Present:
Mr. Justice Siddiqur Rahman Miah
And
Mr. Justice Md. Ataur Rahman Khan
Death Reference No. 150 of 2005
With
Criminal Appeal No.4256 of 2005
And
Jail Appeal No. 1180 of 2005
The State
-vs-
Mahabur Sheikh @ Mahabur
.. Condemned Prisoner
Mr. Khondaker Mahbub Hossain
with
Mr. Kamrul Alam Kamal
…. For the condemned prisoner
Mr. Zahirul Haque Zahir, DAG with
Mrs. Salma Rahman, AAG
… For the State
Heard on 7.10.2010, 10.10.2010
and 12.10.2010 and Judgment on 16.1.2011
Siddiqur Rahman Miah; J
The Death Reference being No. 150 of 2005 has been sent by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Narail for confirmation. The Criminal Appeal No. 4256 of 2005, Jail Appeal No. 1180 of 2005 and Death ReferenceNo.150 of 2005 arises out of the judgment and order of conviction and sentence dated 04.10.2005 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Narail in Nari-O-Shishu Nirjatan Case No.28 of 2004 convicting the accused Mahabur Sheikh @ Mahabur under section 11 (ka) Nari-O-Shishu Nirjatan Daman Ain, 2000 sentencing him thereunder to death.
2. The prosecution case, inter alia, is that the deceased Kohinur was married with accused Mahabur Sheikh and their conjugal life was continued for four years and it was ended with the diabolical murder of the victim wife. The victim wife used to reside with her husband in her conjugal life. On 23.09.2003 at about 9.00 p.m. on getting information that the accused assaulted his wife Kohinoor for demand of dowry. The informant Md. Kamal Biswas being accompanied by Anwara Begum, Akter Biswas, Rejaul Shiekh and Salam Biswas rushed to the place of occurrence, i.e. the dwelling house of the accused Mahabur Sheikh. In their presence accused Mahabur Sheikh became aggressive and started beating his wife Kohinoor despite their resistance. Thereafter the victim Kohinoor instantly died there. Further prosecution case is that the informant and his companions found the dead body of Kohinoor lying on veranda of the place of occurrence hut. On the following morning at 10.35 a.m. the informant Md. Kamal Biswas lodged the FIR with Lohagara PS upon which Lohagara PS case No.16 dated 24.09.2003 was started under section 11(ka) Nari-O-Shishu Nirjatan Daman Ain, 2000 against the accused appellant only..
3. On being entrusted with the task of investigation, SI Rampada Mondal of Lohagora police station visited the place of occurrence, prepared sketch map and index thereof; held inquest of the dead body of deceased Kohinoor which he found lying on the verandha of the dwelling hut of the accused; sent the dead body to the morgue for holding autopsy; examined the witnesses and recorded the statements under section 161 of the Code of Criminal Procedure and obtained post mortem report. Thereafter, the allegation having been found prime face proved he submitted charge sheet against the accused Mahabur Sheikh @ Mahabur under section 11(Ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 and the accused remained absconded.
4. At the trial, the charge was framed under section 11 (ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 against the accused person which was read out and explained to the accused who pleaded not guilty and demand trial.
5. The prosecution in all examined 7 witnesses including the investigating officer in support of his case but the defence examined none.
6. The defence case as it transpires from the trend of cross examination of the PWs is that he is innocent and he has been falsely implicated in this case out of suspicion and enmity.
7. The learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Narail on consideration of the evidence on record and the facts and circumstances of the case found the accused Mahabur Sheikh @ Mahabur guilty under section 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and convicted and sentenced him thereunder to death.
8. The accused appellant being aggrieved by and dissatisfied with the conviction and sentence dated 04.10.2005 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Narail in Nari-O-Shishu Nirjatan Daman Case No. 28 of 2004 have come up with present Criminal Appeal No.4256 of 2005 and Jail Appeal No. 1180 of 2005 before this court.
9. Mr. Khondaker Mahbub Hossain, along with Mr. Kamrul Alam Kamal, the learned Counsel, appeared on behalf of appellant Mahbubur sheikh @ Mahbubur and Mr. Zahirul Haque Zahir, the learned Deputy Attorney General and Mrs. Salma Rahman the learned Assistant Attorney General appeared on behalf of the State.
