(Criminal)
Nazmun Ara Sultana J
Md Anwarul Haque J
Hasan Foez Siddique J
Zahirul Islam @ Dipu (Md) ………….Appellant
vs
State ……………
………. Respondents*
Judgment
June 20th, 2013.
Evidence Act (1 of 1872)
Section 114(g)
It is undoubtedly the duty of the prosecution in a case involving capital sentence to place before the court all available witnesses irrespective of their evidence being favourable or unfavourable. Where a necessary witness mysteriously not cited as witness, the court may properly draw an inference adverse, to the prosecution. If a material witness has been deliberately keptback, then a serious reflection is cast on the validity of the conviction. A grave and heinous crime has been committed but there is no satisfactory proof of the guilt we have no option but to give the benefit of doubt to the accused. …… (19, 21 & 22)
Shamsul Haque vs State, 6 BLD (AD) 216 = 38 DLR (AD) 75 and Jaharlal Das vs State of Orissa, AIR 1991 (SC) 1388 ref.
Khandker Mahbub Hossain, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Appellants. (In all cases)
Momtaz Uddin Fakir, Additional AG instructed by Mahmuda Begum, Advocate-on-Record-For Respondents. (In all cases)
Judgment
Hasan Foez Siddique J: In these three Appeals being Criminal Appeal Nos. 11/2012, 12/2010 and 13/2010 by leave, the three appellants· have challenged the judgment and order dated 29-11-2007 passed by a Division Bench of the High Court Division in Criminal Appeal No. 3215 of 2004, 3346 of 2004 and 2910 of 2004 affirming the judgment and order of conviction dated 19-7-2004 passed by the Additional Metropolitan Sessions Judge, Fifth Court, Dhaka in Sessions Case No. 1215 of 2002 convicting the appellants under sections 302/34 of the Penal Code and sentencing each of them to suffer imprisonment for life and pay fine of Taka 10,000, in default, to suffer rigorous imprisonment for one year more.
2. The relevant facts, for disposal of these appeals, are that these three appellants along with others were put on trial in the Fifth Court of Additional Metropolitan Sessions Judge, Dhaka in Sessions Case No.1215 of 2002. They were charged under sections 302/34 of the Penal Code. At about 8-30 pm on 20-3-2002 one Sheikh Masud Pervez Mukti, son of PW I, Sheikh Borhan Uddin of 1830/Ga, Purba Badda, Police Station Badda, Dhaka was alleged to have been murdered by the appellants which gives rise to this case.
3. The prosecution case, as appears from the evidence of PW 1, is that his son, victim Mukti was called away by his friend acquitted accused Sharif at about 7-30 pm on 20-3-2000 from their house. Just after’ completion of “Esha” prayer his tenant tendered witness Jalil Miah went to his house and informed him that the victim Mukti had been killed by gun fire. Informant and his younger son PW 2 Manik rushed to the place of occurrence and found the body of his son Mukti lying on a road near the house of Abdus Sattar. Appellants Dipu, Kuddus, Newton and one Ratan and 3 others came out from the house of Sattar and threatened the PW 1 and his son Manik and thereafter left the place. The informant and others shifted the victim to Dhaka Medical College Hospital. The doctor, on duty, examined the victim and declared him dead. The PW I, thereafter, lodged the FIR (exhibit-I) with the Badda Police Station at about 11-55 pm on 20-3-2000.
4. PW 17 Md Zillur Rahman, ASI of Police, of Ramna’ Police Station prepared inquest report of the dead body of victim at Dhaka Medical College Hospital and, sent the same to the morgue for holding post mortem examination through constable Delowar Hossain, PW 14. PW 13 Dr Mizanur Rahman held post mortem examination of the dead body of the victim Mukti ‘and submitted report (exhibit-7). PW 16 S1 Mr Manirul Islam, PW 18 Saidur Rahman and PW 20 SI Mahbubur Rahman held investigation. PW 20 SI Mahbubur Rahman, completing the investigation, submitted charge sheet against 11 accused persons including the present appellants under sections 302/34 of the Penal Code. However, he submitted the final report in favour of FIR named accused Ratan who allegedly came out from the house of Sattar along with the convicts.
