in the field and entrails came out of his belly. Her brother told her that Nazrul made attack and cut him. She then shouted in a weeping condition. Locals came there from around their house. PW 3 asked her how it happened then she replied that Nazrul did it. With the help of locals her brother was sent to Kushtia General Hospital. As his condition deteriorated he was shifted to Dhaka Medical College Hospital wherein he died four days after the incident.
34. In course of cross-examination this witness has replied that she rushed to the place of occurrence on hearing shouting and saw her brother lying on the ground with abdomen injury. From her evidence it has emerged that at the time of occurrence she was very near to the place of occurrence and that was why she could be able to see accused Nazrul running away with blood stained hasuya. This witness has also corroborated the evidence of PWs 7 and: 8 in a same manner.
35. PW 10 Rezaul Karim is a seizure list witness. In his presence a blood stained full’ pant and T-shirt along with a towel had been seized and he put his signature in the seizure list which has been marked as exhibit 3/2. This witness has recognized the seizing apparels in court. From defence no suggestion has been given that the blood stained wearing apparels were not belonging to the deceased of the case. Moreover, this witness has denied the defence suggestions that he’ has given false evidence against the accused because of relationship with the informant party.
36. PW 11 SI Rois Uddin Khan, the investigating officer of the case, ‘testifies that he was on duty at Veramara police station when the occurrence took place. The officer-in-charge of the said police station assigned him the case to investigate. During investigation he visited the place of occurrence, analyzed the FIR, prepared the sketch map with Index, seized the alamot and recorded statements of the witnesses after examining them and collected inquest. report along with post-mortem examination report.
37. Upon conclusion of investigation, he submitted police report being Charge Sheet No. 9 dated 12-1-2007 against the four accused persons including the convict-accused. The sketch map is marked as exhibit-4 and his signature as exhibit-4/1, index is marked as exhibit-5 and his signature as exhibit-5/1.
38. In course of cross-examination he replies that he took over the charge of investigation on 24-7-2006 and analyzed all connected documents including FIR. Deceased was injured on 17-7-2006 and died on 21-7-2006 at Dhaka Medical College Hospital. The case was lodged on 23-7-2006 at 21-35 hours and cause of delay in lodging Ejaher has been stated and he visited the place of occurrence on the same day. He has denied the defence suggestions that he did not investigate the case properly and being biased submitted’ charge sheet against the accused.
39. Upon assessment and evaluation of the aforesaid evidence of the witnesses it appears that the informant being informed by others instituted the case against the convict-accused and three others. He has given evidence supporting the FIR, story. PWs 2 to 6 are neighbours of the informant party and they have come forward to the court giving evidence in support of the prosecution case. The defence has not been able to discard or discredit their evidence in course of cross-examination. Rather they have confirmed the time, place and manner of the occurrence while replying the questions to the defence. Although the PWs 7, 8 and 9 are the nearest relations of the informant but their evidence corroborated each other as if they echoed their voice in a same tune. PWs 8 and 9 have categorically stated in their evidence that they rushed to the place of occurrence on hearing hue and cry and saw the victim in a critical condition and accused Nazrul running away with a blood stained hasuya in hand. It is evident that soon after the occurrence PWs 2, 4, 6, 8, and 9 rushed to the place of occurrence and saw accused Nazrul fleeing away with blood stained hasuya and the victim also told them on query that Nazrul made attack on him with sharp weapon like hasuya. The above versions of evidence could not be shaken by defence in any way. Therefore, it is very difficult to disbelieve the evidence of these witnesses as having. no contradictory events therein. Although they are not absolute eye witnesses to the occurrence but it is evidenced that they had witnessed partly of the occurrence. Even then, what victim narrated to them soon after the occurrence, is very much important for taking into consideration. In their evidence nothing has been found inconsistent in respect of departure of the accused from the scene with a blood stained hasuya, used in the attack of the victim. So such clear version of evidence is enough to be found the accused for his involvement in the attack of the victim.
40. The medical evidence i.e post-mortem examination report reveals 5 (five) severe injuries on the person of the victim-Shaheen which are as follows:
(1) Stitch wound in the turn and side of the neck 13″ long and extending to the left scapular 37 stitches over this.
(2) Stitch wound extending over the right scapular 3″ long 5 stitches.
(3) One stitch wound 1″ long 3 stitches over the right shoulder joint,
(4) Surgical stitch wound in the Medline of the front of the abdomen 8rt long 18 stitches over there.
(5) Stitch wound 2 long in the left side of the abdomen 8 stitches over there.”
41. Although doctor was not found to verify the post-mortem examination report but it has sufficient value being corroborative evidence when it is supported by other evidence. It appears from record that the trial court initially issued summons, then warrant of arrest and finally non-bail able warrant to the doctor, cited in the charge sheet even through IGP SP and the same was also communicated to the principal and director of Dhaka Medical College Hospital, which shows that all attempts have been exhausted in due course to produce the doctor but in vain. Post-mortem examination report of the dead body of the deceased even if not taken into consideration, does not weaken the prosecution case for lack of corroboration of ocular witnesses. Nevertheless, Statute itself contemplates that the report of post-mortem examination required to be used as evidence, and the civil surgeon or other medical officer who made the report is dead or is capable of giving evidence or is beyond the limits of Bangladesh and his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable such report may be used as evidence.
42. In the present case it appears that the trial judge made several attempts to bring the doctor before the court for which some delay occurred. Lastly he took final decision considering the medical examination report as corroborative evidence, which is absolutely justified in the eye of law. Even then, such postmortem examination report being corroborative evidence is not needed in this case as material evidence is available to prove the allegation brought by PW 1. It finds support from the case of State vs Ful Mia, reported 5 BLC (AD) 41 where it was held as under,
“The post mortem report was filed under Section 509A of the Code of Criminal Procedure as the Doctor was not available.
Section 509A CrPC contemplates certain procedure but those were not complied with amid for that the post-mortem report could be left out of consideration. As the factum of murder has been proved by four eye-witnesses the post-mortem report as corroborative evidence is not absolutely essential. ”
43. It has emerged in this case that requirements of Section 509A of the code of criminal procedure were complied with and Doctor’s attendance could not be procured because he was not available and, as such, the use of post-mortem examination report under Section 509A of the CrPC as corroborative evidence is proper and justified by the trial court.
44. Defence has tried to say that Panna Bahini or third party might have killed the victim for extortion money but it is not found in evidence during cross-examination by the defence that when and where at what time Panna Bahini or third party demanded subscription from the informant party. The further claim of the defence is that the FIR was lodged some days later which makes the prosecution case weaken. It is true that FIR was lodged 6 (six) days after the occurrence. But it should be worthy to forget. that the victim’s condition was so deteriorating time and again after occurrence, for which all eyes look at the next, consequence of the victim. Therefore, the explanation given by the informant for delay in lo