10. Mr. Khondaker Mahbub Hossain, the learned counsel for the appellant at the inception has taken us through the FIR, charge sheet, charge so framed, the deposition of the prosecution witnesses and the impugned judgment and the materials available in the paper book and submits that the learned trial court failed to consider the defence case and that the court below illegally convicted the condemned prisoner on suspicion. It is further submitted that the prosecution failed to prove the case against the condemned prisoner beyond all reasonable doubt; that the judgment and order of conviction and sentence is bad in law as well as on fact and that the impugned judgment and order is liable to be set aside.
11. He cited decisions in the case of Abdul Mannan @ Mona Miah vs. State reported in 58 DLR 91, Abu Taher vs. State reported in 10 MLR 282, Mukter Hossain Khan ( Md) vs. State reported in 60 DLR(AD)44, Abdul Hannan vs. State reported in 60 DLR 590, Md. Hadiuzzaman @ Abdul Hadi and others vs. The state reported in 1986 BLD AD 191,Siraj Mal and others vs. State reported in 45 DLR 688, Firoz Miah vs. state reported in 51DLR 37, Muslimuddin and others vs. The state reported in 7 BLD(AD)01, Tareque Habibullah vs. The state reported in 12 BLD 147and zahirul Alam Kamal and another vs. state reported in 1 BLC 325 in support of his contention.
12. Mr.Zahirul Haque Zahir, the learned Deputy Attorney General along with Mrs. Salma Rahman, the learned Assistant Attorney General for the state, on the other hand, submits that the prosecution has proved its case against the condemned person by the most consistent, corroborative, overwhelming and competent witnesses; that the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Narail is quite justified in convicting and sentencing the condemned person on the basis of the most cogent and reliable evidence and his judgment does not suffer from any misreading and non- reading of evidence. There is no internal points of falsehood in their evidence on any point and as such the impugned judgment calls for no interference by this court.
13. The learned Deputy Attorney General for the State cited the decisions in the case of State vs. Abdul Kader @ Kada and others reported in 13 MLR (AD)86, in the case of State vs. Kamruzzaman @ Mantu reported in 11 BLC 77 and in the case of Abdul Motleb Howlader vs. state reported in 6 BLC (AD) 01 in support of his contention.
14. The only point for determination in the Death Reference and appeals is whether the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Narail, was justified in convicting and sentencing the condemned prisoner under section 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
15. 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 in order to come to a proper decision in this Death Reference and appeals.
16. The allegation is of bride killing for the cause of dowry. the unfortunate incident alleged to have taken place in the dwelling hut of the accused husband. The informant and the witnesses as cited in the FIR are alleged to have witnessed the occurrence. The dead body of the deceased Khoinoor was found on the verandah of the p.o house by them. The case thus appears to have rested upon circumstantial evidence as well as the testimony of the witnesses as cited in he first Information Report. Of the 07 P.W.s examined by the prosecution,P.W.1, Md. Kamal Biswas is the informant, brother of the deceased Kohinoor.
17. P.W.2, Anwara begum is the mother of the deceased.
18. P.W.3 ,Akhtar Biswas is the cousin of the deceased.
19. P.W.4, Rezaul Sheikh is the cousin of the deceased.
20. P.W.5, Salam Biswas is the uncle of the deceased.
21. P.W.6, Dr. Md.Kader held autopsy of the dead body of the deceased.
22. P.W.7, S.I Rampada mondol investigated into the case and submitted charge sheet.
23. Before going into an analytical discussion about the circumstances revealed, let us first see what the P.W.s have stated on dock.
24. P.W.1 Md. Kamal Biswas, the informant brother of the deceased kohinoor Begum, has deposed in court that kohinoor was given in marriage with the accused Mahabur Sheikh 4 years ago. This P.W further deposed that he learnt that the accused assaulted his wife Kohinoor for the cause of dowry and then Kohinoor died and that is way he initiated this case, P.W.1 proved the F.I.R and his signature therein as Exhibit-1 and 1/1 respectively P.W.1 also stated his examination-in-chief that Kohinoor died at 9 p.m. in the house of her husband Mahabur. On the following morning he went there and found the dead body of Kohinoor lying on then veranda of accused’s hut. At that time accused was found absent. Then they took the dead body of Kohinoor to his own house and then the burial took place. Even at that time too the accused did not come and attend the burial ceremony.
