Appellate Division (Criminal) Md Muzammel Hossain CJ SK Sinha J MA Wahhab Miah J Nazmun Ara Sultana J Md Imman Ali J State … Appellant Vs Kazi Mahbubuddin Ahmed . ….. Respondent* Judgment November 14th, 2012. Code of Criminal Procedure (V of 1898) Section 157 The factor of time mentioned in section 157 is very important to serve as a safeguard against fabrication of false evidence. The statement made at or about the time when the occurrence took place may be proved and used to corroborate the testimony of a witness and statements made long after the occurrence cannot be used as corroboration as it does not exclude the chance of false implication of the innocence person. If the statement was not made before the police officer at once or at least shortly after the event when a reasonable opportunity for making it presents itself, there is every possibility of fabrication of extraneous facts. The object of introducing this provision is that, the statement shall be made at a time, when the mind of the witness is still so connected with the events as to make it probable that his description of them then would be accurate. If, however, time for reflection passes between the event and making of the statement subsequently, it not only can be of very little value, but be actually dangerous, as such, statements can be easily brought into being. . ….. (16) Evidence Act (I of 1872) Section 24 The word voluntary used in respect of means a confession not caused by inducement, threat or promise. There can be no reason on the part or the informant to meet the accused in jail other than for a particular object. The prosecution has not explained the reason. This statement can at best be treated as retraction of the earlier confession but in no case can it be treated as a voluntary confession. . ….. (19) Acquittal In reversing an order of acquittal, the appellate court should be slow and circumspect to disturb a finding of fact but if it is of the opinion that the finding of fact is . wrong and not borne out by the evidence, there is no limitation on its power to interfere with the order of acquittal. An accused starts with a presumption of innocence when he is put up for trial and this presumption of acquittal should not be lightly interfered with by this Division “because, if two views of the matter are possible, a view favourable to the accused should be taken. The presumption of innocence has to be kept in mind especially when the accused has been acquitted by the appellate court after examination of the entire evidence. . ….. (21) Supreme Court of India in Gurucharan Singh vs State of Punjab, AIR 1956,SC 460 ; State of UP vs Sughar Singh, AIR 1978 SC 191; State of Uttar Pradesh vs Ram Kishun, AIR 1976 SC 2304 ref. Mahbubey Alam, Attorney-General, instructed by B Hossain, Advocate-on-Record-For the Appellant. Khandker Mahbub Hossain, Senior Advocate (with Yousuf Hossain Humayun, Senior Advocate, Fazlee-nor-Tapash, Advocate) instructed by Zahirul Islam, Advocate-on-Record-For the Respondent. Judgment SK Sinha J: This appeal at the instance of the state is against a judgment and order of acquittal passed by the High Court Division. Respondent Kazi Mahbubuddin Ahmed @ Mahbub was tried by the Metropolitan Additional Sessions Judge, Second Court, Dhaka to face charge under section 302 of the Penal Code for causing the death of his wife Nilufar Rashid on 2nd November, 1992 at around noon. According to the prosecution story, the victim and the respondent were leading conjugal life in an apartment at Uttar Bashabo. On the day of occurrence, in the morning the respondent went out of his home for business purposes leaving his wife and domestic help Belal at home and after completing his works he returned back at 1-30 PM when he found the house under lock and key. He opened the door with a duplicate key lying with him and found the dead body of his wife lying on the dinning space. Soon thereafter, he lodged an FIR with the local police station intimating the said fact. Eventually the police submitted a report recommending for prosecution of the respondent and Belal under sections 302/201 of the Penal Code. Prosecution examined 16 witnesses while the defence examined 7 witnesses. 2. The learned Metropolitan Additional Sessions Judge by judgment and order dated 27th September, 2003 found the respondent guilty under section 302 of the Penal Code and sentenced him to imprisonment for life with fine and Belal under section 201 of the Penal Code and sentenced him to 5(five) years rigorous imprisonment. He held that though Belal’s first confessional statement is inculpatory in nature, the same did not tally with the injuries found on the person of the victim; that in his second confessional statement Belal imputed blame or killing the victim upon the respondent which statement supported the medical evidence; that this second statement suggested that respondent is responsible for killing his wife and that the evidence adduced by the defence witnesses in support of the alibi plea are not reliable. The High Court Division by the impugned judgment found the