HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
|Mr. Siddiqur Rahman Miah, J.
Mrs. Krishna Debnath, J.
|Abul Basher and another
Nari-O-Shisu Nirjaton Daman Ain (XVIII of 1995)
Sections 10(2) & 14
Evidence Act ( I of 1872)
Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated and the alleged occure-nce does not come within the ambit of section 10(2) of the Ain. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the victim and then poured poison into his mouth have not been proved. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corrobor-ation to the direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecu-tion. Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out. The learned Judge of the trial court below substituted “moral conviction for legal evidence” which is not allowed in law and, thus the impugned judgment and order of conviction and sentence is illegal and liable to be set aside.
….(39, 48, 52 & 53)
Osena Begum vs. The State, 55 DLR 299; Abdur Rashid vs. State, 27 DLR (AD)- 1; Abdul Quddus vs. State, 43 DLR (AD) 234; State vs. Khadem Mondal, 10 BLD (AD) 228 ref.
Mr. Hasan M.S. Azim
… For the petitioner
Mrs. Sakila Rowshan DAG
. . . For the state.
Siddiqur Rahman Miah, J:
This Criminal Appeal is directed against the judgment and order dated 06.11.2007 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal No. 3, Chittagong, in Nari-O-Shishu Nirjatan Case No.177 of 2003 arising out of Fatikchari PS. Case No.6 dated 14.11.1999 corre-sponding to GR No. 140 of 1999 convicting the appellants under section 10(2) and 14 of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 (hereinafter refer as Ain) and sentencing each of them to suffer imprisonment for life.
- 2. The prosecution case, in short, is that, the deceased Hasina Akhter alias Ratna was given in marriage on 16.05.2007 with the convict-appellant Abul Bashar, that after 10/12 days of marriage, the co-accused Nos.3,4 and 5 including another convict Morium Bibi, mother of Abul Bashar, stared demanding dowry to the tune of Tk.70,000/= for arranging a Saudi Arabian visa for Abul Bashar; that the victim used to inform her father about the demand for dowry; that upon refusal by the family of the deceased Ratna to meet the demand for dowry, the two appellants Abul Bashar and his mother mounted torture on the deceased.
- 3. It is further stated that the allegation of beating and demanding dowry was taken to the local Salish where appellant in the presence of PW 1, PW 3 and PW 4 promised not to torture his wife and took her home; that in the night before the date of incident, appellants Morium Bibi and her son Abul Bashar on the excuse of delay in cooking food tortured her again on different parts of her body; that the next morning on 29.07.1999 when Ratna was coming to her father’s home, then the appellant Abul Bashar with the order of co-accused Nos.3 and 5 forcefully brought her inside and on her request for water, they poisoned her and strangled her to death after beating.
- 4. Sensing death of the victim, a boy from nearby house came to the home of her father Omar Ahmed Khondoker and informed him about the death of his daughter. He went there immediately and found the victim dead. Soon after, he along with the company of PW-3 went to Fatikchari police station and accordingly lodged the UD case No. 20 of 1999 dated 29.07.1999. Thereafter, the brother of the deceased came to know that, in fact, the convict-appellants and other co-accused killed her sister. Accused No, 4 and 5 forging signature of his father made out the said UD case No.20 of 1999 dated 29.07.1999. Stating the above, facts Ratna’s brother Abdul Halim submitted a written complaint to the Magistrate on 31.10.1999. Treating the above complaint as FIR, Fatikchari P.S Case No.6 dated 14.11.1999 u/s 10 (1)and 14 of the Nari-O-Shisu Nirjatan (Bishes Bidhan) Ain, 1995 was recorded against these two convict-appellants and three others named in the ejahar that corresponds to G.R. No 140 of 1999.
