Appellate Division Cases
(Criminal)
PARTIES
The State…………………….…..Appellant
-VS-
Abdul Kader alias Kada and others…………………… Respondents
JUSTICES
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
M.M. Ruhul Amin J
Judgment Dated: 22nd August 2007
The Code of Criminal Procedure. Section 164
The Penal Code. Sections 302/34
Abdur Rashid Vs. the State reported in 27 DLR (AD)1
Abdul Mannan and others Vs. State reported in 44 DLR (AD) 60
Mst. Hamida Bano Vs. Ashiq Hussain and another reported in 15 DLR (SC) 65
The light of a hurricane which was kept on the table in the hut wherein the deceased and the witnesses were sleeping as well as about the dying declaration of the deceased which was heard by the inmates of the other huts of the house i.e. P.Ws. 1, 4 and 10 was of the view that the evidence of the eye witnesses and the witnesses who heard the dying declaration was not uniform as to the presence of all the accused persons and also entertained doubt about the capability of the deceased making dying declaration because of the injures inflicted on him and that because of the evidence of record the deceased died after half an hour of the incident…………………………… (15)
The State filed petition for leave to appeal as against the judgment and order of the High Court Division and leave was granted to consider the submissions that the High Court Division did not evaluate the evidence of eye witnesses and did not find any inherent infirmity or contradiction therein to reject the same and thus was in error in rejecting the evidence of the eye witnesses as well as the evidence of other witnesses who immediately after the incident came at the place of occurrence and heard from the deceased as well as from the inmates of the house ……………………………….(16)
The definite case of the prosecution is that immediately after the incident P.Ws. 1. 4 and 10 who are the inmates of the house of the deceased came at the place of occurrence and heard from the deceased names of his assailants and also heard from the P.Ws. 2 and 6, who are the inmates of the hut of the deceased, about the occurrence and the name of the persons involved in the incident and about causing of injuries by the individual accused persons………………………………. (19)
The deceased stated to them names of the accused persons who caused injuries in different parts of his body. It appears from the evidence of the P.Ws. that place of occurrence is quite close to the house of the accused persons and that in and around the place of occurrence there is habitation of few persons. In that state of the matter it can reasonably be said that non-coming of the thin and few neighbours of the deceased was not unusual, rather probable. The High Court Division in the background the facts and circumstance noted hereinbefore was not correct in entertaining doubt about the prosecution case since witnesses examined are closely relative to the deceased and their testimony was not corroborated by independent and disinterested witnesses. ……………………………….(22)
The rule of prudence generally requires that evidence of the witnesses who are related to the deceased and that the evidence of the witnesses who are interested in the prosecution of the accused persons and the witnesses interse related their testimonies requires to be corroborated by independent and disinterested witness, but the rule is not an absolute or non-flexible one………………………….. (24)
The recognized principle is that where there is enmity between the parties in the proceeding the Rule of prudence requires corroboration of the evidence of the prosecution witnesses, who are deposing against the accuseds in the dock and with whom their is enmity of serious kind, by the independent witness. About the said Rule of prudence it has been stated in the case of Abdul Mannan and others Vs. State reported in 44 DLR (AD) 60 that “But then in a case where bitter enmity is admitted between the parties it is required as a rule of prudence that there should be some such corroboration of the evidence of the interested witness or witnesses as may inspire confidence in the mind of the Court as to the truth of the prosecution case”………………………(25)
In such state of matter the settled principle of. law is that if the witness or witnesses are found reliable then the evidence of the said witness or witnesses can be made basis for finding the accused responsible for the comimission of the offence. In this connection reference may be made to the case of Balak Ram and another Vs. State of U.P. reported in AIR 1974 (SC) 2165 wherein it has been held “the witness could not be disbelieved merely because he was related to the deceased”……………(26)
Mst. Hamida Bano Vs Ashiq Hussain and another reported in 15 DLR (SC)65 wherein it has been observed “It is true that in the average murder case form the rural areas, a major complication in the evaluation of the evidence generally introduced by the difficulty of obtaining persons to testify against the accused other than those who are in ties of relationship with the complainant or have personal animus against the accused. The Courts whose duty it is to adopt careful principles for the safe dispensation of justice act with perfect propriety when they scrutinize the evidence of persons falling in this category with care, and requires corroboration from independent sources before they accept such evidence as sufficient to establish, beyond reasonable doubt, that the accused person is guilty of a capital offence”. It has finally been observed that if the Court on scrutinizing the evidence and upon appreciating “the entire set of circumstances involved” entertains no doubt “whatsoever that each of the eye-witnesses produced in this case is a true witnesses of the occurrence” then the Court can very much rely on the evidence of such witnesses to find the person guilty of the charge of fence. ………………………….………….(27)
In discarding the evidence of the eye witnesses on the ground that they are interested witnesses. Interested evidence by itself cannot be a ground to discard the evidence if one is found to be a truthful witness and telling the truth” …………………….(29)
It is contrary to human nature that after inflicting such injuries, the accused persons would be lingering their stay at the place of occurrence so as to give a chance to the witnesses to recognize them”. It is seen from the evidence of the P.Ws. 1, 4 and 10 that while they were proceeding towards the place of occurrence i.e. hut of the deceased Mohammad Ali they saw the accused persons leaving the place of occurrence and on their arrival at the place of occurrence P.Ws. 2 and 6 narrated the occurrence and also mentioned the name of the persons participated in the incident …………..(32)