25. In cross-examination this P.W.-1 deviating from earlier position has stated that nobody told him that the accused assaulted Kohinoor for the cause of dowry. He also stated that accused used to stay in his place of business and used to come in his house after 15 days’ interval. In-cross-examination P.W.1 has surprisingly stated that on being rebuked by the mother-in-law and sister-in-law (‘nanad’), kohinoor committed suicide. On the next breath he also stated that no ligature was found around the neck of Kohinoor when he witnessed her dead body. Surprisingly enough P.W.1 at the fag end of his cross-examination has stated that their anger upon the accused has already been subdued as the case has been mediated by the intervention of the local elites.
26. P.W.2 Anwara Begum, the mother of the deceased Kohinoor has deposed that Kohinoor Committed suicide by hanging. This P.W. also stated that she learnt that accused assaulted Kohinoor for the cause of dowry and thus her son (P.W.1) initiated this case.
27. P.W.3 Md. Akhter Biswas, a cousin of victim, has deposed that nearly one year ago at about 8 P.M. while he was in Lohagora Bazar he learnt that Kohinoor committed suicide by hanging. Thereafter at 9.P.M. he went to Place of occurrence(accused’s dwelling house)and he found the dead body of Kohinoor lying on the verandah. But he could not see as to where and with which her body was suspended by way of hanging. He did not make any query about it. He found the accused absent when he reached to the place of occurrence house. Even he found no other inmates of accused’s family at that time.
28. P.W.4 Rezaul Sheikh, the cousin of unfortunate victim, has deposed that the incident took place at about one year ago at 9.P.M. On getting information being accompanied by the mother of the deceased Kohinoor he went to the house of the accused and found the dead body of the victim deceased Kohinoor lying on the verandah of the hut owned by the accused Mahabur. The neighbors told them that there had been a ‘ganjam’ between Kohinoor and the neighbors and then Kohinoor committed suicide by hanging. But the neighbors did not disclose it to them as to how and where Kohinoor committed suicide.
29. In cross-examination, this P.W stated that they found accused Mahabur absent when they reached the P.O house. He further stated that the accused was present in the burial ceremony of Kohinoor.
30. p.W.5 Salam Biswas, the uncle of the deceased Kohinoor, has deposed that at about 01 year ago at night while he was in his shop, on getting information he rushed to the house of the accused and found the dead body of Kohinoor suspended with the branch of a mango tree situated to the eastern side of accused’s house in hanging position. He heard that Kohinoor committed suicide. This P.W has further deposed that he also found Akhter Biswas (P.W.-3) and Rezaul Sheikh (P.W.-4) who came there prior to his arrival.
31. In cross-examination P.W.5 stated that he could not say why Kohinoor committed suicide.
32. P.W.6 Doctor Md.Abdul kader, the then emergency Medical Officer, Narail Hospital has deposed that on 24.9.2003 on identification by a Police Constable no.203, Farid Ahmed, he did autopsy of the dead body of victim Kohinoor and found the following injuries:-
a. Three crescentic nail marks on the right side of the neck in the submandibular region.
b. One crescentic mark of nail of the left side of the neck in the submandibular region.
c. One abrasion on the nasal bridge ½“x 1/6 “
d. One abrasion on the right side of the back at the level of the renal angle size 1½”x ½
e. One abrasion on the lateral aspect of the right arm size 2”x ½ “. P.W.-6 further stated that he opined that in their opinion, death was due to asphyxia & shock resulting from the throttling which was anti-mortem and homicidal in nature.
33. In cross-examination this P.W.6 Dr. Md. Abdul Kader has stated that above injuries or crecentic marks of nail are not possible to be found in case of hanging by rope.
34. P.W.7 Rampada Mondal, the then S.I of Lohagara Police station, (now S.I. Kafrul Police Station, Dhaka Metropolitan Police) investigated into the case. He deposed that on 24.9.2003 on the basis of ejahar as lodged by the informant Kamal Biswas, the charge-officer, Lohagara Police Station S.I. Md. Nurul Amin recorded this case and filled up the columns of F.I.R Form. This P.W. as he is acquainted with the hand writing and signature of said Nurul Amin, proved the F.I.R” Form and signature of the recording officer as Exhibit 3, 3/1 respectively. On being entrusted with the task of investigation, he visited the place of occurrence, prepared sketch map and index thereon ( exhibit 4 and 5). recorded statements of the witnesses under section 161 of the Code of Criminal Procedure; held inquest of the dead body of Kohinoor which he found lying on the verandah of the dwelling hut of accused Mahabur; sent the dead body to the morgue for holding autopsy. He procured the postmortem report. This PW further stated that he found accused Mahabur Sheikh and other inmates of the house absent when he visited the place of occurrence house. He seized the wearing apparels of the deceased by preparing seizure list exhibit -6. On completion of the investigation on having found the allegation prima facie proved he submitted charge sheet being no. 184 dated 17.12.2003 against the accused Mahabur Sheikh under section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
35. In cross examination, this PW.7 reiterated that he found the accused and his relatives absent when he held inquest of the dead body of the deceased Kohinoor, PW – 7 denied the suggestion put to him by the defence that the victim committed suicide and she was not done to death for the cause of dowry.