- 5. After investigation, police submitted the report being Charge sheet No. 12 dated 23.02.2000 against the 4(four) accused persons including the convict appellants and sent them up for trial for committing offence punishable under section 10(1) and 14 of the Nari-O-Shishu Nirjatan Bishesh Bidhan Ain, 1995 stating, inter alia, that the allegations against the accused persons were prima facie found to be true.
- 6. After being ready the case was transferred to the learned Nari-O-Shishu Nirjatan Daman Tribunal No. 3 Chittagong and renumbered as Nari-O-Shishu Nirjatan Case No. 177 of 2003 (previously it was numbered as Nari-O-Shishu Case No. 63 of 2000).
- 7. The learned Tribunal, thereafter, framed charge against the accused Abul Basher under section 4/10(1) of the Nari-O-Shishu Nirjatan ( Bishesh Bidhan) Ain 1995 and under section 4/10(1)/14 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain 1995 against the other accused Marium Bibi, Shahjahan and Bacchu Miah.
- 8. The trial of the case was held before the Tribunal Judge,Chittagong and in total 9 prosecution witnesses appeared before the Tribunal who were examined by the prosecution and cross-examined in part by the defence with the exception of prosecution witness No. 3 who was declared hostile.
- 9. The appellants were examined under section 342 of the Code of criminal Procedure and they denied the charges brought and the allegations made against them. The defence did not call for any witness.
- 10. From the trend of cross examination and the defence case, it appears to be a case of innocence of the accused and that there was no demand of any dowry from the wife and there was any attempt of kill the victim by the accused as alleged by the prosecution but that the victim died by taking poison.
- 11. After considering the facts circumstances and evidence of the case, the learned Judge, Nari-O-Shishu Nirjatan Tribunal convicted the accused under section 10(2) and 14 of the Ain, 1995 sentencing them to suffer rigorous imprisonment for life by the judgment and order dated 06.11.2007.
- 12. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction under section 10(2)/14 of the Nari-O-Shishu Nirjatan Bishesh Bidhan Ain, 1995, the appellants have come up with the present appeal which is opposed by the respondent state through learned Deputy Attorney General.
- 13. Mr. Hassan S.M. Azim the learned Advocate for the appellant took us to the FIR, the charge so framed, the deposition of the prosecution witnesses, impugned judgment and the material papers and documents which are available in the paper books and submits that the convict appellants are totally innocent and they have not committed the crime as alleged by the prosecution; that the learned Tribunal misinterpreted, misread and misunde-rstood the oral evidence as well as documentary evidence in the case and erred in convicting and sentencing the appellants on such misreading and misapplication of evidence; that the learned Tribunal erred in failing to note the contradictions in the depositions made by the PWs in their own depositions as well as against each other and the learned court failed to apply his judicial mind in assessing the evidence and that the impugned judgment is illegal and unwarranted by facts and circumstances of the case as such the impugned judgment is liable to be set aside.
- 14. Mrs. Sakila Rowshan, the learned Deputy Attorney General for the state, on the other hand submit that the learned Judge, Nari-O-Shishu Nirjatan Daman Bishesh Adalat No. 3 Chittagong was justified in convicting and sentencing the accused appellants Abul Basher and Marium Bibi on assessing the evidence on record. She further submits that the prosecution has proved its case against the accused by most consistent, corrobor-ative and overwhelming evidence; that the learned Judge was perfectly justified in convicting and sentencing the accused appellants on the basis of the most cogent and reliable evidence and that his judgment does not suffer from any misreading and non-reading of evidence. The learned Deputy Attorney General further submits that all the prosecution witnesses are natural, probable and competent witnesses and there is no internal points of falsehood in their evidence on any point and as such the impugned judgment calls for no interference by the court.
- 15. The only point for determination in the appeal is whether the learned Judge was justified in convicting and sentencing accused appellants Abul Basher and Marium Bibi under section 10(2)/14 of the Nari-O-Shishu Nirjatan Daman Bishesh Bidhan Ain, 1995 .