5. At the trial, the prosecution examined 20 withnesses. Out of them PW 1 informant Md Burhan Uddin, father of victim and PW 2 Manik, brother of the victim claimed that they saw accused appellants Zahirul Islam @ Dipu, Md Zhamshedul Imam @ Liton @ Newton, Quddus and Ratan to leave the house of Sattar. They threatened the PW 1 and PW 2. None of the witnesses claimed that they saw the actual act of killing the victim. PW 3 Mohamtnad Ullah and PW 8 Mr Nur Hossain accompanied PWs 1 and 2 but they did not say anything that they saw the accused persons who left the place of occurrence coming out from the house of Abdus Sattar. PW 4 Rawshan Ara is the mother of victim, she did not claim that she saw any accused to flee away. PW 5 Abu Miah went to the place of occurrence immediately after the occurrence and saw, the accused Babu and Emran to leave the place hurriedly. PW 6 Mizanur Rahman heard the names of the appellants. PW 7 is the witnesses of inquest and he went to the place of occurrence subsequently after the occurrence. He came to know about the names of the accused persons and after the occurrence PW 9 was tendered by the prosecution and defence did not cross examine him. PWs 10 and 11, who made statement under section 164 of the Code of Criminal Procedure before the Magistrate, were declared hostile. For PW 12 Kazi Meraz Hossain, Magistrate recorded the statements of the PWs 10 and 11 under section 164 of the Code of Criminal Procedure.-PWs 14, 15, 16, 17, 18 and 20 are the official and formal witnesses. PW 9 is the brother of victim who went to Cox’s Bazar on 20-3-2000 and returned on 21-3-2000.
6. Defence plea as it appears from cross-examination that the appellants had been falsely implicated in the case out of previous enmity.
7. The trial court, on consideration of the evidence on record, convicted the accused 1) Md Emran, 2) Shariful Islam, 3) Md Zahirul Islam Dipu, 4) Md Zamshed Imam @ Liton @ Newton and 5) Md Kuddus under sections 302/34 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for life and pay fine of Taka 10,000, in default, to suffer rigorous imprisonment for 1 (one) year. The trial court acquitted the accused Sukurjan, Abu Sayem, Satter, Manir and Simul. Convict Md. Emran preferred Criminal Appeal No.3001 of 2004, Md Shariful Islam @ Sharif preferred Criminal Appeal No. 2959 of 2004, Md Zahirul Islam @ Dipu preferred Criminal Appeal No.3215 of 2004, Md Zamshed Imam @ Liton @ Newton preferred Criminal Appeal No.3346 of 2004 and Md Kuddus preferred Criminal Appeal No. 2910 of 2004 in the High Court Division. A Division Bench of the High Court Division allowed the Criminal Appeal No. 3011 of 2004 and Criminal Appeal No. 2959 of 2004 thereby acquitted the convict Md Emran and Md Shariful Islam @ Sharif. The High Court Division dismissed the appeals preferred by the appellants namely Md Zahirul Islam @ Dipu, Md Zamshed Imam @ Liton @ Newton and Md Kuddus. They preferred these Appeals being Criminal Appeal Nos. 11-12 and 13 of 2010 respectively getting leave.
8. Leave was granted to consider the submissions of the learned Advocate for the appellants that whether the affirmation of conviction of the appellants on the basis of circumstantial evidence with regard to their presence in the place of occurrence, threatening the informant by appellant Dipu and altercation with them are adequate to support their conviction, whether mere threatening by appellant Dipu that if their names are disclosed they would kill the victim’s brother Manik (PW 2) is enough to sustain a charge of murder of the victim; whether the evidence of PW 1 and PW 2 that they saw the appellants along with others coming out from the house of the co-accused Sattar can be the basis of conviction when on the self same evidence co-accused Sattar was acquitted.
9. Mr Khandker Mahbub Hossain, learned Senior Advocate appearing for the appellants, submits that the order of conviction of the appellants on the basis of circumstantial evidence regarding their presence at the place of occurrence and threatening PW 1 and PW 2 by Jahirul Islam @ Dipu is bad in law. He submits that the evidence of the PW I, father of the victim and PW 2, brother of the victim, that they saw the appellants to come out from the house of Abdus Sattar and threatened them could not be the basis of conviction. He further submits that since the accused Ratan whose name had been mentioned in the FIR by the PW 1 in the similar manner those of the present appellants, got final report and the co-accused Sattar, Sharif and Emran who are almost on similar standings, got order of acquittal, the order of conviction of the appellants is not sustainable in the eye of law.
10. Mr Momtaz Uddin Fakir, the learned Additional Attorney-General appearing on behalf of the respondent,’ submits that the evidence of the PWs 1 and 2 that they went to the place of occurrence subsequently after the occurrence and saw these three appellants to come out from the house of accused Abdus Sattar and that they threatened the PW 2 to kill him if he crosses the limit, is a strong circumstance that nobody else but the appellants had killed the victim. He submits that the High Court Division rightly affirmed the order of conviction.
