High Court Division :
(Criminal Appellate Jurisdiction)
Jahangir Hossain J
Md Jahangir Hossain J
State………..Petitioner
vs
Md Abul Kashem Kha…………….Condemned-Prisoner
Judgment
January 20th, 2016
Constitution of Bangladesh, 1972
Article 35(2)
Code of Criminal Procedure (V of 1898)
Section 403
No person shall be prosecuted and punished for the same offence more than once and according to Section 403 of the Code it would also be a principle of double jeopardy if a person is convicted or acquitted for the same offence more than once.
Victim brought an allegation earlier against the condemned prisoner for his illegal demand of dowry under torture and humiliation. Such allegation brought by the victim made the condemned prisoner ferocious and infuriated. Ultimately it turned into an attack on the victim by the condemned prisoner after being enraged. So the second incident took place not for dowry. If it is considered at this moment that the victim subsequently died after being tortured by the condemned prisoner for not meeting the dowry then it would be double standard practice in the criminal dispensation of justice because for demanding dowry, the condemned prisoner has already been punished on trial by this time. . ….. (52)
Penal Code (XLV of 1860)
Section 302
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Sections 11(Ka)
Since the cause of death for dowry has not been proved under Section l1(ka), the conviction from the offence of Section l1(ka) of the Ain, is altered to one of Section 302 of the Penal Code and he is sentenced to imprisonment for life with a fine. . ….. (54)
State vs Sadqul Islam 63 DLR (AD) 134; Sabur Alam vs State, 51 DLR 16; Golam Murtuza vs State, 9 BLC (AD) 229 ; State vs Md Shafiqul Islam, 43 DLR (AD) 92 and Abdur Razzak vs Slale, 28 DLR (AD) 35 ref.
Zahirul Haque Zahir, DAG with Abdur Rokib (Montu) with Md Atiqul Haque (Selim), AAGs-For the State.
Md Bodizznman Tafader with Das Tapan Klimar, Advocates-For the Condemned Prisoner.
Judgment
Jahangir Hossain J : Learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira has referred this matter to the High Court Division for confirmation under Section 374 of the Code of Criminal Procedure [hereinafter referred to as CrPC] and subsequently it has been numbered as Death Reference No. 31 of 2010. After conclusion of trial the learned judge found accused Md Abul Kashem Kha guilty of the charge leveled under Section 11 (ka) of the Nari-o-Shishu Nirja tan Daman Ain, 2000 as amended in 2003 and sentenced him to death with a fine of Taka 5000.
2. Condemned prisoner Md Abul Kashem Kha thereafter preferred Criminal Appeal No. 3404 of 2010 before this court and also filed Jail Appeal being No. 158 of 2010. As the matter has been arisen out of the judgment and order passed by the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira in Nari-o-Shishu case No. 16 of 2005 arising out of GR case No. 324 of 2004 [Tala] corresponding lo Tala Police Station case No. 14 dated 27-9-2004, the Death Reference No. 31 of 2010 along with Criminal Appeal No. 3404 of 2010 and Jail Appeal No. 158 of 2010 have been heard together and are also being disposed of by this single judgment.
3. The prosecution case as narrated in the FIR, in brief, is that [one] Md Shahidul Islam, brother of the victim, being informant lodged an FIR on 27-9-2004 with Tala Police Station against 7 [seven] persons including the condemned prisoner alleging, inter-alia, that his sister Ms Shahanara Khatun got married to Md Abul Kashem Kha on 9-9-1991 with an amount of Taka 20,000 as dowry. During their conjugal life she gave birth to a son named Masum Billah now aged about 10 [ten] years. After wards, her husband gave pressure on her to meet him with Taka 20,000 more as dowry and forced her to leave his house after beating her up.
4. Subsequently, his sister brought an allegation before the Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira on 16-9-2003 by filing an application numbered as Nari-o-Shishu case No. 41 of 2004.
During pending of the said case her husband took her back to his house upon an amicable settlement but he started threatening her continuously as to why she lodged a case against him. On 26-9-2004 around 11-00 am having reached the house of the accused persons the informant saw them running away from the house and he also found his sister lying at the courtyard in a critical condition with severe bleeding injury on her head. On query, he came to know that the accused persons including her husband dealt blows with sharp weapons [dao] on the body of the victim, in particular on forehead for refusal to pay dowry money amounting to Taka 20,000.
He the with the help of locals took her sister to Satkhira Sadar Hospital for treatment and thereafter she was referred to Khulna Medical College Hospital as her condition was seen so severe and critical. She was in an unconscious condition and cold die at any time.
5. Upon. receiving the ejaher police registered Tala Police Station case No. 14 dated 27-9-2004 under Sections 11(ka)(kha)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 [as amended in 2003]. Thereafter, police launched investigating the alleged crime. During investigation of the case, the victim was shifted to Dhaka Medical College Hospital after six days’ treatment in Khulna Medical College Hospital, as her condition was deteriorated. She had undergone treatment in Dhaka Medical College Hospital for about two months and 4/5 days.
6. The investigating 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.. He had discussion with doctors of Khulna Medical College Hospital and collected medical certificates but failed to record the statement of the victim and discuss with her as she became unable to have sense of conversation.
He had found injuries on the body of the victim at different limbs and her scalp of the head was operated by doctor. After conclusion of investigation he submitted chargesheet being No. 207 dated 22-12-2004 against the accused persons including the condemned prisoner under Sections 1l(ka)(kha)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000.
7. Having no hope of recovery she was taken to the house of the informant where she succumbed to her on 3-2-2005 while undergoing treatment. The informant again lodged a complaint with the same police station stating the reasons of his sister’s death. On which a UD case No.4 of 2005 dated 4-2-2005 was registered. Previous investigating officer took over the charge of the said UD case to investigate the reason of her subsequent death.
8. Thereafter, he visited the house of the informant, prepared inquest report of the deceased, seized the alamat including medical documents and the pictures of the injured victim and sent the dead body to the Sadar Hospital for an autopsy and subsequently he collected the same and again examined the witnesses including some new others.
After conclusion of investigation, he submitted supplementary chargesheet being No. 207 [ka] dated 3-4-2005 against all the accused persons under Sections 11(ka)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 while he submitted final report in the UD case No. 04 dated 4-22005.
9. On 29-5-2005 the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal took cognizance against them under Sections 11(ka)(kha)/30 of the Ain and on 28-3-2007 they were indicted by the same Tribunal under Sections 1l(ka)/30 of the Ain which was read over and explained to the accused persons present to which they pleaded not guilty and claimed to be innocent in the trial and demanded to get justice.
10. In the event of proving the charge leveled against the accused persons, the prosecution examined as many as 8 [eight] 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 persons are quite innocent and they did not hit the victim.