- 16. In the face of arguments advanced by the learned Advocates of the contending parties, we are now called upon to scrutinize the material evidence on record to come to a proper decision in this appeal.
- 17. P.W.1, Omer Ahmed Khondaker is the father of the victim who deposed that the inmates of the house of his son-in law informed him that his daughter died taking poison; that his son, who is the informant, was in his duty at Rubber Garden, that accused Abul Basher is also his brother’s son; that accused Sajahan is also his brother’s son and accused Bachu is his nephew; and that his son filed this case 3 three months of his after filing of his UD case.
- 18. He categorically stated in his cross examination that his son in law Abul Basher who is the accused did never demand any dowry from his daughter and thus he does not solicit his punishment.
- 19. P.W.2, Abdul Halim, is the informant of this case who deposed in his examination in chief that he heard that his sister Hachina Akter died taking poison; that he was not in the house as he served inHoludiaRabberGarden; that he does not know what was written in his case. At this stage the learned court warned this witness to say like the contents of the FIR and thereafter the learned Judge adjourned the case from 18.02.2001 to 20.05.2001. Thereafter he deposed like the contents of the FIR and this sort of attitude of the learned Judge is not desirable which indicates that the learned Judge compelled this witness to depose according to the contents of FIR.
- 20. In the cross examination, he stated that he filed the case three months after the occurrence; that he did not see the occurrence; that he heard about the occurrence but he did not hear the occurrence from any person who saw the occurrence from his own eyes. He categorically stated in his cross examination that the accused did not demand any dowery; that his father informed him that his sister died taking poison and that no salish was held at school field.
- 21. P.w. 3.Mohammad Hossain, deposed that the father of the victim, Omer Ali Khandaker informed him on 29.09.1999 at about 11/12 hour that his daughter died taking poison.
- 22. In the cross examination, he denied the defence suggestion that he told to the I.O. that the accused killing the victim poured poison into her mouth; that he did not depose to the I.O. and his statement under section 161 is concocted; that no salish was held regarding demanding of dowery by the accused and that the father or the brother of the victim did never disclose about the demanding of dowery by the accused.
- 23. P.W.4, Alkas Mia, deposed in his cross examination that he knows nothing about the occurrence.
- 24. P.W.5, Kala Miah, deposed in his cross examination that he heard that the victim died taking poison.
- 25. P.W.6, Dr. Prodip Kumar Chowdhury, deposed supporting P.M. report that the victim M Hachina died due to assault and effect of poison.
- 26. P.W.7, Dr. Aditta Kumar Roy, is a local doctor who deposed that the accused Abul Basher called him in his house on 29.07.1999 at 10.00 as his wife was ill and going there he found that his wife took poison. He categorically deposed that he came to understand by observing her symptom that she took poison for which he washed her stomach by tube mixing potash and water and thereafter he pushed 5000 CC saline and thereafter the victim died in his presence.
- 27. In the cross examination, he stated that after taking poison, Kornia became small and poison’s saint was coming from her mouth and thus he came to understand that the victim took poison and he found no injury mark inside her mouth.
- 28. P.W. 8, SI Sheikh Lutfor Rahman, was the in charge of Datmara Investigation Centre. He testified that on 29.07.1999 the father of the victim filed a written complaint to the effect that his daughter died drinking poison and on the basis of such complaint, an UD case no. 20 dated 29.07.1999 of Fatikchari P.S. was started and the investigation was entrusted on ASI Abdur Razzak who held inquest of the dead body of the victim and prepared an inquest report and sent the dead body to the morgue for holding post mortem examination.
- 29. In the meantime, the brother of the victim filed a complaint before the Magistrate,1st class who sent the complaint to the Fatikchori PS for treating the same as FIR and accordingly Fatik chori PS case No.06 dated 14.12.1999 under section 10(1)/14 of the Nari-Shishu Nirjatan Daman (Bishesh Bidhan) Ain 1995 was started and this witness was entrusted with the task of investigation of the case and getting the task of investigation, he visited the place of occurrence prepared the sketch map of the place of occurrence and also prepared Index thereof, recorded the statement of witnesses under section161 of the Code of Criminal Procedure and later on he handed over the case docket to the officer in charge.