The matter of non-use of musk by the accused persons being known to the victim and to his relations, in our opinion, ought not have been a matter for consideration since it is best known to the accused persons why they did not use musk…………….. ……………………….(33)
Enmity is a matter which cuts both way. He submits that in the background of the evidence on record enmity between the parties ought not have been a matter for consideration and thereupon entertaining doubt about the prosecution case…………………. (34)
Dying declaration of the deceased ought not have been rejected or doubted by the High Court Division because of the evidence of the witnesses who immediately after the incident went to the place of occurrence and also because of the evidence of P.W.8, the Medical Officer, who deposed that inspite of the injuries inflicted on the deceased he was in a position to speak for half an hour or two hours. On consideration of the evidence on record we are of the view that the High Court Division was not well founded entertaining doubt about the dying declaration which was heard by P.Ws. 1, 2, 4, 6 and 10. On scrutiny of the evidences of aforesaid witnesses we do not find any reason to doubt the facts of stating the name of the assailants by the deceased………………. (34)
Abdur Rashid Vs. the State reported in 27 DLR (AD)1 wherein it has been observed “in a case of murder the age of injuries is an important fact to determine the approximate time of occurrence”. The facts of the reported case is totally different from the facts of the instant case since in the reported case the question for consideration and determination was that at which hour of the night the murder took place since prosecution case was that the murder took place at the early dawn after taking Sehri but in the postmortem report it was held that there was lA pound digested food materials in the stomach and the bladder was found full of urine. So the case relied upon by the learned Counsel in support of his contention that non-recording of age of injuries in the postmortem examination report made prosecution case doubtful is of no merit as in the instant case it has been established by the prosecution through the evidence of competent and reliable witness at what time
occurrence took place………………………….. (38)
Mohammad Ali Akand, Deputy Attorney General, instructed by Mvi. Md. Wah idullah, Advocate-on -record ………………….For the appellant
Abdul Jabbar, Advocate, instructed by Muhammad Nawab Ali, Advocate-on-record
………………………………………….For the respondents
Criminal Appeal No. 24 of 2000
(From the Judgment and Order dated May
16, 1994 passed by the High Court Division
in Criminal Appeal No. 1026 of 1991)
JUDGMENT
Md. Ruhul Amin CJ: This appeal, by leave, is against the judgment and order dated May 16, 1994 of a Division Bench of the High Court Division in criminal Appeal No. 1026 of 1991 allowing the same upon setting aside the judgment and order dated 17th June. 1991 of the Court of Sessions Judge, Jamalpur passed in Session Case No. 58 of 1990 convicting the respondents, namely Abdul Kader alis Kada, Hasen Ali, Dudu alias Duda Mondal, Mafizuddin alias Chan, Sayeduzzaman and Abdur Rahman, under sections 302/34 of the Penal Code and sentencing each of them to suffer imprisonment for life. The learned Sessions Judge by the same judgment acquitted accused Abdus Samad Mondal of the charge levelled under section 302/34 of the Penal Code.
2. The aforementioned convicts filed Criminal appeal No. 1026 of 1991 as against the judgment and order of the Court of Sessions Judge as mentioned hereinbefore.
3. Prosecution case as narrated by the P.W.I, brother of the deceased Mohammad Ali, in short, is that Abdus Samad Mondal (acquitted) a neighbour of the deceased Mohammad Ali erected a tinshed hut for running a ‘moktab’ on 18 decimals of land of Plot No. 430
closed to the house of the informant (P.W.I) Md. Abdur Rahim, Brother of deceased Mohammad Ali, that the deceased and his brother protested to the erection of the hut as the land in which tinshed was erected belongs to the informant and his brother Mohammad Ali, thru P.W.I and his brother protested against the forcible erection of the tin-shed over their land and requested Abdus Samad Mondal to remove the structure and thereupon Abdus Samad Mondal claimed that he has share in the said land, and because of erection of tin-shed there was serious bitterness between the parties, that at about 9.00
p.m. in the night following June 29, 1990 P.W. 1 went to sleep in his north bhiti hut and other inmates of the house also went to sleep and at about 1.00 hour of 30th June, 1990 the informant and other inmates of the huts of the house heard cry of P.W.2 and P.W.6, wife and daughter respectively of the deceased Mohammad Ali who were sleeping with
the deceased in the south bhiti hut of the house and thereupon inmates of the other huts of the house (P.Ws. 1, 4 10 and 11) came out of their huts with hurricane and while proceeding towards the hut of the deceased they saw 6(six) accuseds (respondents herein) and accused Abdus samad Mondal (acquitted) leaving the hut of the deceased.
4. The further case of the prosecution is that Abdus Samad Mondal and the other accuseds (respondents herein) armed with daos and daggers entered through the eastern window, which was open, into the hut of the deceased and under the order of Abdus samad Mondal, accused Abdul Kader dealt dao blows on the nose and face of the deceased, accused Hasen Ali dealt a blow by a dagger in the right side of the chest of the
deceased, accused sayeduzzaman dealt a blow by a dagger in the left side of the chest of the deceased, accused Dudu dealt a dagger blow in the palm of the right hand of the deceased and Mofizuddin as well as Abdur Rahman inflicted dagger blows on various places of the body of the deceased, that P.Ws.2 and 6 recognized the accused persons by
the light of the hurricance which was on a table and saw the accused persons assaulting the deceased, that the inmates of the other huts of the house i.e. P.Ws. 1,4,10 and 11 upon entering into the hut of the deceased found him in serious injured condition and the deceased stated to them about the incident and the deceased as well as the P.Ws. 2 and 6
narrated the incident to the aforementioned inmates of the house and also about the recognition of the accused persons, that the deceased stated that Abdus Samad Mondal passed order to kill him and thereupon accused Abdul Kader dealt dao blows on the nose and face of the deceased and Hasen Ali dealt blow by a dagger in the right side of chest of the deceased and Sayeduzzaman dealt a blow by a dagger in left side of the chest of the deceased and accused Dudu dealt a blow by a dagger in the palm of the right hand and accuseds Mofizuddin and Abdur Rahman inflicted dagger blows at various places of the body of the deceased.