36. Above is all about the evidence oral and documentary adduced by the prosecution in this case to prove the charge levelled against the accused person under section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
37. Fundamental principles of Criminal jurisprudence is that onus of proving everything essential to establishment of charge against accused lies upon prosecution which must prove charge substantially as laid down i.e. to prove to hilt beyond all reasonable doubt on strength of clear, cogent, credible and unimpeachable evidence. Proof of charge must depend upon judicial evaluation of totality of evidence, oral and circumstances and not by an isolated scrutiny of evidence. Prosecution version is, also required to be judged taking into account the overall circumstances of case with a practical, pragmatic and reasonable approach in the appreciation of evidence. It is always to be remembered that the graver the charge the greater is the standard of proof required.
The doctrine of presumption of innocence is always in favour of accused. The accused person must be presumed to be innocent until the guilty is proved by cogent and credible evidence.
38. A judge does not preside over a Criminal trial merely to see that no innocent person is punished . A judge also presides to see that a guilty man does not escape. Both are public duties. A judge is to shift grain out of chaff. Therefore, he, cannot afford any favour other than truth and only truth.
39. In the touchstone of above stated principles of criminal Jurisprudence, the points formulated are being addressed.
40. Convict- appellant stood convicted for the offence under section 11 (ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
41. It is true that the death of a human being has actually taken place. Court is to see whether the death has been caused by or in consequence of the act of the accused Mahabur Sheikh @ Mahabur.
42. Mr. Khondaker Mahbuib Hossain, the learned counsel for the appellant submits that the informant has not supported as what has been narrated in the FIR.
43. PWs 2 to 5 have not supported to have witnessed the alleged fact for assaulting the victim by the accused; that the testimony of PWs as to cause of death of the unfortunate deceased is inconsistent with the post mortem report;that the alibi taken by the defence has been proved; and that since the prosecution case and defence case are equally probable, the benefit of such equal probability goes in favour of the accused.
44. In addition to the above argument, the learned counsel also submitted that since the informant has compromised the accusation, the accused may have refuge to the mercy of the court though he frankly admitted too that the offence alleged is not compoundable one.
45. Now the point for determination is whether the death of victim homicidal or suicidal.
46. However, inlimine, let us see the cause of death of the deceased. According to the doctor PW-6 Dr. Kader who held autopsy of the dead body the following injuries were found on the person of the deceased.
47. Three abrasions respectively on the nasal bridge, back of the legal of the renal angle and lateral aspect of the right arm.
48. Also four crescentic nail marks were found in the submandibular region on both sides of victim’s neck. According to him death was due to asphyxia and shock resulting from throttling which was ante-mortem and homicidal in nature.
49. We find from the medical Jurisprudence that firm pressure of the fingers upon the front of the neck causes compression of the neck. One hand or both hands may be used. This form of strangulation is called manual strangulation or throttling. The Medical Jurisprudence also says that in cases of manual strangulation or throttling, compression of the neck is caused by firm pressure of the fingers upon the front of the neck; the marks on the neck include abrasions and bruises. Bruises or echymosis are produced by pressure of the tips or pads of the fingers. Additionally, crescentic marks, abrasions made by the finger nails of the assailant will be found over the front of the neck, if the finger tips have been pressed deeply into the soft tissues of the neck. (Medical Jurisprudence .C.C. Mallik Edition; second published October 1984).
50. In view of above medico- legal features coupled with the injuries found on the neck and person of the victim We come to an underling conclusion that the unfortunate Khinoor was done to death by “ manual strangulation or throttling “ by firm pressure of the fingers upon the front of her neck. Considering the injuries found on the neck and on the person of the deceased it can also be irresistibly held that the intention of the perpetrator of the Criminal act was to cause her death.