Accused Abul Kashem Kha did not give blow on tl1e head of the victim. No occurrence took place in the house of accused Abul Kashem and they were not present at the time of occurrence. They further claimed that the victim died having received injuries inflicted by unknown persons and the informant falsely implicated the accused persons in the case.
11. Upon closure of the evidence of the prosecution witnesses, the accused on dock were examined under Section 342 of the CrPC. This time they also reiterated about their innocence. Having considered the facts and circumstances and the evidence on record the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira found accused Md Abul Kashem Kha guilty of the charge and sentenced him to death while acquitted six others.
12. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence dated 20-5-2010 passed by the learned Judge of Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira, condemned prisoner MJ Abul Kashem being appellant presented Criminal Appeal No. 3404 of 2010 and also filed Jail Appeal No.158 of 2010.
13. Mr Md Zahiml Haque Zahir, learned Deputy Attorney-General along with Mr Abdur Rokib [Montu] and Mr Md Atiqul Haque [Selim], Assistant Attorney-Generals appeared on behalf of the respondent [State] supporting the Death Reference and opposing the Criminal Appeal as well as Jail Appeal. They have first placed before us the FIR, charge sheets, testimony of the witnesses, medical documents including post mortem report, inquest report, impugned judgment and other connected papers available in the paper book, then Mr Zahir contends that;
[a] The prosecution could establish its case against the condemned prisoner beyond all reasonable doubt and, as such, there is nothing to show by the defence to interfere by this Court with the impugned judgment and order of conviction and sentence dated 20-52010 passed by the learned Judge of Nari-o-Shishu Nirjalan Daman Tribunal.
[b] There is sufficient evidence against the condemned prisoner to show that he was a real perpetrator in the subsequent death of the victim.
[c] Time, place and manner of the occurrence have been proven by the prosecution evidence beyond reasonable doubt and there is no single discrepancy or contradiction in the evidence of the prosecution witnesses as to time, place and manner of the occurrence.
14. Mr Zahir further contends that the act and conduct of the condemned prisoner in the commission of offence are so heinous and cruel that does not deserve any kind of sympathy from the court upon him. In support or his contentions he has cited some decisions namely 43 DLR (AD) 92 [in respect of wife killing], 6 BLC (AD) 53 and 9 BLC (AD) 229 [in respect of Sections 8 and 106 of evidence Act], 28 DLR (AD) 35 [regarding Section 342 of the CrPC], and 63 DLR (AD) 106 [about Section 114 (G) of the evidence Act].
15. On the contrary, Mr Md Badiuzzaman Tafader along with Mr Das Tapan Kumar, learned Advocates submits that the prosecution utterly failed to prove the case against the condemned prisoner beyond reasonable doubt and the demand of dowry as alleged by the prosecution has not been proven by evidence as to when and where the condemned prisoner demanded money as dowry. More so, for alleged demand of dowry the victim lodged a case earlier against him in which the condemned prisoner was found guilty and sentenced him to suffer three years rigorous imprisonment with a fine of Taka 5,000.
16. Mr Zaman argues that informant has no scope to come back from the FIR story. If the informant narrates anything more beyond his FIR story, the same happens to be treated as an embellishment and afterthought. In the FIR it is stated that he did not see the condemned prisoner inflicting on the person of the victim but in his deposition he has disclosed that he saw the occurrence on his own eyes.
17. He further submits that as per evidence adduced by the prosecution witnesses there was no pre-plan or premeditation and no heavy weapon or article used in the alleged attack on the victim. So it is not a case of pre-planned murder.
Moreover, the victim died more than four months after the occurrence. In support of his contentions, he has referred to some decisions namely 18 BLC 718, 18 BLD 492, 43 DLR (AD) 223, 41 DLR (AD) 01, 1985 BLD (AD) 176, and 7 BLC 54.
18. He contends that as per Section 106 of the evidence Act if the defence fails to prove its case, the onus of proof by the prosecution does not go away. Though the duty of the husband is to show or explain how his wife sustained injuries in his vicinity but at the same time prosecution must prove that the husband was present at the relevant time and within his custody the wife was killed or attacked [State vs Sadqul Islam 63 DLR (AD) 134 and Sabur Alam vs State, 51 DLR 16].
19. In the present case although the condemned prisoner did not give any evidence in support of his defence but it cannot be said that for his non-explanation conviction can be based on him. In the absence of any proof beyond reasonable doubt by the evidence of prosecution witnesses, the burden of proof should not be shifted to the condemned prisoner [21 BLT (AD) 161]. He finally prays for rejection of the Death Referene and allowing the Criminal Appeal as well as Jail Appeal after setting aside the impugned judgment and order of conviction and sentence dated 20-5-2010.
(To be continued)
20. Upon scrutiny of the evidence adduced by the prosecution witnesses along with exhibits as well as material exhibits it has emerged that the learned defence lawyer has cross-examined the 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 the condemned prisoner beyond all reasonable doubt. Let us carefully examine and analyze the evidence adduced by the prosecution witnesses to come to a conclusion in the proper adjudication of justice.
21. In proving the case in hand there are 8 live witnesses examined by the prosecution. As informant of the case PW 1 has described that his sister Shahanara Khatun got married to condemned prisoner in the year 1991 and in their conjugal life they have a 13-year old son named Masum Billah. Condemned prisoner demanded Taka 20,000 as dowry to his sister who failed to meet the claim as demanded by him.
22. Subsequently, his sister left her husband’s house and lodged a case being Nari-o-Shishu case No. 41 of 2004 against her husband, condemned prisoner while staying in his [informant] house. But the condemned prisoner took his sister back to his house upon a compromise. On 26-9-2004 at 11-00 am he went to his brother-in-law’s [condemned prisoner] house in order to meet his sister where he could see that all accused persons severely beat his sister, particularly accused Kashem struck a bamboo stick blow on the head of his sister and he raised alarm to save his sister who also started shouting. Surrounding neighbours rushed to 1he spot of the crime soon after the incident, With the help of others he took his sister to Satkhira Sadar Hospital in a microbus. Thereafter, she was shifted to Khulna Medical College Hospital as her condition deteriorated and she took treatment therein for six days. She was again referred to Dhaka Medical College Hospital wherein she was given treatment for around two months and 4/5 days. Having no hope of recovery she was taken to the house of the informant in consultation with the doctors concerned. Around two months later, she succumbed to her injuries in the house of the informant. He has further stated that his sister’s scalp split with the brain coming out on being inflicted by accused Abul Kashem and the victim died due to sustaining injuries inflicted by accused Abul Kashem.