5. The deceased succumbed to the injuries after half an hour of the arrival of the inmates of the other huts of the house.
6. P.W.I over the aforesaid incident lodged First Information Report on June 30th, 1990 and thereupon Melandaha P.S. Case No. 5 dated 30 June, 1990 was registered under sections 449/302/114 read with section 34 of the Penal Code.
7. The Investigating Agency on completion of investigation submitted charge sheet on September 1st, 1990 against 7 accused persons including the respondents in the appeal and another (since acquitted) under section 449/302/114 read with section 34 of the Penal Code.
8. In due course records were sent to the Court of Sessions Judge, Jamalpur and thereupon Session Case No. 58 of 1990 was registered.
9. The accused persons in all 7 were put on trial and they were called upon to answer the charge under sections 302 read with section 34 of the Penal Code to which they pleaded innocence and claimed to be tried.
10. Prosecution in all examined 13 witnesses. Of them P.W.5 at the relevant time was the Officer-in-Charge of Malendaha Police Station and recorded the FIR on the oral statement of the informant (P.W.I), P.W.7 was the Upazila Magistrate who recorded the
statements of P.Ws. 2 and 6 and another witness under section 164 of the Code of Criminal Procedure, P.W.8 is the Doctor who conducted postmortem examination
of the dead body, P.W. 12, is the Constable who escorted the dead body to the morgue and P.W. 13, is the Investigating Officer who on completion of investigation submitted charge-sheet, P.W. 11 was tendered for prosecution but he was not cross-examied.
11. P.W.I is the brother of the deceased Mohammad Ali, P.W.2 is the wife of the
deceased Mohammad Ali, P.W.3 is the Chairman of the Local Union Parishad, who went to the hui of the deceased in the morning, P.W.4 is the nephew of the deceased, P.W.6 is the daughter of the deceased, P.W.9 whose house is at a distance of 1/4 mile from the place of occurrence went to the hut of the deceased in the morning, P.W. 10 is also
brother of the deceased.
12. As stated hereinbefore the trial Court on consideration of the evidence of the eye witnesses as well as of the witnesses who immediately after the incident went to the place of occurrence and to whom the deceased stated the name of the accused persons as well as the P.Ws. 2 and 6 disclosed the name of the assailants of the deceased Mohammad
Ali and the statement of deceased as to inflicting of blows by sharp cutting weapons by the accused persons in different places of the body of the deceased which was heard by the P.Ws. and they deposed about the same, convicted and sentenced the respondent as stated above. It may be mentioned that the eye witnesses i.e. P.Ws. 2 and 6 inmates of
the hut insider whereof incident took place and the witnesses i.e. P.Ws 1,4, 10 and 11 who while proceeding towards hut of the deceased having had heard cry from the direction of the hut of the deceased Mohammad Ali recognized the accused persons by the light of hurricane.
13. The case of the accused persons was that there was no occurrence at the time, at the place and in the manner as alleged by the prosecution and that they have been implicated in the case at the instance of P.W.3, local Chairman out of enmity and that the deceased was murdered elsewhere by some unknown assailants.
14. The convicts i.e. the respondents herein filed appeal as against the conviction
and sentence passed by the trial court. The High Court Division on assessment of the evidence and upon consideration of the materials on record arrived at the conclusion that: (i) Corroborative evidence by independent witnesses about recognition of the appellants
is lacking, (ii) there is hardly any chance of recognition by P.Ws. 1,4, lo and 11, because it was mentioned in the FIR that after infliction of injuries by the accused persons on the person of the deceased P.W.2 and P.W. 6 raised a cry whereupon the inmates of the other huts of the house started coming towards the hut of the deceased. It is contrary to human nature that after inflicting such injuries, the accused persons would be lingering their stay at the place of occurrence as to give a chance to the witnesses to recognize them, (iii) the recognition of the accused persons by P.W.2 and P.W.6 in the light of the hurricane has
not received corroboration from independent or disinterested witnesses. One herricane has been seized inspite of mention of two hurricanes in the F.I.R, (iv) there is enmity between the deceased and accused Abdus Samad, (v) the suggestion of enmity between P.W.3 Nurul Islam and the accused persons, (vi) non-examination of the F.I.R. named
witnesses like Fazlul Hoq and Nuru, (vii) the faces of the accused persons were not covered with any mask or clothes though they were know to the deceased and inmate of the hut and (viii) the suggestion of false implication of the accused persons at the instance of the local Chairman, P.W.3, Nurul Islam.