51. Now let us have a look to the probability of the plea that the victim committed suicide by hanging. In case of suicidal hanging the body ought to have been found suspended with special reference to the place of occurrence, its surroundings, point of suspension. Ligature material might also be found. Besides, in case of suicidal hanging ordinarily, there should not be any mark of injury or any sign of struggle on the person of the victim.
52. But in the case in our hand, we see that the doctor who held autopsy of the dead body of the victim found abrasions on the person of the deceased in addition to the crescentic marks of nail on the front side of her neck. P.W. 7 the investigating officer on the following morning visited the P.O. house and found the dead body of the deceased lying on the verandah of the dwelling hut of the accused.
53. P.Ws. 1-5, according to narration made in the First Information Report, on getting information that the accused assaulted his wife Kohinoor rushed to the P.0. house at 9 p.m. And they witnessed there the accused Mahabur Sheikh beating severely the victim. But while deposing in court none of them supported to have witnessed the alleged fact of assaulting the victim.
54. But of them, PW.3 Md. Akhter Biswas, PW.4 Rezaul Sheikh, the cousins of the deceased admitted to have rushed to the place of occurrence house at the relevant time and of them PWs.3 and 4 have stated to have found the dead body of the deceased Kohinoor lying on the varandah of the place of occurrence hut of the accused. PW.5 made a different version. According to him coming to the place of occurrence at the relevant time he found the dead body of Kohinoor suspended with the branch of a mango tree situated to the eastern side of accused’s house in hanging position. He heard that Kohinoor committed suicide. This PW has further deposed that he also found Akhter Biswas (PW.3) and Rezaul Sheikh (PW.4) in the place of occurrence who came there prior to his arrival. Had it been so, PWs 3 and 4 obviously would not have found the dead body of the deceased lying on the verandah of the place of occurrence. Thus the version of Pw 5 Salam Biswas as to seeing the dead body of Kohinoor suspended with the branch of a mango tree appears to be down right false. Though this PW has proved his going to the place of occurrence house at the relevant time on getting information.
55. The accused husband and other inmates were fond absent in the P.O. house when the PWs 3, 4,and 5 on getting information came there.
56. PWs 1,2,3 and 4 have tried to establish that there has been a quarrel between Kohinoor and a neighbor and thus owing to undesirable behavior of the neighbor and also on being rebuked by the mother in law she committed suicide. Probability of this story ultimately has been turned into a big zero. It is not believable at all that simply a quarrel with a neighbour prompted the victim to commit suicide. Thus the defence plea that the victim wife of the accused committed suicide has been turned into a total falsity.
57. Now the question comes, who committed the diabolical crime? Thus medico legal evidence has unequivocally proved that the death of the unfortunate victim wife of the accused meets with his homicidal in nature. It is not denied that the deceased died in her conjugal home and her dead body was found in the dwelling hut of the accused. In our criminal justice delivery system, defense is to prove nothing and an accused is said to be favourable child of law. But in a case of wife killing primarily the accused husband is obliged to explain how his wife died particularly when it happens during staying of the wife with her husband in the same hut.
58. Defence adopted the plea of alibi that the accused was not in home at the time of incident and he was in Gopalgonj. The plea of alibi is only a Rule of evidence recognized in section 11 of the evidence Act. In a bride killing case plea of alibi has to be proved by the defence.
59. PWs have admitted that the accused had timber trade PW.2Anwara begum, the mother of the deceased, stated that accused’s place of business is about 03 miles away from his house i.e. place of occurrence PW.5 Salam Biswas stated that he could not say since when the accused remained absent from the place of occurrence house.
60. According to the PWs 1,3 and 4, they found the accused and his inmates absent when they come in the place of occurrence house and found the deceased Kohinoor lying on the verandah thereof. It indicates that the accused immediate after committing the crime fled away and since then remained absconded for long 5 months and 20 days till he surrendered before the tribunal. This fact is by itself a confirmatory and incriminating circumstance of the guilty conscience of the accused and lends weight to other circumstance to connect him with the commission of the alleged killing of his wife.
61. Even the accused according to PW.1, the informant, did not attend the burialceremony of the deceased. why? if actually the accused had no guilty mind he would attend his wife’s burial ceremony. Such unusual conduct, in other words, adequately points his culpability. The mere fact that accused ‘s place of business is about 03 miles away from the P.O. house in absence of cogent evidence ipse fact does not indicate conclusively that the accused had not been in the house at the relevant time i.e. at 9.00 p.m. on the date of occurrence. There are no evidence or minimum circumstances in support of the alibi. Rather it has become untrue and improbable and thus it took fall down.