23. Having inflicted they killed his sister for demand of dowry. He has identified the accused on dock and the FIR, marked as exhibit-I, his signature as exhibit-1/1. He has also recognised his signature put on the seizure list of blood stained saree and blouse of his sister seized by police which is marked as exhibit-2 and his signature as exhibit-2/1. He took coloured pictures of the injured place and health condition of the victim. Bone of scalp is seized and the medical documents were also submitted.
24. PW 2 Abul Hossain, has testified that the occurrence took place on 26-9-2010 at 11-00 am. Local men telling each other that accused Kashem killed his wife for demanding Taka 20,000 as dowry. Upon hearing such fact he rushed to the house of Abul Kashem where he saw victim lying at the courtyard with blood injury, her brain with the head got out having split inflicting on her head by bamboo stick. He saw the victim once. He with the help of others, sent the victim to Satkhira Hospital at first in a vehicle. Subsequently, she was shifted to Khulna Hospital, then Dhaka and the doctors of Dhaka Medical College Hospital sent back the victim to the house of the informant around two months later. She succumbed to her injuries around 4 months after the incident in the house of the informant. Though the victim could not speak but she was given proper treatment while she was staying in the house of the informant. Informant took her photographs when she was undergone treatment. He is a seizure list witness of the blood stained apparels of the victim seized by police. Seizure list is marked as exhibit-4 and his signature as exhibit-4/1. Police had also seized bone of split scalp and medical documents of the victim.
25. PW 3 Miajan Morol has testified that sister of the informant got married to condemned prisoner who struck on the head of the victim for demanding dowry. The occurrence took place on 26-9-2004 at about 11.30 am. He saw the informant and the victim in a microbus while he was going to Modanpur village home. He could see the victim in an injured condition. Informant narrated to him that his brother-in-law Abul Kashem inflicted on the head of his sister for dowry. He went to the hospital with them. Doctors sent the victim from Dhaka Medical College Hospital to the house after giving two months’ treatment. While she was undergone treatment she died in the house of the informant about two months’ later.
26. PW 4 Akram Ali has stated in his deposition that the occurrence took place on 26-9-2004 at about 11-00 am in the house of the accused. He rushed to the spot on hearing hue and cry while he was going to purchase cattle. Informant Shidul had gone there before he reached. He cold see victim Shahanara lying in the courtyard with head injury. He heard that victim received inflicted by accused for dowry. They did not see the accused in the house as they left before their coming.
27. PW 5 Mokshed has testified that the occurrence took place on 26-9-2010 at 11-00 am in the house of the accused. They went to the spot on hearing hue and cry while he along with his brother Akram was going beside the house of the accused to purchase cattle. He saw the victim Shahanara lying in an injured condition. Informant told him that victim sustained injuries inflicted by the accused due to demanding dowry. They took the victim to Satkhira, then Khulna for treatment. They did not see the accused in the house when they came to the place of occurrence.
28. PW 6 Kismot Ali has been tendered by the prosecution nd defence has declined to cross-examine him.
29. PW 7 51 Shafiqur Rahman testifies that after having being endorsed he investigated the case. He has recognised FIR and the signature of the recording officer, marked as exhibit-5 and his signature as exhibit-5/1. He visited the place of occurrence and held sketch map with index, marked as exhibit-06 and his signature as exhibit-6/1 and recorded statements of witnesses after examining them. He has recognised blood stained Saree as material exhibit-I, blouse as material exhibit-II, coloured photos as material exhibit-III, bone of the victim as material exhibit-IV, medical documents of the victims containing 16 pages as material exhibit-V series as submitted by the informant on 8-12-2012 to him. He prepared seizure list, marked as exhibit-04 and his signature as exhibit-04/02.
30. He states further that the victim lost her memory and even then, she could not speak till her eyes are being closed forever. For that reason he failed to record her statement regarding the incident. Inquest report was held by him on 4-2-2005 at the residence of the informant, marked as exhibit-8 and his signature as exhibit-8/1. He finally submitted investigation report against the condemned prisoner and 6 others under Sections 11(ka)(kha)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000.
31. PW 8 Dr Abul Hossain, deposes that on 5-2-2005 at 2-00 pm he examined the dead body of the victim identified by one constable Md Afaz Uddin. He found the following injuries on the body of the victim,
“[1] One old incised wound size about 3″ x 2″ x ½” depth cutting of skin, pericranium bone was right side of partial region of head.
[II] One old incised wound 1 ½” x 1/2″ x1/2″ depth over right parietal region of head below the injury No.1.
On dissection: Congestion of soft tissue found corresponding to injuries mentioned above. Brain matter liquefied blackish colour. Congested tissues resisted on washing with water.
Opinion: Death was due to cardia respiratory failure as a result of shock and hemorrhage due to consequence injuries described which was ante-mortem and homicidal in nature.”
32. This post mortem examination report is marked as exhibit-7 and his signature as exhibit-7/1. In cross-examination he has replied that the age of injuries has not been mentioned in the post mortem examination report and both the injuries are to be infected.
33. It reveals from the cross-examination of the of the witnesses that the defence has failed to discredit the evidence of witnesses and also failed to make contradictions among its evidence. Rather most of the events have been made confronted by putting questions to them.
Some of the questions put to them [witnesses] as if they are invited to confirm the prosecution case. Except some denials or suggestions like falsely implication in the case or innocence of the occurrence of the condemned prisoner, defence has not been able to show any of its case. However, weakness of the defence should not be taken into consideration for inference in the fair administration of justice. It would be fair and just if justice is done on the basis of proper evaluation of evidence adduced by the prosecution witnesses and material particulars.
34. Having gone through the evidence of the prosecution witnesses it appears that PW 1 is the full brother of the victim, who went to the house of condemned prisoner to meet his sister [victim] on the day of occurrence at 11-00 am. It finds further from FIR, marked as exhibit-l that having reached the house of the condemned prisoner he saw the accused persons including condemned prisoner running away and found his sister lying at the courtyard with severe blood injury on 26-9-2004 around 11-00 am. On hearing hue and cry neighbours came to the spot and he took his sister to the hospital with the help of them. Subsequently victim succumbed to her injuries in his residence around 04 [four] months after the incident. Although this witness does not state in the FIR that he saw the condemned prisoner inflicting on the person of the victim on his own eyes but his deposition claims that he saw directly the conduct of the condemned prisoner in the beating of the victim. Except this version of evidence other evidence corroborates the FIR story. About seeing the condemned prisoner at the relevant time may be an excessive measure taken by this witness, the information of the case, but that does not hamper the prosecution case in any way. It has been corroborated by both his deposition and FIR story that when this witness reached the house of the occurrence, he could see the accused persons along with condemned prisoner leaving the house in a shameful manner.