15. The High Court Division about the witnessing of the incident by the P.Ws. 2 and 6 by the light of a hurricane which was kept on the table in the hut wherein the deceased and the witnesses were sleeping as well as about the dying declaration of the deceased which was heard by the inmates of the other huts of the house i.e. P.Ws. 1, 4 and 10 was of the
view that the evidence of the eye witnesses and the witnesses who heard the dying declaration was not uniform as to the presence of all the accused persons and also entertained doubt about the capability of the deceased making dying declaration because of the injures inflicted on him and that because of the evidence of record the deceased died after half an hour of the incident. The High Court Division also noticed presence of
infirmity in the evidence of P.Ws. 2 and 6 and the statements of the said two witnesses
recorded by P.W.7, Upazilla Magistrate under section 164 of the Code of Criminal Procedure. The High Court Division also considered the relationship of the witnesses and in the background thereof considered them as interested witnesses. The said Division also
considered the matter of absence of corroboration of the prosecution case by independent and disinterested witness as well as enmity between the deceased and members of his family and the accused persons. The High Court Division finally held that the trial Court “while delivering the judgment, has failed to consider all the important features of the case and the evidence on record. In these circumstances we consider that this is a fit
case were the accused persons should be awarded the benefit of doubt” and thereupon
observed that it is difficult to sustain the order of conviction and sentence passed by the trial Court. The High Court Division on the aforesaid observations and findings acquitted the appellants, i.e., the respondents herein.
16. The State filed petition for leave to appeal as against the judgment and order of the High Court Division and leave was granted to consider the submissions that the High Court Division did not evaluate the evidence of eye witnesses and did not find any inherent infirmity or contradiction therein to reject the same and thus was in error in rejecting the evidence of the eye witnesses as well as the evidence of other witnesses who immediately after the incident came at the place of occurrence and heard from the deceased as well as from the inmates of the house (P.Ws. 2 and 6) about the occurrence as well as the involvement of the accused persons on some artificial reasons such as enmity with P.W.3 and possibility of false implication at his instance, non-wearing of mask by the accused and as such the order of acquittal passed by the High Court Division is erroneous, that reasons assigned by the High Court Division in acquitting the respondents are mere surmises and conjectures and as such the order of the acquittal is not sustainable in law, that considering the time and place of occurrence at dead of night insider the hut corroboration by independent witnesses not being possible, acquittal of the respondents on the said ground is not legal.
17. The learned Deputy Attorney General in support of the grounds upon which leave was obtained as against the judgment of the High Court Division acquitting the respondents submitted that the High Court Division did not consider the evidence of P.Ws. 2 and 6, inmates of the hut wherein incident took place, the eye witnesses, in the background of the facts and circumstances of the cas2 and the materials on record and
the evidence of the said witnesses did not receive the consideration as was required to receive. It is seen from the judgment of the High Court Division that the said Division was slow to place reliance on the evidence of the said two eye witnesses taking into consideration the matter of seizure of one hurricane which was kept on a table in between
two chowkies on one of which, P.W.2 and the deceased were sleeping and on another P.W.6 and her younger brother were sleeping, although in the FIR there was mention of two hurricanes and the fact stated by the deceased in his dying declaration and heard by P.Ws. 1, 4 and 10, mentioning the name of 7 accused persons including the respondents, but the P.W. 7 who recorded the statements of P.Ws. 2 and 6 under section 164 of the
Code of Criminal Procedure stated that the said two witnesses in their statements stated that the deceased in his dying declaration mentioned the name of Abdus Samad and Abdul Kader and thereafter he died and that also took into consideration the evidence of the P.W.8 who held autopsy of the dead body of Mohammad Ali stated that in the background of the injuries inflicted on the deceased he could have been in a position
to speak for half an hour or two hours. In the background of the aforesaid fact as it appears the High Court Division was of the view that there were embell’shment by the said two witnesses about the accused persons other than Abdus Samad Mondal and Abdul Kader.
18. As seen from the materials on record that immediately after the incident P.Ws.l, 4 and 10 came at the place of occurrence and it is in their evidence that the deceased in his dying declaration mentioned name of the accused persons and that P.Ws. 2 and 6 also narrated the incident to them and mentioned name of the accused persons. The High Court Division was slow in placing reliance on the evidence of the said three witnesses
because of being related to the deceased. The High Court Division did not accept the fact of recognition of the accused persons by the P.Ws. 1.4 and 10 since it is in the evidence of the P.Ws. 2 and 6 that when P.W.I came at the place of occurrence he had a lighted hurricane in his hand and P.W.I also stated that he came out of his hut with a lighted hurricane and while he and other two witnesses i.e. P.Ws. 4 and 10 while were proceeding towards the hut of the deceased they saw by the light of the hurricane the
accuseds fleeing away with lethal weapons in their hands. The High Court Division took serious exception about the matter of recognition of the accused persons by the said witnesses since the Investigating Officer stated that he seized one hurricane which at the time of occurrence was burning in the hut of the deceased.
19. The definite case of the prosecution is that immediately after the incident P.Ws. 1. 4 and 10 who are the inmates of the house of the deceased came at the place of occurrence and heard from the deceased names of his assailants and also heard from the P.Ws. 2 and 6, who are the inmates of the hut of the deceased, about the occurrence and the name of the persons involved in the incident and about causing of injuries by the individual accused persons. In the background of the aforesaid proved fact exception was taken about non-seizure of the hurricane that was in the hand of the P.W.I and consequent thereupon the matter ol’ recognition of the accused persons by P.ws. 1, 4 and 10 while they were fleeing away was not taken into consideration, but still then there remains the evidence of the eye witnesses. P.Ws. 2 and 6 and seizure of the hurricane which was on a table between the chowkies in one of which P.W. 2 and her husband, the deceased, were sleeping and in another P.W. 6 and her brother were sleeping and the fact of recognition
of the accused persons by the said two witnesses cannot be left out of consideration only because there in discrepancy in their evidence and in the statement of the said witnesses recorded by the P.W. 7 under section 164 of the Code of Criminal Procedure overlooking the fact that immediately after the incident the said two witnesses stated the fact of recognition of the accused to the P.Ws. 1. 4 and 10 and also disclosured the names of the persons who were the participants in the incident and about the inflicting of blows by lethal weapons by the different accused persons and the dying declaration which was heard P.Ws. 1, 2, 4, 6 and 10. It is seen from the evidence of P.W.8, who held autopsy
of the deceased, that he stated that the deceased was in a position to speak for half an hour or two hours i.e. the deceased with the injuries noticed by the Medical Officer could very much servive for the aforesaid period and thereafter likely to succumb the injuries.