respondent not guilty to the charge and acquitted him. 3. Leave was granted to consider whether the High Court Division was justified in acquitting the respondent in not properly sifting the evidence of the prosecution witnesses particularly the evidence of Younus Chowdhury (PW 9); that in view of the evidence that he was seen in the company of his wife till 1-20 PM, whether the High Court Division committed error of law in giving him the benefit of doubt; whether the apprehension of Belal by the police was a preplanned one; whether- in presence of multiple injuries on the person of the victim, it was probable on the part of a boy like Belal to kill the victim and finally, whether’ the High Court Division was justified in believing the defence version ignoring the trial court’s finding that the respondent being an educated person, introduced a concocted story in a planned way in order to get rid of the criminal charge. 4. There is no dispute that victim Nilufar Rashid died on 2nd October, 1992 at the respondent’s apartment and that the cause of death was homicidal in nature. The defence did not challenge the time place and the cause of death. It is also an admitted fad that the respondent had lodged an FIR with the local police suspecting accused Belal’s involvement in the murder and soon thereafter he was apprehended by the police and that he made a confessional statement on 3rd December, 1992 implicating him as the assailant of the victim. The learned Metropolitan Additional Sessions Judge disbelieved this confession mainly on the reasoning that the said statement did not tally with the injuries found on the person of the victim. Now the question is, whether, this is a legal ground to discard a confession which is apparently inculpatory in nature. 5. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference, that he committed the crime. (Phipson on Evidence, Ninth Edn). In criminal cases a confession made by an accused voluntarily is evidence against him of the facts stated. The ground of reception of voluntary confession is usually said to be the presumption that no person will make a statement against his interest unless it is true; at all events, such confession may reasonably be taken to be true as against himself. It is now settled that a confession duly made and satisfactorily proved is, in general, sufficient to warrant a conviction without corroboration. As in the case of a deposition, so in the case of a confession of an accused, the presumption mentioned in section 80 of the Evidence Act would arise if the confession has been recorded in accordance with law, that is to say, if it is recorded in accordance with section 164 read with section 364 of the Code of Criminal Procedure. The trial Court did not discard the first confession on the ground that it is not voluntary or that it is not inculpatory in nature. Accused Belal did not retract his confession till 12th August, 1994, on which date, he made another confessional statement. This latter statement cannot be taken as a confessional statement in the eye of law in presence of earlier statement and secondly, this statement is exculpatory in nature. Therefore, this statement cannot be taken as the basis for the conviction of the respondent. This second statement has no sanctity in the eye of law which will be evident from the discussions to be made later on. The learned Judge, therefore, erred in law in relying upon this statement only because this statement corroborates the injuries found on the person of the victim. 6. Under the prevailing system of the administration of criminal justice, the initial onus to prove the charge of death of a victim is upon the prosecution. As regards the initial burden, the views expressed by the High Court Division are partially correct. It held, “If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scale the evidence adduced by the procession in scales the evidence adduced by the prosecution in proving defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the court my entertain same reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi”. 7. Learned Attorney-General argued that the High Court Division fell in an error in failing to weigh the evidence of the prosecution witnesses which proved beyond doubt that the respondent was present at his apartment when the victim was killed and under such circumstances he couldn’t avoid the charge of murder of his wife. It was also contended that in view of medical evidence which proved that the victim sustained multiple injuries which caused her death, it was not possible on the part of a minor boy like Belal to cause her death and that the High Court Division totally ignoring this aspect gave the respondent the benefit of doubt. 