35. PW 2 is a local man who has no relation with the victim or the informant in any way. He evidence on record reveals that the time, place and manner of the occurrence are exactly similar to the version of PW 1. Immediately after the occurrence he rushed to the scene, the house of the condemned prisoner, where he saw the victim lying at the courtyard in a critical condition with grievous head injury. He heard from PW 1 about the cause of injuries inflicted by condemned prisoner for demanding dowry. The evidence of pw-03 shows that the occurrence took place at about 11-00 am on 26-9-2004 in the house of the condemned prisoner. He saw the victim in a critical condition in a microbus by which he also went to the hospital. This evidence finds support from the evidence of PWs 1 and 2 as to the injury on the person of the victim inflicted by the condemned prisoner. There is definite indication of injuries on the victim which this witness saw on his own eyes immediately after the occurrence and he went to the hospital with them to help as her condition was so worsen and critical. He also heard from PW 1 the cause of attack on the victim was for dowry.
36. PWs 4 and 5, both are full brothers, rushed to the scene immediately after the incident. They also saw the victim lying at the courtyard of condemned prisoner with a severe head injury. This portion of evidence corroborates the evidence of PW 2 who is an independent witness in the instant case. Even then, a piece of evidence is not found inconsistent in their entire evidence. Both the PWs further disclosed that they heard from PW 1 the cause of injury was for dowry. Although PWs 4 and 5 are the relatives of PW 1 but their evidence show that they are credible witnesses in this case. Because their credibility as witnesses are not turned down in any way by the defense during cross-examination. They have narrated exact scenario as to the crime corroborating the evidence of PWs I, 2 and 3.
The evidence of aforesaid 5 live wih1esses regarding injuries of the victim also supported by the evidence of PW 8, the doctor of the post mortem examination report who narrated the cause of death of the victim in the following manner,
“One old incised wound size about 3″ x 2″ x ½” depth cutting of skin, pericranium bone of right side of parietal region of head and one old incised wound 1-1/2 x ½” x ¼” depth over right partial region of head below the injury No.1.”
37. And the Doctor opined that death was due to cardia respiratory failure as a result of shock and hemorrhage due to consequence injuries described which was mortem mortem and homicidal in nature.
38. The injuries of the victim as stated by PWs 1 to 5 have been supported by the post mortem examination report in which two injuries are mentioned on the head of the victim and below the injury No. 01. So, there is no doubt about the injuries inflicted on the victim in the house of the condemned prisoner at the relevant time. has also been supporteu by material exhibits-l to V namely blood stained Saree and blouse, colored photos, bone of head and medical documents of the victim.
39. In respect of these material exhibits no suggestion has been given by the defence that these materials are not belonged to the victim of the case and subsequent death of the victim was not occurred due to the above two injuries inflicted by the condemned prisoner as deposed by the prosecution witnesses. It is not found in evidence that the defence put any suggestion to the witnesses that the victim died due to other reasons or negligence of doctors.
40. It appears from the impugned judgment of the trial court that the victim earlier filed a case against the condemned prisoner on an allegation that he assaulted her for demand of dowry at Taka 20,000 and sent her to her father’s house for meeting his demand. Subsequently the victim was taken back to the house of the condemned prisoner following an amicable settlement. But he made remarks thereafter saying that he would show the music for lodging the case against him so that such initiative does not arise further in future. It has been narrated in the ejaher, exhibit-l that,
”??? ???? ??????? ??? ?????? ???? ????? ????? ???? ??? ??, ???? ??? ???? ??? ?????? ?? ??? ??? ???? ?? ????? ??????, ????¯’? ???? ????………………….
??. ??????’ ?????????? ??? ????? ?? ??? ??????? ???? and subsequent threat it has meant that the condemned prisoner had gathered some grievances in his mind to take action against his wife as to why she made allegation against him by filing a criminal case. So, from this version of evidence it is clearly found probe that the condemned prisoner made himself prepared from before to take revenge on the person of the victim and subsequently he did it on the day of occurrence within his custody. Moreover, the injury inflicted on the head of the victim is so severe that became enough to cause the death. So, the intention of killing is clearly found present in the act and conduct of the condemned prisoner. Therefore, we do not find any cogent ground on this point to consider in the argument of the learned Advocate for the defence.
42. Having considered the above ground and attending circumstances of the case, it appears that the condemned prisoner made attack intentionally on the person of the victim to take his revenge liquidating her forever.
43. Now we are to see whether the marital relationship was subsisting between the victim and the condemned prisoner at the relevant time. It appears from evidence on record that admittedly the victim of the case came under attack at the courtyard of the condemned prisoner and no one denied during cross-examination of the witnesses that both of them had no marital relationship’ as husband and wife at the relevant time rather it has come into evidence that they have a 13 year old son named Masum Billah. Even there is no denial given by the defence that the victim did not receive the injuries within the periphery of condemned prisoner and the defence does not feel to take a plea of alibi that he was not present in his house at the time of commission of crime. And, as such” responsibility goes to the condemned prisoner to explain how his wife sustained severe injuries at the courtyard of his house. There is no explanation as to the cause of injuries on the person of the victim shown by the condemned prisoner neither in course of cross-examination of the prosecution witnesses nor at the time of examination under Section 342 of the CrPC. So he cannot escape his sacred responsibility as per Section 106 of the Evidence Act. Defence simply said in its suggestion that victim was attacked by unknown person but why, it was not suggested by defence. The reason must be there to be explained by the condemned prisoner as husband. The attack as allegedly made by unknown persons in the house of the condemned prisoner is seemed to be a vague term used by the defence in the given suggestion. It does not carry any legal value to consider in favour of the defence.
44. In the absence of any other proof as to the injuries of the wife by her husband i.e. if the husband failed to explain the cause of injuries inflicted on the person of the victim in his periphery, which proves that it was none but the husband to be liable. It finds support from the case of Golam Murtuza vs State, reported in 9 BLC (AD) 229 where their Lordships opined that, “In the absence of any other proof of commission of murder of the wife in other way and in the absence of explanation coming from the side of the husband of the wife for the murder of his wife in his custody and it being proved by evidence that the condemned prisoner demanded dowry some days before murder of his wife and before murder of his wife and the report of post- mortem containing several injuries on the person of Bilkis Banu proving her death and fact of abscondence from the house on the day of occurrence of murder and the petitioner murdered his wife for dowry as has been rightly found by the high court division.”