11. It is a case depending entirely on circumstantial evidence and the obvious contention of the defence is that the circumstantial evidence is wholly insufficient to bring home the guilt to the accused. At about 7-30 pm on 20-3-2000 when the victim Mukti was at his house accused Sharif (acquitted by the High Court Division) called him away from his house. Few minutes, thereafter, the witnesses heard the sound of firing. From the assessment of the evidence of PWs. 1,2 and 8 father, brother and brother-in-law of victim Mukti respectively, that PW 9, A Jalil, informed them that Mukti had been killed and then they rushed to the place of occurrence. That is, Jalil saw the dead body of the victim and then went to the house of informant which is situated about 300/350 yards far from the place of occurrence. PW 1 said in cross, Avgvi evmv nB‡Z Avgvi †Q‡j ¸wj LvBqv cwoqvwQj †mB ¯’vb Abygvb 300/350 MR `y‡i nB‡e|Ó and thereafter he said; Avgvi evox nB‡Z Abygvb 15/20 evox c‡i Avgvi †Q‡j‡K ¸wj LvBqv cwoqv _vK‡Z †`wL|Ó Jalil, seeing the dead body, went to the house of PW 1 and informed him then PWs 1,2 and 8 rushed to the place of occurrence. This PW 9 Jalil is the first man who saw the dead body and the persons present there and prevailing circumstances at the place of occurrence. But this important witness PW 9 was tendered by the prosecution. In the case of Shamsul Haque vs State reported in 6 BLD (AD) 216 = 38 DLR (AD) 75 this Division observed that a witness may be tendered by the prosecution if his evidence is not much important or his evidence will make unnecessary addition to the evidence already adduced by other witnesses. Sometimes a witness is tendered by the prosecution from motive, not examined lest something undesirable comes out from his lips. The best evidence, of which the case in its nature is susceptible, should always be presented.
12. In criminal cases the court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution case, the probabilities and normal course of human conduct of prudent persons are some of the factors which are always kept in mind while evaluating the merit of the case. The entire case of the prosecution rests on the circumstantial evidence as no prosecution witness has given any direct testimony against the appellants for the commission of the offence for which they have been convicted. The prosecution relied on PWs 1 and 2 who went to the place of occurrence few minutes after the occurrence and claimed to have identified the assailants when there was no electricity. PW 2 said; ¸wji kã †kvbvi 10/15 wgwbU ci Kv‡i›U Av‡m. Usually the killing party after killing the victim does not stay in the place of occurrence.
Section 114 of the Evidence Act enables court to presume only that which accords with the ordinary course of events and human nature and not what would be an aberration from such a course.
13. In the FIR, PW 1 stated; ZLb Avgvi †Q‡j gvwbK gyw³‡K bvovPvov Kivi mgq mvËv‡ii N‡ii wfZi nB‡Z 1) w`cy, wcZv †gvgZvR DwÏb, 2) wjUb, wcZv f~Tv 3) KzÏym, wcZv AvZz wgqv, 4) iZb, wcZv AÁvZ me© mvs-c~e© evÇv, XvKvMY 3/4 Ges AÁvZbvgv Rb hvnv‡`i bvg Rvwb bv Z‡e cybivq †`wL‡j wPwbe| Zvnviv evwni nBqv Av‡m Ges nvnv‡`i g‡a¨ nB‡Z w`cy Avgvi †Q‡j gvwbK‡K ûgwK `wqv e‡j ‡h, Zvnv‡`i bvg †Kv_vqI ewj‡j gvwbK‡K ¸wj K‡i nZ¨v Kwi‡e GB ûgwK w`qv c~e© w`‡K Kei¯’v‡b w`‡K Pvwjqv hvq|Ó
14. PW 1 in his evidence said: Avgvi †QvU †Q‡j gvwbK‡K I Avgv‡K Avmvgx QvËv‡ii evox nB‡Z `xcy, KzÏym, wjUb Ges iZb mn 3/4 Rb evwni nBqv Avgvi †Q‡j‡K ûgwK w`qv e‡j †ewk evovevwo Kwi‡j Zv‡KI ¸wj Kwiqv nZ¨v Kwi‡e|Ó