8. There are exceptions to the general rule that the prosecution is required to prove the charge against the accused beyond shadow of doubt. In respect of a spouse killing case, where the victim was in the company of the husband or the wife, the spouse is under an obligation to account for the cause of death and a special onus lies upon him/her to prove the cause of death and in the absence of such explanation, the court may draw an adverse inference upon him/her. This is because of the fact that the spouse was presumed to be in the company of the victim unless it is proved otherwise secondly in such type of incident, it is difficult on the part of the prosecution to lead direct evidence, to prove the charge; and the inmates of the house who are near ones of the accused normally do not want to depose against the accused and try to suppress the real incident. There is a subtle but fundamental distinction between the degree of certainty required in cases where the burden of proving a fact is on the prosecution and a fact where the burden is on the accused. When the burden of fact is on the prosecution, the case must be proved beyond a reasonable doubt. When, however, the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt, or in default to incur a verdict of guilty, it is sufficient, if he, succeeds in proving, a prima facie case for, then the burden of such issue is shifted on the prosecution, which has still to, discharge its original onus that never shifts. 9. There is no doubt that the burden of proving the special defence of alibi is on the accused setting it up. But even so, it is held by the Supreme Court of India in Gurucharan Singh vs State of Punjab, AIR 1956 SC 460 that the burden of proving the case against the accused is on the prosecution, irrespective of whether or not the accused has made out a plausible defence. In a later case in State of UP vs Sughar Singh, AIR 1978 SC 191 it was held that “the burden on the accused is to make the plea of alibi reasonably probable” is upon him. 10. The burden of proof on the accused is not so onerous as it is on the prosecution, which must prove the offence beyond any reasonable doubt. If the accused proves that the probabilities of the case are greater on his side, the burden stands discharged. If the court is satisfied from the evidence, the examination of the accused and the evidence adduced by him, or from circumstances bringing the case within the exception or the plea taken by him has been proved, or upon a review of all the evidence, both the prosecution and the defence, if any, is left in reasonable doubt whether such circumstances do exist or not, the accused is entitled to get the benefit of doubt. 11. Mr Khandaker Mahbub Hossain, learned counsel appearing for the respondent argued that from the evidence of Suraiya Chowdhury. (PW 6), there is no doubt that Belal was in the habit of bringing outsiders into the house and in view of the evidence of Dr Pronab Kumar Chakrabarti (PW 12) that he found signs of sexual molestation on the chin, chest, shoulder and both thighs, it was apparent that the victim was molested by outsiders in connivance with Belal and then she was suffocated to death by strangulation. It is further contended that the trial court erred in law in believing Yunus Chowdhury (PW 9) as a reliable witness in failing to notice that he was examined by the police for the first time in 1995; that despite his belated examination, he made inconsistent statements with his earlier statements as evident from the evidence of Md Abdul Kaher Akanda (PW 16) and that apart from this witness, the prosecution has examined no other neighbouring witness. Learned counsel further argued that in view of belated examination of Anjuman Ara Rashid (PW 2), Khairun Nessa @ Rinu (PW 3), Rawsha Ara Mahmud (PW 4), Lutfun Nessa (PW 5) and Suraiya Chowdhury (PW 6) no reliance could be attached to their testimonies. Learned counsel further argued that the story introduced by the informant AlHaj HR Khan (PW 1) about the complicity of the respondent in the incident of murder is doubtful, inasmuch as, if the respondent had caused the death of his wife, it was against human conduct that he would intimate the police, the informant and his daughters about the death and send his driver to bring them to his home without making any attempt to cause disappearance of evidence of murder. I find force in the contention of the learned counsel. 12. In this case the respondent has taken a plea of alibi. The theory of an alibi is that the fact of presence elsewhere is essentially inconsistent with presence at the place and time alleged, and therefore, with personal participation in the act. (Wigmore, Law of Evidence, Section 136).’ It is stated in Wills, Circum-stantial, Evidence, 279-280, the credibility of an alibi is greatly strengthened, if it be set up at the moment when the accusation is first made, and be consistently maintained throughout the subsequent proceedings. On the other hand, it is a material circumstance to lessen the weight of this defence if it be not resorted to until sometime after the charge has been made. An alibi, not set up at the earliest stage, is, in most cases, unconvincing, in proving the plea of alibi, the accused need not be required to prove the exact time and every moment of time involved in order to sustain his defence. It is sufficient for him to raise a reasonable doubt of his presence at the scene of occurrence at the time that it was committed. But, it must cover the time when the offence is shown to have been committed, so as to preclude the possibility of the accused’s presence at the place of the crime at the relevant time. Law does not expect the same standard of proof from the accused as from the prosecution. 