- 30. P.W.9, ASI Abdur Razzak held the inquest report of the victim and submitted a report marked exhibit-6 and his signature thereon is marked exhibit 6/1. He categorically deposed that he found no hurt in the dead body.
- 31. In the cross examination, he deposed that he heard from local people that the victim committed suicide taking poison.
- 32. These are all the evidence produced by the prosecution.
- 33. In the instant case, the appellants were convicted under section 10(2)/14 of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidahan) Ain, 1995.
- 34. Now let us see the provision of section 10(2)/14 of the Ain which runs thus:
Òaviv 10| ‡hŠZy‡Ki Rb¨ g„Z~¨ NUv‡bv, BZ¨vw`i kvw¯ÍÐ (1) hw`†Kvb bvixi m¦vgx, m¦vgxi wcZv, gvZv, AwffveK, AvZ§xq ev m¦vgxi c‡¶ Ab¨†Kvb e¨w³†hŠZy‡Ki Rb¨ D³ bvixi g~Z¨ NUvb Zvnv nB‡j D³ m¦vgx, wcZv, gvZv, AwffveK , AvZ§xq ev e¨w³ g„Z~¨`‡Û `Ûbxq nB‡eb|
2| hw`†Kvb bvixi m¦vgx, m¦vgxi wcZv, gvZv, AwffveK, AvZ§xq ev m¦vgxi c‡¶ Ab¨†Kvb e¨w³ †hŠZy‡Ki Rb¨ D³ bvixi g„Zy¨ NUv‡bvi †Póv K‡ib Zvnv nB‡j D³ m¦vgx, wcZv, gvZv, AwffveK AvZ§xq ev e¨w³ hve¾xeb Kviv`‡Û `Ûbxq nB‡ebÓ|
Òaviv 14| AcivacÖ‡ivPbvi kvw¯ÍÐ hw` †Kvb e¨w³ GB AvB‡bi Aaxb†Kvb Aciva msNU‡bi cÖ‡ivPbv †hvMvq Ges†mB cÖ‡ivPbvi d‡j D³ Aciva msNwUZ nq, Zvnv nB‡j H Aciva msNU‡bi Rb¨ wba©vwiZ `‡Û cÖ‡ivPbvKix e¨w³ `Ûbxq nB‡ebÓ|
- 35. Here in this case charge was framed against the accused Abul Basher under section10(2) of Ain and against accused Marium Bibi ( Mother of Abul Basher), Shajahan Mia and Bachu Miah under section 4/10(1)/14 of the Ain. Only accused Abul Bashar and his mother Marium was convicted under section 10(2)/14 of the Ain. No where in the judgment as well as in the framing of charge stated which role was played by which the accused were convicted basing on the lump allegation.
Now let us see how far the prosecution has succeeded in proving the allegation against accused appellants under section 10(2) of the Ain, It is stated in this section if any person commits murder for doweryk he will be convicted under this section. First of all we see whether the allegation of dowery has been proved or not.
- 36. P.W.2, Omar Ahmed Khonder, father of the victim deposed that accused Abul basher did not demand any dowery from his daughter.
- 37. P.W.2 Abdul Halim as informant deposed in his cross examination that the accused Abul Basher did not demand any dowery at the time of marriage or later.
- 38. P.W.3 Mohammad Hossain deposed that he did not do any salish as regards the demand of dowery.
- 39. Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated. Thus we find that the alleged occurrence does not come within the ambit of section 10(2) of the Ain.