15. PW 2 Manik in his evidence said: AvbygvwbK 8-30 w`‡K Avgvi evoxi fvovwUqv Avt Rwjj Avwmqv Rvbvq †h, gyw³‡K ¸wj Kwiqv‡Q| GB K_v ïwbqv mK‡j evwni nB| hvIqvi mgq Avwg, Avgvi evev, fvB gÄyI hvB‡Z _vwK| iv¯Ívi mvÿx †gvnv¤§` Djøv‡K cvB| mK‡j wgwjqv fvB‡K †LuvRvLywR Kwi‡Z _vKvKv‡j Avmvgx QvËv‡ii evoxi Kv‡Q iv¯Ívi Dci Avgvi fvB‡K ¸wjwe× Ae¯’vq cwoqv _vwK‡Z †`wL| Avgiv Avgvi fvB‡K bovPov Kwiqv †`wL‡Z _vKvKv‡j H mgq mvËv‡ii evox nB‡Z `xcy, KzÏym, wjUb, iZb mn Av‡iv AÁvZbvgv K‡qKRb‡K evwni nBqv hvB‡Z †`wL| Avwg Zvnv‡`i †`wLqv Zvnv‡`i wcQz hvB‡Z _vwK‡j `xcy e‡j †h, Zzwg hw` Avgv‡`i wc‡Q Av‡m Zvn‡j †Zvgv‡KI ¸wj Kwie| Zviv GB K_v ewjqv Kei¯’v‡bi c~e© w`‡K bvwgqv hvq|Ó
16. Those PWs went to PO after hearing the gun fire and had seen the accused leaving the house of Sattar and thus they cannot strictly speaking said to be eyewitness. Those are the circumstantial evidence to connect the appellants with the occurrence.
In a murder case the court of law would be justified in demanding full satisfaction about the proof of offence before the legality of sections 302/34 can be used. Before recording conviction the court has to give specific finding not merely· that the accused “may” have killed the victim but in fact, that they must have killed the victim and the distance from “may” to “must” has to be traversed by reliable evidence. It is fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused. We have already mentioned that Ratan managed to get the final report and he had been discharged. A. Sattar got an order of acquittal.
Only question is whether the conviction of the appellants on the basis of aforesaid evidence of that the PWs 1 and 2 that they saw these appellants coming out from the house of acquitted accused Sattar and out of them appellant Dipu threatened the PW 2 sufficient to establish chaim of circumstances relying upon which it cannot be concluded beyond reasonable doubt that these three appellants had killed the victim Mukti and no one else. PWs 1 and 2 in their cross examinations said that they did not see the man who shot fire towards the victim and relevant time there was no electricity in the area. The PW 3 Mohammad Ullah went to the place of occurrence along with the PWs 1 and 2 and searched the victim. PW 3 in his examination in chief said: ÓmvËv‡ii evoxi c~e© DËi cv‡k¦© gyw³‡K †`wL‡Z cvB| jvk †`wLqv gvwbK‡K WvwKÓ|
(To be continued)
17. That is he saw the dead body of victim before PWs 1 and 2. Then he said, “gvwbK ZLb f‡q KvcwQj| H mgq QvËv‡ii evox nB‡Z 2/3 Rb‡K c~e© w`‡K †`ŠovBqv hvB‡Z †`wL| Avwg I gvwbK gyw³‡K †eex‡Z Kwiqv †gwW‡Kj wbqv hvB|” He saw 2/3 persons to run away from the house of Sattar but he did not disclose their identity. Even he did not claim that he had been able to identify the persons run away. In cross-examination he said: KzÏym‡K wPwb| KzÏym‡K Avwg H w`b †`wL bvB|Ó Quddus is the appellant of Criminal Appeal No. 13 of 2010. This independent witness did not support the testimonies of PWs 1 and 2. PW 5 Abu Miah went to the place of occurrence subsequently after the occurrence and fmmd the PWs 1 and 2. In his examination in chief he said: “†mLv‡b †cŠwQqv †`wL evey, Ggivb, Zvovûov Kwiqv †`Šwoqv hvB‡Z‡Q| Babu is not accused and Imran got acquittal from High Court Division. PW 6 rushed to the place of occurrence subsequently after the occurrence. He said in his evidence; Avwg †ei nBqv †`okZ/`yBkZ MR `y‡i QvËv‡ii evoxi DËi cv‡k¦© iv¯Ívi Dc‡i gyw³‡K ¸wjwe× Ae¯’vq kvwqZ †`wL| Zvi kix‡i †ek K‡qKwU ¸wj evwni nBqv wMqv‡Q| g~û‡Z© gyw³i AveŸv, gvwbK, gvjy, Avey, †gvnv¤§` Avjx I A‡b‡K PZzw`©‡K Av‡m| That is, he also went there before arrival of PWs 1 and 2. Thereafter, he said; c‡i †jvK gy‡L Rvwb‡Z cvwi Ggivb, w`cy, QvËvi, wjUb, bvwmi, KzÏym Giv GK‡RvU nBqv gyw³‡K nZ¨v Kwiqv‡Q| He did not claim that he saw the appellants to sun away from the house of Sattar. He said that he came to know the names of appellants and other persons afterwards from the people.