20. In the background of the aforesaid discussion of the evidence and the circumstance
we are of the view the High Court Division was in error in considering the evidence of P.Ws. 2 and 6 unreliable on the ground of embellishment and the evidence of P.Ws. 1, 4 and 10 for non-seizure of the hurricane which they carried while they were coming to the
hut of the deceased and recognized the accuseds with the light of hurricane while the accused persons were fleeing away from the hut of the deceased. In the facts and circumstance of the case seizure of hurricane burning inside the hut where occurrence took place and by the light whereof P.Ws. 2 and 6 recognized the accused was material and the same was seized. Non-seizure of the hurricane with which P.Ws. 1, 4 and 10
approached to the hut of the deceased was not so much material since on their arrival in the hut of the deceased the inmates thereof disclosed the name of the assailants of the deceased and the said witnesses deposed in the Court about the said fact.
21. It is seen from the judgment of the High Court Division that the said Division considered the evidence of eye witnesses, i.e. P.Ws. 2 and 6 and the evidence of P.Ws. 1,4 and 10, who stated that they saw the accused persons fleeing away from the place of occurrence with weapons, is the evidence of persons who are closely related to each other and consequent thereupon interested in obtaining conviction of the accused persons
because of enmity and that the evidence of the said witnesses was not supported or corroborated by independent and disinterested witness. Keeping in mind the time at which occurrence took place, P.Ws. 1, 4 and 10 were the probable and natural persons to go to the place of occurrence and coming of others than the inmates of the huts of the house of the deceased was unlikely and non-probable.
22. As it appears the High Court Division lost sight of the fact that the incident took place at 1.00 hour of June 30, 1990 inside the hut wherein the inmates were the deceased, P.Ws. 2 and 6 and the younger brother of P.W.6. In that state of the matter P.Ws. 2 and 6 are the persons who could only witness the incident by the light of the hurricane which vvas burning inside the hut and that fact has been established by the evidence of reliable witness and also by the fact of seizure of the hurricane that was burning insider the hut wherein incident took place and culminated in the murder of the Mohammad Ali, husband of the P.W.2 and that by the persons, who are the inmates of the homestead of the deceased, came upon hearing cry from the hut of the deceased. These witnesses i.e. P.Ws. 1, 4 and 10 arc the natural witnesses since they are the inmates of homestead of the deceased and in all probability they are the persons who are likely to come upon hearing cry from the hut of the deceased. It is in the evidence of the said three witnesses i.e. P.Ws. 1, 4 and 10 that on their going to the place of occurrence P.Ws. 2 and 6 narrated the occurrence to them and also stated about the specific participation of the accused
persons in the incident and inflicting of so blows by lethal weapons. It is also in the evidence of the said witnesses that on their reaching at the hut of the deceased, the deceased stated to them names of the accused persons who caused injuries in different parts of his body. It appears from the evidence of the P.Ws. that place of occurrence is quite close to the house of the accused persons and that in and around the place of occurrence there is habitation of few persons. In that state of the matter it can reasonably be said that non-coming of the thin and few neighbours of the deceased was not unusual,
rather probable. The High Court Division in the background the facts and circumstance noted hereinbefore was not correct in entertaining doubt about the prosecution case since witnesses examined are closely relative to the deceased and their testimony was not corroborated by independent and disinterested witnesses. It is seen from the materials on
record P.W.3, the local Chairman, came at the place of occurrence in the morning of 30th June, 1990 and also the P.W. 9 came at the place of occurrence in the morning of the 30th June, 1990. These two witnesses heard about the incident from the P.Ws. 2 and 6 and P.W.I also mentioned to the said two witnesses names of the accused persons. In the
background of the materials on record it is seen that non-rushing of the neighbours
immediately after the incident was quite natural and probable because of the physical position of the place of occurrence and the habitation in and around the place of occurrence. In that background, in our view, the High Court Division was in error in entertaining doubt about the prosecution case since the evidence brought on record by the
prosecution was not corroborated by the independent and disinterested witnesses. The prosecution brought on record evidence of the witnesses who were natural and probable in the background of the facts of the case to prove its case. The prosecution by the veidence of eye witnesses (P.Ws. 2 and 6) has established the participation of the accused persons in the occurrence and also the fact of infliction of blows by lethal weapons by the individual participants in the occurrence.
23. On scrutiny of the evidence of the P.Ws. 1,2,4,6 and 10 we do not find any infirmity or contradiction of the kind and nature calling for rejection of the evidence of the said witnesses or for entertaining doubt about the reliability of the evidence of the said witnesses. Since the prosecution has produced in support of its case natural and reliable witness we are of the view the High Court Division was not correct in discarding the testimony of the said witnesses merely because they were related to the deceased and that they were not supported by independent and disinterested witnesses.
