(From previous issue) :
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.
(Concluded)
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.
(Concluded)