45. To make the husband liable the minimum fact that must be fetched on record either by direct or circumstantial evidence that the husband was in the house at the relevant time and the victim was within his custody. In the present case in hand we find evidence given by the prosecution witnesses particularly PW 1 and 3-5 who found the victim lying at the courtyard of condemned prisoner with severe head in
(Criminal Appellate Jurisdiction)
Jahangir Hossain J
Md Jahangir Hossain J
State………..Petitioner
vs
Md Abul Kashem Kha…………….Condemned-Prisoner
Judgment
January 20th, 2016
Constitution of Bangladesh, 1972
Article 35(2)
Code of Criminal Procedure (V of 1898)
Section 403
No person shall be prosecuted and punished for the same offence more than once and according to Section 403 of the Code it would also be a principle of double jeopardy if a person is convicted or acquitted for the same offence more than once.
Victim brought an allegation earlier against the condemned prisoner for his illegal demand of dowry under torture and humiliation. Such allegation brought by the victim made the condemned prisoner ferocious and infuriated. Ultimately it turned into an attack on the victim by the condemned prisoner after being enraged. So the second incident took place not for dowry. If it is considered at this moment that the victim subsequently died after being tortured by the condemned prisoner for not meeting the dowry then it would be double standard practice in the criminal dispensation of justice because for demanding dowry, the condemned prisoner has already been punished on trial by this time. . ….. (52)
Penal Code (XLV of 1860)
Section 302
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Sections 11(Ka)
Since the cause of death for dowry has not been proved under Section l1(ka), the conviction from the offence of Section l1(ka) of the Ain, is altered to one of Section 302 of the Penal Code and he is sentenced to imprisonment for life with a fine. . ….. (54)
State vs Sadqul Islam 63 DLR (AD) 134; Sabur Alam vs State, 51 DLR 16; Golam Murtuza vs State, 9 BLC (AD) 229 ; State vs Md Shafiqul Islam, 43 DLR (AD) 92 and Abdur Razzak vs Slale, 28 DLR (AD) 35 ref.
Zahirul Haque Zahir, DAG with Abdur Rokib (Montu) with Md Atiqul Haque (Selim), AAGs-For the State.
Md Bodizznman Tafader with Das Tapan Klimar, Advocates-For the Condemned Prisoner.
Judgment
Jahangir Hossain J : Learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira has referred this matter to the High Court Division for confirmation under Section 374 of the Code of Criminal Procedure [hereinafter referred to as CrPC] and subsequently it has been numbered as Death Reference No. 31 of 2010. After conclusion of trial the learned judge found accused Md Abul Kashem Kha guilty of the charge leveled under Section 11 (ka) of the Nari-o-Shishu Nirja tan Daman Ain, 2000 as amended in 2003 and sentenced him to death with a fine of Taka 5000.
2. Condemned prisoner Md Abul Kashem Kha thereafter preferred Criminal Appeal No. 3404 of 2010 before this court and also filed Jail Appeal being No. 158 of 2010. As the matter has been arisen out of the judgment and order passed by the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira in Nari-o-Shishu case No. 16 of 2005 arising out of GR case No. 324 of 2004 [Tala] corresponding lo Tala Police Station case No. 14 dated 27-9-2004, the Death Reference No. 31 of 2010 along with Criminal Appeal No. 3404 of 2010 and Jail Appeal No. 158 of 2010 have been heard together and are also being disposed of by this single judgment.
3. The prosecution case as narrated in the FIR, in brief, is that [one] Md Shahidul Islam, brother of the victim, being informant lodged an FIR on 27-9-2004 with Tala Police Station against 7 [seven] persons including the condemned prisoner alleging, inter-alia, that his sister Ms Shahanara Khatun got married to Md Abul Kashem Kha on 9-9-1991 with an amount of Taka 20,000 as dowry. During their conjugal life she gave birth to a son named Masum Billah now aged about 10 [ten] years. After wards, her husband gave pressure on her to meet him with Taka 20,000 more as dowry and forced her to leave his house after beating her up.
4. Subsequently, his sister brought an allegation before the Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira on 16-9-2003 by filing an application numbered as Nari-o-Shishu case No. 41 of 2004.
During pending of the said case her husband took her back to his house upon an amicable settlement but he started threatening her continuously as to why she lodged a case against him. On 26-9-2004 around 11-00 am having reached the house of the accused persons the informant saw them running away from the house and he also found his sister lying at the courtyard in a critical condition with severe bleeding injury on her head. On query, he came to know that the accused persons including her husband dealt blows with sharp weapons [dao] on the body of the victim, in particular on forehead for refusal to pay dowry money amounting to Taka 20,000.
He the with the help of locals took her sister to Satkhira Sadar Hospital for treatment and thereafter she was referred to Khulna Medical College Hospital as her condition was seen so severe and critical. She was in an unconscious condition and cold die at any time.
5. Upon. receiving the ejaher police registered Tala Police Station case No. 14 dated 27-9-2004 under Sections 11(ka)(kha)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 [as amended in 2003]. Thereafter, police launched investigating the alleged crime. During investigation of the case, the victim was shifted to Dhaka Medical College Hospital after six days’ treatment in Khulna Medical College Hospital, as her condition was deteriorated. She had undergone treatment in Dhaka Medical College Hospital for about two months and 4/5 days.
6. The investigating 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.. He had discussion with doctors of Khulna Medical College Hospital and collected medical certificates but failed to record the statement of the victim and discuss with her as she became unable to have sense of conversation.
He had found injuries on the body of the victim at different limbs and her scalp of the head was operated by doctor. After conclusion of investigation he submitted chargesheet being No. 207 dated 22-12-2004 against the accused persons including the condemned prisoner under Sections 1l(ka)(kha)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000.
7. Having no hope of recovery she was taken to the house of the informant where she succumbed to her on 3-2-2005 while undergoing treatment. The informant again lodged a complaint with the same police station stating the reasons of his sister’s death. On which a UD case No.4 of 2005 dated 4-2-2005 was registered. Previous investigating officer took over the charge of the said UD case to investigate the reason of her subsequent death.
8. Thereafter, he visited the house of the informant, prepared inquest report of the deceased, seized the alamat including medical documents and the pictures of the injured victim and sent the dead body to the Sadar Hospital for an autopsy and subsequently he collected the same and again examined the witnesses including some new others.
After conclusion of investigation, he submitted supplementary chargesheet being No. 207 [ka] dated 3-4-2005 against all the accused persons under Sections 11(ka)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 while he submitted final report in the UD case No. 04 dated 4-22005.
9. On 29-5-2005 the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal took cognizance against them under Sections 11(ka)(kha)/30 of the Ain and on 28-3-2007 they were indicted by the same Tribunal under Sections 1l(ka)/30 of the Ain which was read over and explained to the accused persons present to which they pleaded not guilty and claimed to be innocent in the trial and demanded to get justice.
10. In the event of proving the charge leveled against the accused persons, the prosecution examined as many as 8 [eight] 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 persons are quite innocent and they did not hit the victim.