24. The rule of prudence generally requires that evidence of the witnesses who are related to the deceased and that the evidence of the witnesses who are interested in the prosecution of the accused persons and the witnesses intersc related their testimonies requires to be corroborated by independent and disinteiested witness, but the rule is not an absolute or non-flexible one. In the background of the facts of a particularly case it may happen for more than one reason witnesses who could have been considered as independent and disinterested witnesses are not coming foreward and in the said circumstance prosecution case relies on the testimony of the witnesses who are either close to the victim of the incident or interested in the prosecution of the accused persons since the victim of the occurrence was their man or near and dear one. In that case if on scrutiny of the evidence of the said witnesses it is seen the evidence of the said witnesses does not suffer from the kind of infirmity or contradiption to make them unreliable, in that case, the Court is quite competent to consider the evidence of the witnesses deposed in the case inspite of their being closely related to the victim of the incident or perceived / supposed to be interested in the prosecution of the accused persons for coming to the conclusion about the guilt of the persons put on trial. The Court is quite competent to place reliance on the evidence of such witness and to make its judgment on the basis of the said evidence either way in respect of person tried for the offence said to have committed. The instant case is the one in which prosecution examined the eye witnesses and the witnesses came immediately at the place of occurrence and to whom the eye witnesses narrated the incident and stated names of the participants in the incident which culminated in the murder of Mohammad Ali, husband of the P.W.2 and father of the P.W.6. The instant prosecution case rests on the evidence of P.Ws. 1, 2, 4, 6 and 10 who are closely related to the deceased and also related to each other and for that matler can also reasonably be considered interested in the prosecution of the accused persons. It has already been mentioned why the prosecution, could not bring before the Court independent or disinterested witnesses other than P.Ws. 3 and 9 who came at the place of occurrence in the morning of 30th June, 1990, though the incident took place at about 1.00 hour of 30th June, 1990 and to them the inmates of the house of the deceased i.e. P.Ws. 2 and 6 and the P.W. I narrated the incident and also mentioned the name of the persons involved in the incident. From defence’s side it was contended that the whole case was initiated at the instance of P.W.3, since the accused persons canvassed during the Union Council election against the P.W.3 who was a candidate for the office of the Chairman of the local Union Parishad. The suggestion so made in respect of P.W.3 is of general nature and said kind of suggestion is commonly and invariably made in respect a witness like P.W.3. From the evidence of P.W.9 it is seen that although he came in the morning of 30th June, 1990 and heard about the incident and the inmates of the house also mentioned the name of the persons who participated in the incident. There is nothing in his evidence that he is either related to the victim of the incident or interested in any
respect in the prosecution of the accused persons. It may also be mentioned P.W. 3 has denied the allegation made against him that he out of grudge falsely implicated the accused persons in the case. This witness also came at the place of occurrence in the morning and the inmates of the hut i.e. place of occurrence narrated the incident to him and also mentioned the name of the persons who participated in the incident and
caused death of Mohammad Ali. It is seen from the evidence of P.W.3 that when he went to the house of the deceased some other persons also came at that time. All those persons came in the morning, although incident took place at about 1.00 hour of hour of 30th
June, 1990. The testimony of the persons who came at the hut of the deceased in
the morning would have been of the same nature and kind as of the evidence of P.Ws. 3 and 9 and in that background of the fact we are of the view it cannot be said that prosecution had withheld independent and disinterested witness.
25. In this case occurrence took place at l(one) hour of the night of 30th June, 1990 when the inmates of the hut alone at the first instance and the persons who having heard cry of the inmates of the hut in which incident took place approached towards the said hut with
hurricane are the persons who recognized persons responsible for causing the incident. It is also on record that the relationship between the victim of the incident and the persons who have caused the incident is bittah. The recognized principle is that where there is
enmity between the parties in the proceeding the Rule of prudence requires corroboration of the evidence of the prosecution witnesses, who are deposing against the accuseds in the dock and with whom their is enmity of serious kind, by the independent witness. About the said Rule of prudence it has been stated in the case of Abdul Mannan and others Vs. State reported in 44 DLR (AD) 60 that “But then in a case where bitter enmity is admitted between the parties it is required as a rule of prudence that there should be some such corroboration of the evidence of the interested witness or witnesses as may inspire confidence in the mind of the Court as to the truth of the prosecution case”. In the instant case it has already been discussed that there is nothing in the evidence of the witnesses who recognized the assailants who caused death of victim in the incident,
inspite of bitter relationship between the prosecution witnesses and the accused persons to entertain doubt about the truth oi’ the incident and participation of the accused as deposed by the prosecution witnesses.
26. In the instant case some of the witnesses are related to the deceased. In such state of matter the settled principle of. law is that if the witness or witnesses are found reliable then the evidence of the said witness or witnesses can be made basis for finding the accused responsible for the comimission of the offence. In this connection reference
may be made to the case of Balak Ram and another Vs. State of U.P. reporte’d in
AIR 1974 (SC) 2165 wherein it has been held “the witness could not be disbelieved
merely because he was related to the deceased”.
27. I;rom the materials on record it transpire that the witnesses who recognized the assailants of the victim of the incident are related to each other and for that they are also likely to be considered interested and partisan witnesses and as such the matter for consideration is whether evidence of the witnesses who are apparently appears partisan and interested should be left out of consideration. This aspect of the matter came up
for consideration in the case of Mst. Hamida Bano Vs Ashiq Hussain and another reported in 15 DLR (SC)65 wherein it has been observed “It is true that in the average murder case form the rural areas, a major complication in the evaluation of the evidence generally introduced by the difficulty of obtaining persons to testify against the accused
other than those who are in ties of relationship with the complainant or have personal animus against the accused. The Courts whose duty it is to adopt careful principles for the safe dispensation of justice act with perfect propriety when they scrutinize the evidence of persons falling in this category with care, and requires corroboration from independent sources before they accept such evidence as sufficient to establish, beyond reasonable doubt, that the accused person is guilty of a capital offence”. It has finally been observed that if the Court on scrutinizing the evidence and upon appreciating “the entire set of circumstances involved” entertains no doubt “whatsoever that each of the eye-witnesses produced in this case is a true witnesses of the occurrence” then the Court can very much rely on the evidence of such witnesses to find the person guilty of the charge of fence.