13. Now keeping in view the statement of law as discussed above, let us consider whether the High Court Division is justified in relying upon the plea of alibi. The High Court Division has thoroughly considered and discussed the evidence of witnesses and disbelieved the prosecution case as regards the respondent’s complicity in the murder of victim Nilufar Rashid holding that PWs 1, 2, 3, 4, 5, 6 and 10 who are the near ones of the victim failed to substantiate that the respondent was in the company of his wife at the time of alleged occurrence and that PW 9 also failed to say anything in this regard. As regards the defence plea the High Court Division was of the view that “they (DWs) were quite independent and disinterested witnesses and their evidences were confidence inspiring and command credibility. They had no reason to offer colluder versions and false statements did their testimonies got ring of truth. It emerged from evidence of PW 16 that the crime took place in between 11 a.m….-1 pm plea of alibi adopted by convict appellant appeared to have been well established by evidence of DWs 3, 4, 5, 6 and 7. In the face, of credible, trust worthy clinching evidence coming from the mouth of DWs 3, 4, 5, 6 and 7 leading support to the defence case of alibi, learned trial Judge was not at all justified jettisoning their evidence. 14. Therefore, it is found that the High Court Division assessed the evidence of DWs and believed the defence plea relying upon the evidence of Md Moazzem Hossain (DW 3), Md Awlad Hossain (DW 4), Md Yunus Ali (DW 5), Syed Azharul Islam (DW 6) and Ahmed Hossain (DW 7) on the reasoning that they are neutral witnesses and that there was no reason on their part to make untrue statements. The evidence of these witnesses are considered along with the admitted fact that immediately after the occurrence, the respondent lodged an FIR suspecting co accused Belal as the assailant of his wife, a reasonable doubt was created about the presence of the respondent at the scene of occurrence. Before lodging the FIR, he intimated the fact of the death to his in-laws. He then sent his vehicle to bring them and then he performed all acts necessary for the purpose of detecting the real assailant normally a prudent man does, as soon as he had learnt that his wife was assassinated, that is to say, he intimated the police, arranged for holding inquest and postmortem report examination and then brought the dead body at his residence and then buried the dead body in the graveyard in presence of his in-laws. None took any exception from the conduct of the respondent. His mather-in-law (PW 2) and sister-in-law (PW 6) and other relations stayed in his home for 2/3 days after the death and during this period, none harboured any suspicion against him. Over and above, coaccused Belal was apprehended soon after the occurrence and he made a confessional statement on the following day. This confessional statement, as observed above, is inculpatory in nature. 15. Long after one and half years of the occurrence, PW 1 made the complaint with the Chief Metropolitan Magistrate on 23rd June, 1994 introducing a totally different story. And one year thereafter, the investigating officer examined the vital witnesses in February, 2005: The prosecution did not give any explanation about this delay in examining the witnesses Section 157 of the Evidence Act provides that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. This section requires that the authority component to investigate the fact should have examined the witnesses at or about the time when the information relating to the incident was intimated to the police. Though the investigating officer investigated into the matter immediately after the occurrence, he did not examine most of the witnesses and the witnesses who were examined did not say anything against the respondent. His duty is to examine the witnesses who are supposed to be acquainted with the facts and circumstances of the case immediately after receipt of the information of the death news. Naturally, he did not feel it necessary to examine PWs 1-6, 8,9 and 10 as they were not acquainted with the facts of the case. Therefore, their disclosure implicating the respondent after long delay creates doubt about the genuineness of their claim. This examination without delay is a condition which serves as a safeguard against fabrication and false case. If the statement made before an authority legally competent to investigate the fact, it would be exposing the maker to the consequences of perjury and if the statement was not made before such authority, it would be inadmissible unless it was made so shortly after the fact took place that the court considers it not to have been made for the purpose of creating evidence.