- 40. In this connection we may profitable refer the decision in the case of Osena Begum vs. The State reported in 55 DLR 299. It is held in the said decision “The Ain was promulgated to punish certain heinous offences against the children and women through special Adalat established by it. If the murder were committed for dowry, only then such Adalat would have exclusive jurisdiction to try such offence. Only sentence for such an offence under section 10(1) or section 14 of the Ain is death. No alternative sentence is prescribed . The Ain was no doubt made harsh and intended to prevent amongst others certain heinous offences committed for dowry. The motive for such offence will decide the jurisdiction of such Adalat. The moment the Adalt finds no proof of existence of such, motive of dowry for any offence within mischief of the Ain, it must take its hands off the case. In such situation only course will remain open for the Adalat to follow would be to send the case record to the Sessions Judge for trial.
- 41. Now let us see whether there will be any fruitful result if the case is sent to Sessions Judge for trial. Before sending the case to sessions Judge for trial we should see whether the main allegation against the accused appellants that the accused assaulted the victim first and then poured poison into her mouth has been proved or not.
- 42. In this case 9 PWs have been examined.
P.W.1, Omar Ahmed Khondaker, is the father of the victim. P.W.2, Abdul Halim, is the brother of the victim as well as the informant of this case. P.W.3 Mohammad Hossain, P.W.4 Alkas Miah and PW.5 Kala Miah are neighbouring witnesses. P.W.7 Dr. Aditha Kumar Dey is local doctor who attended the victim immediately after occurrence. P.W.8 is SI Sheikh Lutfor Rahman who prepared inquest report. As regards the main allegation, PW.1, father of the victim, at first informed the matter to Datmara Investigation Centre in writing that his daughter died taking poison.
- 43. P.W.2, brother of the victim, who is informant at first deposed that he heard that his sister died taking poison and later on he shifted his position by the warning of the court and again in his cross examination he stated that he did not see the occurrence but his father informed him that the victim died taking poison.
- 44. P.W.3, Mohammad Hossain, deposed that PW.1 father of the victim informed him on 29.07.1999 at 11/12 hours that his daughter died taking poison and that PW.1 also informed such information to the police ofDatmaraInvestigationCenter in writing.
- 45. P.W.4, Alkas Miah deposed that he does not know any thing about the occurrence.
P.W.5 Kala Miah deposed that he heard that the victim died taking poison.
- 46. P.W.7 Dr., Aditia Kumar Dey, the local doctor, deposed that accused Abul Basher, the husband of the victim, went to him on 29.07.1999 at 10 a.m. to bring him as his wife is ill and accordingly he went there and examined the victim and realized that the victim took poison and tried to wash her stomach and later she became weak and died in his presence.
- 47. P.W.8 SI Sheikh Lutfor Rahman stated that on the written information of PW1, father of the victim, he held surathal of the victim and found no mark of injuries in the body of the victim and he heard from the local people that the victim died taking poison.
- 48. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the victim and then poured poison into his mouth have not been proved.
- 49. In the case PW.6 Dr. Prodip Kumar Chowdhury opined and deposed that the victim died due to torture and forceful induction of poison. In this respect, are of the view that the doctor PW.6 being Dr. Prodip Kumar Chowdhury while preparing the post mortem report failed to state the age of injuries, such failure on the part of the doctor rendered the post mortem report very unreliable inasmuch as due to such failure it became very difficult to ascertain when those injuries were sustained by the victim, the same being the time of alleged occurrence. It is held in the case of Abdur Rashid vs. State reported in 27 DLR (AD)- 1” The doctor while holding the post mortem examination did not record the age of the injuries. In a case of murder, the age of injuries is an important fact to determine the approximate time of occurrence.”
- 50. The medical evidence is only corroborative in nature. It has no higher evidentiary value. As opposed to the ocular evidence of the P.W. 7 being Dr. Adittya Kumar Dey to the effect: “Avwg wfKwU‡gi gy‡L wKsev gyL Mne‡i †Kvb AvNv‡Z wPý †`wL bvB “ and also the ocular evidence of P.W.9 being A.S.I Md Abdur Razzak who prepared the inquest report to the effect that “No sign of hurt was found on the dead body”, Which essentially corroborates the evidence of P.W.7, the post-mortem report should not be considered as being very doubtful rendering itself to be unworthy of reliance for a safe conviction.