Accused Abul Kashem Kha did not give blow on tl1e head of the victim. No occurrence took place in the house of accused Abul Kashem and they were not present at the time of occurrence. They further claimed that the victim died having received injuries inflicted by unknown persons and the informant falsely implicated the accused persons in the case.
11. Upon closure of the evidence of the prosecution witnesses, the accused on dock were examined under Section 342 of the CrPC. This time they also reiterated about their innocence. Having considered the facts and circumstances and the evidence on record the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira found accused Md Abul Kashem Kha guilty of the charge and sentenced him to death while acquitted six others.
12. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence dated 20-5-2010 passed by the learned Judge of Nari-o-Shishu Nirjatan Daman Tribunal, Satkhira, condemned prisoner MJ Abul Kashem being appellant presented Criminal Appeal No. 3404 of 2010 and also filed Jail Appeal No.158 of 2010.
13. Mr Md Zahiml Haque Zahir, learned Deputy Attorney-General along with Mr Abdur Rokib [Montu] and Mr Md Atiqul Haque [Selim], Assistant Attorney-Generals appeared on behalf of the respondent [State] supporting the Death Reference and opposing the Criminal Appeal as well as Jail Appeal. They have first placed before us the FIR, charge sheets, testimony of the witnesses, medical documents including post mortem report, inquest report, impugned judgment and other connected papers available in the paper book, then Mr Zahir contends that;
[a] The prosecution could establish its case against the condemned prisoner beyond all reasonable doubt and, as such, there is nothing to show by the defence to interfere by this Court with the impugned judgment and order of conviction and sentence dated 20-52010 passed by the learned Judge of Nari-o-Shishu Nirjalan Daman Tribunal.
[b] There is sufficient evidence against the condemned prisoner to show that he was a real perpetrator in the subsequent death of the victim.
[c] Time, place and manner of the occurrence have been proven by the prosecution evidence beyond reasonable doubt and there is no single discrepancy or contradiction in the evidence of the prosecution witnesses as to time, place and manner of the occurrence.
14. Mr Zahir further contends that the act and conduct of the condemned prisoner in the commission of offence are so heinous and cruel that does not deserve any kind of sympathy from the court upon him. In support or his contentions he has cited some decisions namely 43 DLR (AD) 92 [in respect of wife killing], 6 BLC (AD) 53 and 9 BLC (AD) 229 [in respect of Sections 8 and 106 of evidence Act], 28 DLR (AD) 35 [regarding Section 342 of the CrPC], and 63 DLR (AD) 106 [about Section 114 (G) of the evidence Act].
15. On the contrary, Mr Md Badiuzzaman Tafader along with Mr Das Tapan Kumar, learned Advocates submits that the prosecution utterly failed to prove the case against the condemned prisoner beyond reasonable doubt and the demand of dowry as alleged by the prosecution has not been proven by evidence as to when and where the condemned prisoner demanded money as dowry. More so, for alleged demand of dowry the victim lodged a case earlier against him in which the condemned prisoner was found guilty and sentenced him to suffer three years rigorous imprisonment with a fine of Taka 5,000.
16. Mr Zaman argues that informant has no scope to come back from the FIR story. If the informant narrates anything more beyond his FIR story, the same happens to be treated as an embellishment and afterthought. In the FIR it is stated that he did not see the condemned prisoner inflicting on the person of the victim but in his deposition he has disclosed that he saw the occurrence on his own eyes.
17. He further submits that as per evidence adduced by the prosecution witnesses there was no pre-plan or premeditation and no heavy weapon or article used in the alleged attack on the victim. So it is not a case of pre-planned murder.
Moreover, the victim died more than four months after the occurrence. In support of his contentions, he has referred to some decisions namely 18 BLC 718, 18 BLD 492, 43 DLR (AD) 223, 41 DLR (AD) 01, 1985 BLD (AD) 176, and 7 BLC 54.
18. He contends that as per Section 106 of the evidence Act if the defence fails to prove its case, the onus of proof by the prosecution does not go away. Though the duty of the husband is to show or explain how his wife sustained injuries in his vicinity but at the same time prosecution must prove that the husband was present at the relevant time and within his custody the wife was killed or attacked [State vs Sadqul Islam 63 DLR (AD) 134 and Sabur Alam vs State, 51 DLR 16].
19. In the present case although the condemned prisoner did not give any evidence in support of his defence but it cannot be said that for his non-explanation conviction can be based on him. In the absence of any proof beyond reasonable doubt by the evidence of prosecution witnesses, the burden of proof should not be shifted to the condemned prisoner [21 BLT (AD) 161]. He finally prays for rejection of the Death Referene and allowing the Criminal Appeal as well as Jail Appeal after setting aside the impugned judgment and order of conviction and sentence dated 20-5-2010.
(To be continued)
20. Upon scrutiny of the evidence adduced by the prosecution witnesses along with exhibits as well as material exhibits it has emerged that the learned defence lawyer has cross-examined the 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 the condemned prisoner beyond all reasonable doubt. Let us carefully examine and analyze the evidence adduced by the prosecution witnesses to come to a conclusion in the proper adjudication of justice.
21. In proving the case in hand there are 8 live witnesses examined by the prosecution. As informant of the case PW 1 has described that his sister Shahanara Khatun got married to condemned prisoner in the year 1991 and in their conjugal life they have a 13-year old son named Masum Billah. Condemned prisoner demanded Taka 20,000 as dowry to his sister who failed to meet the claim as demanded by him.
22. Subsequently, his sister left her husband’s house and lodged a case being Nari-o-Shishu case No. 41 of 2004 against her husband, condemned prisoner while staying in his [informant] house. But the condemned prisoner took his sister back to his house upon a compromise. On 26-9-2004 at 11-00 am he went to his brother-in-law’s [condemned prisoner] house in order to meet his sister where he could see that all accused persons severely beat his sister, particularly accused Kashem struck a bamboo stick blow on the head of his sister and he raised alarm to save his sister who also started shouting. Surrounding neighbours rushed to 1he spot of the crime soon after the incident, With the help of others he took his sister to Satkhira Sadar Hospital in a microbus. Thereafter, she was shifted to Khulna Medical College Hospital as her condition deteriorated and she took treatment therein for six days. She was again referred to Dhaka Medical College Hospital wherein she was given treatment for around two months and 4/5 days. Having no hope of recovery she was taken to the house of the informant in consultation with the doctors concerned. Around two months later, she succumbed to her injuries in the house of the informant. He has further stated that his sister’s scalp split with the brain coming out on being inflicted by accused Abul Kashem and the victim died due to sustaining injuries inflicted by accused Abul Kashem.