28. The question of consideration of the witnesses who are interested, interrelated and partisan came up for consideration in the case of Nowabul Alam and others Vs. The State reported in (1995) 15 BLD (AD) 54 (same case has also been reported in 45 DLR (AD) 140) wherein it has been observed “The principle that is to be followed is that the evidence of persons failing in the category of interested, interrelated and partisan witnesses, must be closely and critically scrutinised. They should not be accepted on their face value. Their evidence cannot be rejected’outright simply because they are interested witnesses for that will result in a failure of justice, but their evidence is liable to be scrutinized with more care and caution than is necessary in the case of disinterested and unrelated witness. An interested witness is one who has a motive for falsely implication
an accused person and that is the reason why his evidence is initially suspect. His evidence has to cross the hurdle of critical appreciation. As his evidence cannot be thrown out mechanically because of his interestedness, so his evidence cannot be accepted mechanically without a critical examination.The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than an ordinary rule of appreciation of evidence”. The Court is quite competent to
place reliance on the evidence of witnesses ,who falls in the category of interested, interrelated or partisan witnesses, if in the background of materials on record finds “some circumstances that gives sufficient support” to the evidence of such witnesses “to create that degree of probability which can be made the basis of conviction. That is what is
meant by saying that the statement of an interested witness ordinarily needs corroboration”.
29. The matter of making basis the evidence of eye witnesses, who are being considered interested witnesses, in finding an accused guilty of the offence charged also came up for consideration in the case of State Vs. Ful Mia reported in (2000) 5 BLC (AD) 41 wherein it has been observed that the Court was in error “in discarding the evidence of the eye
witnesses on the ground that they are interested witnesses. Interested evidence by itself cannot be a ground to discard the evidence if one is found to be a truthful witness and telling the truth”.
30. It is seen from the above observation that it is the utmost duty of the Court to
scrutinize the evidence of a witness who is being considered interested witness to find out such witness or witnesses has regard for truth and what he has deposed about the incident is true. This aspect of the matter is to be ascertained from the surrounding circumstances of the case and on scrutiny of the materials on record.
31. If on consideration of the evidence and the circumstance it is seen that the witness or witnesses are related to each other and to the deceased also, in such a situation at the time of consideration of the evidence of such witness or witnesses what the Court should do came up for consideration in the case of Abdul Karim Vs. State and another reported in
(1981) 1 BLD (AD) 200 wherein it has been observed “Relationship by itself cannot be a ground for rejecting testimony of a witness unless it is shown that the witness was biased and resorted to falsehood”.
32. As seen from the judgment of the High Court Division that the said Division entertained doubt about the testimony of the P.W.I, 4 and 10 since they came at the place of occurrence after raising alarm by P.Ws. 2 and 6 and has observed “It is contrary to human nature that after inflicting such injuries, the accused persons would be lingering their stay at the place of occurrence so as to give a chance to the witnesses to recognize
them”. It is seen from the evidence of the P.Ws. 1, 4 and 10 that while they were proceeding towards the place of occurrence i.e. hut of the deceased Mohammad Ali they saw the accused persons leaving the place of occurrence and on their arrival at the place of occurrence P.Ws. 2 and 6 narrated the occurrence and also mentioned the name of
the persons participated in the incident. The said P.Ws. arc the eye witnesses to the extent of fact of fleeing away of the accused persons from the place of occurrence. It is in the evidence of the P.W. 1, 4 and 10 that their huts are very close to the hut of the deceased and that on hearing cry of the inmates of the deceased’s hut the said witnesses came out of their huts and they saw accused persons near the house of the deceased. In that view
of the matter we are of the opinion the High Court Division was in error in discarding
the evidence of the said 3 P.Ws. on the ground that after the incident the accused persons were not supposed to stay in the place of occurrence and would give chance to be these 3 P.Ws. to recognize them. The view taken by the High Court Division as mentioned above
and thereupon rejection of the evidence of P.Ws. 1, 4 and 10 appears to be not well founded as the said view has been taken upon the hypothesis of possibility of fleeing away of the accuseds without waiting on accomplishing their mission and the High Court Division acted on the said hypothesis without noticing the facts on record. The High Court Division discarded the evidence of P.Ws.2 and 6 as to recognition of the accused persons by the light of the hurricane since their evidence was not corroborated by independent or disinterested witnesses and that there was no seizure of the hurricane
which carried by the P.W.I. In our view the High Court Division was not correct in discarding the evidence of P.Ws. 2 and 6 since there is no infirmity or contradiction
in their evidence making them unreliable as regard the facts deposed by them and because of quality of the evidence of the said two witnesses in the absence of the evidence of independent and disinterested witness corroborating the said witnesses reliance can very much be placed on their evidence. In the background of the facts as has already been mentioned hereinbefore other than the relatives of the deceased who have
deposed in the case non-coming of others in the night of occurrent was natural and probable and that prosecution having had examined P.Ws. 3 and 9 who came at the place of occurrence in the morning it cannot said that the prosecution in establishing its case against the accused did not examine natural and disinterested witness to corroborate P.Ws. 1, 2, 4, 6 and 10. The High Court Division in entertaining doubt about the
prosecution case has also taken into consideration the matter of enmity between the deceased and accused Abdus Samad, enmity between the P.W.3 and the accused persons, non-examination of the FIR named witnesses Fazlul Hoq and Nuru and fact of non-use of musk by the ; accused persons and the suggestion of false implication of the accused persons at the instance of the P.W.3-the local union council Chairman.