- 51. It also held in the case of Abdul Quddus vs. State, reported in 43 DLR (AD) 234. “It will not be out of place to mention that the medical evidence is only corroborative in nature. In that view, the ocular evidence of the eye-witness which substantially corroborates the major injuries on the person of the deceased must be accepted.”
- 52. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corroboration to the direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecution. It would be seen from the evidence of the doctor (P.W.6) being Dr. Prodip Kumar Chowdhury that only a carbon copy of the post-mortem report was filed, not the original one, which the P.W.6 admitted as follows: Òm¦v¶x e‡j†h cÖ`wk©Z gqbv Z`‡šÍi wi‡cv‡U©i Kve©b Kwc nB‡jI Bnv Zvi wjLvi Kve©Y KwcÓ Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out.
- 53. In view the facts and circumstances of this case, we are view that the learned Judge of the trial court below substituted “moral conviction for legal evidence” which is not allowed in law and, thus the impugned judgment and order of conviction and sentence dated 06.11.2007 is illegal and liable to be set aside. In this regard the convicts-appellants heavily rely on the decision of the Hon’ble Appellate Division as the fact of the instant case are almost similar to the fact of the case reported in the case of The State vs. Khadem Mondal, reported in 10 BLD (AD) 228. In the fact of the present case, it will be improper to substitute moral conviction for legal evidence. It may also be considered for ends of justice that the convict-appellant No. 1 has been languishing in jail since 15.11.1999 for about 11 years and the convict-appellant No. 2 is an old lady who have languishing in jail without any fault of them.
- 54. The allegation against the accused appellants is that they collusively assaulted the victim and thereafter poured poison into her mouth and thus they killed the victim.
- 55. The defence case is that the victim died taking poison.
- 56. The fundamental and basic presumption in the administration of criminal law and justice delivery system is that the accused should be presumed to be innocent till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence. In a criminal trial, the burden of proving guilt of the accused beyond all reasonable doubt always rests on the prosecution and on its failure, it can not fall back upon the accused. In a criminal case, it is for the prosecution to bring the guilt home to the accused.
- 57. Though in a wife killing case, the husband is to explain how his wife died. Here in this case, the husband the appellant No. 1 took an alibi to the effect that his wife died taking poison. though the accused appellants have not adduced any witness but his alibi has been substantiated by the evidence of PWs.
- 58. Considering all the above facts and circumst-ances and evidence of the case and in view of our finding above we find that the prosecution has totally failed to prove the case beyond reasonable doubt. So we find that the learned Judge Nari-O-Shishu Nirjataon Daman Tribunal No.3,Chittagong is not justified in convicting and sentencing the accused appellants by the impugned judgment. We therefore, find that the impugned judgment calls for our interference.
- 59. In the result, the appeal is allowed and the judgment and order of conviction and sentence dated 06.11.2007 passed by the learned Judge, Nari-o-Shishi Nirjatan Daman Bishesh Adalat No.3, Chittagong in Nari-O-Shishu Case No.177 of 2003 is set aside. The accused appellants are acquitted from the charge under section 10(2)/14 of the Nari-O-Shishu Nirjatan ( Bishesh Bidhan) Ain 1995. We direct that the accused appellant Abul Basher be set at liberty forthwith if not wanted in connection with any other case and accused appellant Marioun Bibi is discharged from her respective bail bond.
- 60. Let a copy of this judgment and order be sent to the Nari-O-Shishu Nirjatan Daman Tribunal No.3,Chittagong for compliance.
Send down the L.C.R at once.
* Criminal Revision No. 1025 of 2010