23. Having inflicted they killed his sister for demand of dowry. He has identified the accused on dock and the FIR, marked as exhibit-I, his signature as exhibit-1/1. He has also recognised his signature put on the seizure list of blood stained saree and blouse of his sister seized by police which is marked as exhibit-2 and his signature as exhibit-2/1. He took coloured pictures of the injured place and health condition of the victim. Bone of scalp is seized and the medical documents were also submitted.
24. PW 2 Abul Hossain, has testified that the occurrence took place on 26-9-2010 at 11-00 am. Local men telling each other that accused Kashem killed his wife for demanding Taka 20,000 as dowry. Upon hearing such fact he rushed to the house of Abul Kashem where he saw victim lying at the courtyard with blood injury, her brain with the head got out having split inflicting on her head by bamboo stick. He saw the victim once. He with the help of others, sent the victim to Satkhira Hospital at first in a vehicle. Subsequently, she was shifted to Khulna Hospital, then Dhaka and the doctors of Dhaka Medical College Hospital sent back the victim to the house of the informant around two months later. She succumbed to her injuries around 4 months after the incident in the house of the informant. Though the victim could not speak but she was given proper treatment while she was staying in the house of the informant. Informant took her photographs when she was undergone treatment. He is a seizure list witness of the blood stained apparels of the victim seized by police. Seizure list is marked as exhibit-4 and his signature as exhibit-4/1. Police had also seized bone of split scalp and medical documents of the victim.
25. PW 3 Miajan Morol has testified that sister of the informant got married to condemned prisoner who struck on the head of the victim for demanding dowry. The occurrence took place on 26-9-2004 at about 11.30 am. He saw the informant and the victim in a microbus while he was going to Modanpur village home. He could see the victim in an injured condition. Informant narrated to him that his brother-in-law Abul Kashem inflicted on the head of his sister for dowry. He went to the hospital with them. Doctors sent the victim from Dhaka Medical College Hospital to the house after giving two months’ treatment. While she was undergone treatment she died in the house of the informant about two months’ later.
26. PW 4 Akram Ali has stated in his deposition that the occurrence took place on 26-9-2004 at about 11-00 am in the house of the accused. He rushed to the spot on hearing hue and cry while he was going to purchase cattle. Informant Shidul had gone there before he reached. He cold see victim Shahanara lying in the courtyard with head injury. He heard that victim received inflicted by accused for dowry. They did not see the accused in the house as they left before their coming.
27. PW 5 Mokshed has testified that the occurrence took place on 26-9-2010 at 11-00 am in the house of the accused. They went to the spot on hearing hue and cry while he along with his brother Akram was going beside the house of the accused to purchase cattle. He saw the victim Shahanara lying in an injured condition. Informant told him that victim sustained injuries inflicted by the accused due to demanding dowry. They took the victim to Satkhira, then Khulna for treatment. They did not see the accused in the house when they came to the place of occurrence.
28. PW 6 Kismot Ali has been tendered by the prosecution nd defence has declined to cross-examine him.
29. PW 7 51 Shafiqur Rahman testifies that after having being endorsed he investigated the case. He has recognised FIR and the signature of the recording officer, marked as exhibit-5 and his signature as exhibit-5/1. He visited the place of occurrence and held sketch map with index, marked as exhibit-06 and his signature as exhibit-6/1 and recorded statements of witnesses after examining them. He has recognised blood stained Saree as material exhibit-I, blouse as material exhibit-II, coloured photos as material exhibit-III, bone of the victim as material exhibit-IV, medical documents of the victims containing 16 pages as material exhibit-V series as submitted by the informant on 8-12-2012 to him. He prepared seizure list, marked as exhibit-04 and his signature as exhibit-04/02.
30. He states further that the victim lost her memory and even then, she could not speak till her eyes are being closed forever. For that reason he failed to record her statement regarding the incident. Inquest report was held by him on 4-2-2005 at the residence of the informant, marked as exhibit-8 and his signature as exhibit-8/1. He finally submitted investigation report against the condemned prisoner and 6 others under Sections 11(ka)(kha)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000.
31. PW 8 Dr Abul Hossain, deposes that on 5-2-2005 at 2-00 pm he examined the dead body of the victim identified by one constable Md Afaz Uddin. He found the following injuries on the body of the victim,
“[1] One old incised wound size about 3″ x 2″ x ½” depth cutting of skin, pericranium bone was right side of partial region of head.
[II] One old incised wound 1 ½” x 1/2″ x1/2″ depth over right parietal region of head below the injury No.1.
On dissection: Congestion of soft tissue found corresponding to injuries mentioned above. Brain matter liquefied blackish colour. Congested tissues resisted on washing with water.
Opinion: Death was due to cardia respiratory failure as a result of shock and hemorrhage due to consequence injuries described which was ante-mortem and homicidal in nature.”
32. This post mortem examination report is marked as exhibit-7 and his signature as exhibit-7/1. In cross-examination he has replied that the age of injuries has not been mentioned in the post mortem examination report and both the injuries are to be infected.
33. It reveals from the cross-examination of the of the witnesses that the defence has failed to discredit the evidence of witnesses and also failed to make contradictions among its evidence. Rather most of the events have been made confronted by putting questions to them.
Some of the questions put to them [witnesses] as if they are invited to confirm the prosecution case. Except some denials or suggestions like falsely implication in the case or innocence of the occurrence of the condemned prisoner, defence has not been able to show any of its case. However, weakness of the defence should not be taken into consideration for inference in the fair administration of justice. It would be fair and just if justice is done on the basis of proper evaluation of evidence adduced by the prosecution witnesses and material particulars.
34. Having gone through the evidence of the prosecution witnesses it appears that PW 1 is the full brother of the victim, who went to the house of condemned prisoner to meet his sister [victim] on the day of occurrence at 11-00 am. It finds further from FIR, marked as exhibit-l that having reached the house of the condemned prisoner he saw the accused persons including condemned prisoner running away and found his sister lying at the courtyard with severe blood injury on 26-9-2004 around 11-00 am. On hearing hue and cry neighbours came to the spot and he took his sister to the hospital with the help of them. Subsequently victim succumbed to her injuries in his residence around 04 [four] months after the incident. Although this witness does not state in the FIR that he saw the condemned prisoner inflicting on the person of the victim on his own eyes but his deposition claims that he saw directly the conduct of the condemned prisoner in the beating of the victim. Except this version of evidence other evidence corroborates the FIR story. About seeing the condemned prisoner at the relevant time may be an excessive measure taken by this witness, the information of the case, but that does not hamper the prosecution case in any way. It has been corroborated by both his deposition and FIR story that when this witness reached the house of the occurrence, he could see the accused persons along with condemned prisoner leaving the house in a shameful manner.