18. PW 7 Mahbub Hasan another independent witness went there and found the other witnesses there including PWs 1,2 and 3 but he also said nothing regarding departure of the appellants from the house of Sattar. PW 8 is the brother-in-law of the victim, this witness in his evidence said that his father-in-law PW 1 and brother-in-law PW 2 and he himself rushed to the place of occurrence together after receiving information from PW 9 Jalil. But this witness also did not say the fact of departure of the appellants coming out from the house of Sattar. In view of the testimonies of PWs 3, 5,6,7 and 8 the intrinsic reliability of the evidence of PW 1 and 2 that these appellants coming out from the house of Sattar threatened PW 2 and fled away has become shaky. No doubt the offence is a shocking one but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned. Suspicion however, so strong cannot be allowed to take the place of legal proof.
19. It is seen from the evidence of the prosecution witnesses .that a large number of disinterested witnesses were present near the place of occurrence. Naturally it should be so because the occurrence had taken place in the middle of . a street, a crowded locality. PW 1 in his crossexamination has said-NUbv¯’v‡ji iv¯Ívi `wÿ‡Y QvËv‡ii evoxi Dˇi wKmgZ †gvjøv mv‡n‡ei evox| Avkcvk evox Av‡Q| c~e© cv‡k¦© Pv‡qi †`vKvb| Sattar is an accused. None of the rests had been examined. Particularly the owner of the tea stall. It has been broadly laid down that it is undoubtedly the duty of the prosecution in a case involving capital sentence to place before the court all available witnesses irrespective of their evidence being favourable or unfavourable. Where a necessary witness mysteriously not cited as witness, the court may properly draw an inference adverse, to the prosecution. If a material witness has been deliberately kept back, then a serious reflection is cast on the validity of the conviction.
20. Since the entire case rests on circumstantial evidence it is necessary to refer to the principles which should guide the court in considering the conviction of an accused resting on circumstantial evidence. Circumstantial evidence means a combination of facts creating a net without there, being any tear through which the accused can escape. In the case of Jaharlal Das vs State of Orissa reported in AIR 1991 (SC) page 1388 Supreme Court of India has observed that; “The circumstantial evidence in order to sustain conviction must satisfy three conditions; (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances taken cumulatively should form a chain no complete that there is no escape from the conclusion that crime was committed by the accused and else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused”. When the evidence of PWs 1 and’ 2 are found to be unreliable in view of the evidence of PWs 3/ 5/ 7/ and 8 the order of conviction basing on circumstances from the evidence of PWs 1 and 2 is unsafe. The chain of circumstances is not complete so as it lead to the conclusion that the appellants and no other could have been the assailant. We do not find anything in the evidence that at or about the time of murder, no third person, excepting the appellants and the deceased were present at the place of occurrence. It can be a case of “may be true”. But there is distance between “may be true” and “must be true”. The same divides conjecture from sure conclusion.
21. In view of the evidence discussed about it is difficult for us to draw conclusion that within all human probability it was the accused appellants no one else, who had murdered the victim Mukti.
22. We are conscious that a grave and heinous crime has been committed but there is no satisfactory proof of the guilt we have no option but to give the benefit of doubt to the accused and we are constrained to ‘do so in this case,
23. Accordingly we find merit in these three appeals.
24. Accordingly, all the appeals being Criminal Appeal No. 11 of 2010/ 12 of 2010 and 13 of 2010 are allowed. The impugned judgment and order of the High Court Division in Criminal Appeal No. 3215 of 2004/ Criminal Appeal No.3346 of 2004 and Criminal Appeal No. 2910 of 2004 are set aside, Consequently, the judgment and order of Metropolitan Additional Sessions Judge, 5th Court, Dhaka dated 19-7-2004 passed in Metropolitan Sessions Case No. 1215 of 2002 arising out of GR Case No. 342 of 2000 corresponding to Badda PS Case No. 19 dated 20-3-2000 is set-a-side. The accused appellants are acquitted from the charge under sections 302/34 of the Penal Code. The respondent is directed to set them at liberty at once if they are not wanted in any other case.