33. It is seen from the prosecution report that therein 15 (fifteen) persons were listed as the witnesses and out of them 13 (thirteen) persons were examined and of the remaining 2 (two) who were not examined one was the Constable and other was the second wife of the deceased. It is in the evidence on record that the second wife of the deceased Bulbuli Begum at the time of trial was staying with the accused persons being their relation. The matter of non-use of musk by the accused persons being known to the victim and to his relations, in our opinion, ought not have been a matter for consideration since it is best
known to the accused persons why they did not use musk. The other matter i.e. enmity between the deceased and the accused persons and the suggestion given to P.W.3 as to false implication of the accused persons at the instance of the said witness should have also not been matter for consideration in the background of the evidence of P.Ws. 1. 2, 4,
6 and 10 and further for entertaining doubt about the prosecution case because of the suggestion as to false implication of the accused persons at the instance of P.W.3 being a mere suggestion and that fact having not been made probable either upon eliciting matters from the testimony of the witnesses of the prosecution or by producing evidence
from the side of the accused persons.
34. It has been submitted by the learned Deputy Attorney General that the prosecution
having had proved its case by examining the best witnesses of the incident i.e. P.Ws. 2 and 6 and they having been corroborated by P.Ws. 1, 4 and 10 who came immediately after the incident at the place of occurrence and to whom the eye witnesses narrated the incident and also disclosed the name of the assailants of the deceased. It has also been submitted that the place wherein incident took place it was not possible for any body else other than the P.Ws. 2 and 6, who were with the deceased, to sec the incident and there was no occasion for the outsider to see the incident because of the time when occurrence
occurred. The learned Deputy Attorney General has further submitted that the enmity is a matter which cuts both way. lie submits that in the background of the evidence on record enmity between the parties ought not have been a matter for consideration and thereupon entertaining doubt about the prosecution case. The submission so made by the learned
Deputy Attorney General merits consideration, since in the background of reliable
evidence on record the High Court Division was not correct in entertaining doubt about the prosecution case on the ground of enmity between the parties. The learned Deputy Attorney General continued that dying declaration of the deceased ought not have been rejected or doubted by the High Court Division because of the evidence of the witnesses
who immediately after the incident went to the place of occurrence and also because of the evidence of P.W.8, the Medical Officer, who deposed that inspite of the injuries inflicted on the deceased he was in a position to speak for half an hour or two hours. On consideration ol’ the evidence on record we are of the view that the High Court Division
was not well founded entertaining doubt about the dying declaration which was heard by P.Ws. 1, 2, 4, 6 and 10. On scrutiny of the evidences of aforesaid witnesses we do not find any reason to doubt the facts of stating the name of the assailants by the deceased.
35. As against the submissions of the learned Deputy Attorney General the learned counsel for the respondents submitted that the High Court Division had correctly discarded the evidence of P.Ws. 2 and 6 who claimed to be eye witnesses of the incident since in their statements recorded by the P.W.7 under section 164 of the Code of Criminal Procedure, they stated that the deceased mentioned name of Abdus Saimad and
Abdul Kader and thereafter died. In the background of the facts and circumstance of the case it can be concluded that even if there is absence of name of the other 5(five) accused persons in the statement of P.Ws. 2 and 6 recorded by the P.W.7 as per provision of section 36. 161 of the Code of Criminal Procedure but because of the nature of the evidence on record, particularly the evidence of said two witnesses (P.Ws. 2 and 6) when considered along with the evidence of the P.Ws. 1, 4 and 10 we find that there is no reason to discard the evidence of the said eye witnesses.
37. The learned counsel for the respondents has also submitted that the Doctor, who held postmortem examination of the dead body of Mohammad Ali, in his report did not record the age of the injuries which was noticed by him in the different places of the body of the
deceased and that had the age of the injuries were noted in the postmortem report it would have certainly show that occurrence did not take place at the time as alleged by the prosecution and in support thereof he has referred to the case of Abdur Rashid Vs. the State reported in 27 DLR (AD)1 wherein it has been observed “in a case of murder the age of injuries is an important fact to determine the approximate time of occurrence”. The facts of the reported case is totally different from the facts of the instant case since in the reported case the question for consideration and determination was that at which hour of the night the murder took place since prosecution case was that the murder took place at
the early dawn after taking Sehri but in the postmortem report it was held thai there was lA pound digested food materials .in the stomach and the bladder was found full of urine. So the case relied upon by the learned Counsel in support of his contention that non-recording of age of injuries in the postmortem examination report made prosecution case
doubtful is of no merit as in the instant case it has been established by the prosecution
through the evidence of competent and reliable witness at what time occurrence took place.
38. On consideration of the evidence on record we arc of the view the High Court Division has set aside the judgment and order of the trial Court upon taking into consideration the matters, which because of the evidence on record had little bearing
on the prosecution case and the said Division has put undue emphasis on the materials which are product of surmise and hypothesis far from the materials on record. In the background of the evidence on record the High Court Division ought not have taken into consideration supposed materials which are not backed by the materials on record.
39. In the background of the discussion made hereinbefore and because of the materials on record we find merit in the appeal. Accordingly, the same is allowed.
40. The respondents are directed to surrender to their respective bail bond to serve out the remain part of their sentence awarded by the trial Court.
Source : V ADC (2008), 70