35. PW 2 is a local man who has no relation with the victim or the informant in any way. He evidence on record reveals that the time, place and manner of the occurrence are exactly similar to the version of PW 1. Immediately after the occurrence he rushed to the scene, the house of the condemned prisoner, where he saw the victim lying at the courtyard in a critical condition with grievous head injury. He heard from PW 1 about the cause of injuries inflicted by condemned prisoner for demanding dowry. The evidence of pw-03 shows that the occurrence took place at about 11-00 am on 26-9-2004 in the house of the condemned prisoner. He saw the victim in a critical condition in a microbus by which he also went to the hospital. This evidence finds support from the evidence of PWs 1 and 2 as to the injury on the person of the victim inflicted by the condemned prisoner. There is definite indication of injuries on the victim which this witness saw on his own eyes immediately after the occurrence and he went to the hospital with them to help as her condition was so worsen and critical. He also heard from PW 1 the cause of attack on the victim was for dowry.
36. PWs 4 and 5, both are full brothers, rushed to the scene immediately after the incident. They also saw the victim lying at the courtyard of condemned prisoner with a severe head injury. This portion of evidence corroborates the evidence of PW 2 who is an independent witness in the instant case. Even then, a piece of evidence is not found inconsistent in their entire evidence. Both the PWs further disclosed that they heard from PW 1 the cause of injury was for dowry. Although PWs 4 and 5 are the relatives of PW 1 but their evidence show that they are credible witnesses in this case. Because their credibility as witnesses are not turned down in any way by the defense during cross-examination. They have narrated exact scenario as to the crime corroborating the evidence of PWs I, 2 and 3.
The evidence of aforesaid 5 live wih1esses regarding injuries of the victim also supported by the evidence of PW 8, the doctor of the post mortem examination report who narrated the cause of death of the victim in the following manner,
“One old incised wound size about 3″ x 2″ x ½” depth cutting of skin, pericranium bone of right side of parietal region of head and one old incised wound 1-1/2 x ½” x ¼” depth over right partial region of head below the injury No.1.”
37. And the Doctor opined that death was due to cardia respiratory failure as a result of shock and hemorrhage due to consequence injuries described which was mortem mortem and homicidal in nature.
38. The injuries of the victim as stated by PWs 1 to 5 have been supported by the post mortem examination report in which two injuries are mentioned on the head of the victim and below the injury No. 01. So, there is no doubt about the injuries inflicted on the victim in the house of the condemned prisoner at the relevant time. has also been supporteu by material exhibits-l to V namely blood stained Saree and blouse, colored photos, bone of head and medical documents of the victim.
39. In respect of these material exhibits no suggestion has been given by the defence that these materials are not belonged to the victim of the case and subsequent death of the victim was not occurred due to the above two injuries inflicted by the condemned prisoner as deposed by the prosecution witnesses. It is not found in evidence that the defence put any suggestion to the witnesses that the victim died due to other reasons or negligence of doctors.
40. It appears from the impugned judgment of the trial court that the victim earlier filed a case against the condemned prisoner on an allegation that he assaulted her for demand of dowry at Taka 20,000 and sent her to her father’s house for meeting his demand. Subsequently the victim was taken back to the house of the condemned prisoner following an amicable settlement. But he made remarks thereafter saying that he would show the music for lodging the case against him so that such initiative does not arise further in future. It has been narrated in the ejaher, exhibit-l that,
”??? ???? ??????? ??? ?????? ???? ????? ????? ???? ??? ??, ???? ??? ???? ??? ?????? ?? ??? ??? ???? ?? ????? ??????, ????¯’? ???? ????………………….
??. ??????’ ?????????? ??? ????? ?? ??? ??????? ???? and subsequent threat it has meant that the condemned prisoner had gathered some grievances in his mind to take action against his wife as to why she made allegation against him by filing a criminal case. So, from this version of evidence it is clearly found probe that the condemned prisoner made himself prepared from before to take revenge on the person of the victim and subsequently he did it on the day of occurrence within his custody. Moreover, the injury inflicted on the head of the victim is so severe that became enough to cause the death. So, the intention of killing is clearly found present in the act and conduct of the condemned prisoner. Therefore, we do not find any cogent ground on this point to consider in the argument of the learned Advocate for the defence.
42. Having considered the above ground and attending circumstances of the case, it appears that the condemned prisoner made attack intentionally on the person of the victim to take his revenge liquidating her forever.
43. Now we are to see whether the marital relationship was subsisting between the victim and the condemned prisoner at the relevant time. It appears from evidence on record that admittedly the victim of the case came under attack at the courtyard of the condemned prisoner and no one denied during cross-examination of the witnesses that both of them had no marital relationship’ as husband and wife at the relevant time rather it has come into evidence that they have a 13 year old son named Masum Billah. Even there is no denial given by the defence that the victim did not receive the injuries within the periphery of condemned prisoner and the defence does not feel to take a plea of alibi that he was not present in his house at the time of commission of crime. And, as such” responsibility goes to the condemned prisoner to explain how his wife sustained severe injuries at the courtyard of his house. There is no explanation as to the cause of injuries on the person of the victim shown by the condemned prisoner neither in course of cross-examination of the prosecution witnesses nor at the time of examination under Section 342 of the CrPC. So he cannot escape his sacred responsibility as per Section 106 of the Evidence Act. Defence simply said in its suggestion that victim was attacked by unknown person but why, it was not suggested by defence. The reason must be there to be explained by the condemned prisoner as husband. The attack as allegedly made by unknown persons in the house of the condemned prisoner is seemed to be a vague term used by the defence in the given suggestion. It does not carry any legal value to consider in favour of the defence.
44. In the absence of any other proof as to the injuries of the wife by her husband i.e. if the husband failed to explain the cause of injuries inflicted on the person of the victim in his periphery, which proves that it was none but the husband to be liable. It finds support from the case of Golam Murtuza vs State, reported in 9 BLC (AD) 229 where their Lordships opined that, “In the absence of any other proof of commission of murder of the wife in other way and in the absence of explanation coming from the side of the husband of the wife for the murder of his wife in his custody and it being proved by evidence that the condemned prisoner demanded dowry some days before murder of his wife and before murder of his wife and the report of post- mortem containing several injuries on the person of Bilkis Banu proving her death and fact of abscondence from the house on the day of occurrence of murder and the petitioner murdered his wife for dowry as has been rightly found by the high court division.”
45. To make the husband liable the minimum fact that must be fetched on record either by direct or circumstantial evidence that the husband was in the house at the relevant time and the victim was within his custody. In the present case in hand we find evidence given by the prosecution witnesses particularly PW 1 and 3-5 who found the victim lying at the courtyard of condemned prisoner with severe head in