62. PW.1Md. Kamal Biswas the informant brother of the deceased Kohinoor in his cross examination has stated that their anger to the accused has already been subdued as the case has been settled down or compromised by the intervention of the local elites, firstly, who is he to make compromise an offence like murder with the accused party.
63. Secondly, being informant he just lodged the FIR to set the machinery on motion and during trial, his duty is to come on dock to depose as witness only. The prosecution is not entirely rests upon him or the FIR laid by him. The victim of the crime was Kohinoor who is now above all the earthly well and woe and the crime committed is, in fact, a crime against the state. The informant the brother of the deceased is nobody to make any compromise. It is the state who is obliged to deal with the prosecution.
64. The learned advocate for the appellant during argument also stressed that since the matter has been mediated and compromise between the parties, the accused may have refuse of the kind mercy of the court.
65. In our demoralized society, the so called social headman having domineering influence over the helpless poverty stricken group of people, in other words, in the name of compromising the accusation always prefer to extend their unethical favor to the author of a crime even like murder, have been obstructing the natural course of Justice. As a result the relatives of the victim of the crime are compelled to make chaotic and obliging version in court.
66. In the case in our hand too we must say that P.Ws.1-5 have made a vicious move to hide the truth just to provide a premium to the accused. But the offence of murder is not compoundable. A court of law cannot be party to the compromise effected outside court between on the informant and the accused and thereby it cannot provide mercy to the author of the crime like murder taking the fact of subsequent compromise into consideration. This is not court’s function. The court of law acts and administers Justice only in accordance with law. Thus, once a crime appears to have been committed by the accused there can be no room to brand the accused ‘not guilty’- merely for the reason of a subsequent compromise.
67. The version of the informant P.W.1 that their anger has been subdued as there had been a subsequent compromise over the accusation by the intervention of the local headmen, in other words, lends and adds further assurance to other circumstances as to complicity of the accused with the commission of the crime. It is thus unerringly and beyond reasonable doubt found that nobody but the accused was the author of the crime who for the cause of dowry throttled his wife to death.
68. In course of argument it is frankly admitted by the learned defence counsel that though the defence could not project any satisfactory explanation as to victim wife’s death, benefit of doubt revealed as to complicity of the accused with the commission of the crime goes in his favour. Yes, on accused is entitled to the benefit of doubt. But the doubt must not be a faint one. The doubt must be reasonable to such a degree which prompts a reasonable and prudent man to infer a hypothesis compatible to the innocence of the accused.
69. In a society pregnant of numerous immoralities, erosion of values it is no difficulty to procure and produce false eye witnesses, but it is indeed very difficult to produce circumstantial evidence of convincing character. Thus, inevitably circumstantial evidence having consistent link is more convincing and reliable than evidence of witnesses.
70. It is an old adage that a person may tell a lie but circumstances must not tell a lie. In a case circumstantial evidence when the accused offers a plea or explanation and that plea or explanation is found untrue, it offers an additional link in the chain of circumstances to complete the chain. In a bride killing case the husband is primarily obliged to explain the reasons of his wife’s death. It is proved that the unfortunate wife of the accused died due to asphyxia as a result of throttling. On contrary, defence failed to establish that she committed suicide by hanging.
71. Plea of staying in the place of business at the relevant time has not been proved by any evidence. According to PW-2, Amena Begum, the mother of the deceased, accused’s place of business is about 03 miles away from the P.O. house where the accused along with her victim wife used to reside. The incident took place at 9.00 P.M. in the dwelling house of the accused which remains undisputed. In these circumstances, in absence of any satisfactory explanation the finger points to the guilt of the accused husband.
72. According to the medico legal evidence it has been conclusively proved that the deceased Kohinoor was homicidally throttled to death. Thus the PWs appear to have suppressed the truth by saying improbable story of suicide owing to quarrel with a neighbor with a motive to serve the purpose of the defence and in the process of hiding truth deliberately, they have made a combated endeavor to brand the death of the deceased as ‘suicide’ by hanging. But the attempt ultimately becomes in vain. The defence that the deceased Kohinoor committed suicide by hanging thus falls down.
73. After initiating FIR the informant is nobody excepting a mere witness. The narration in the FIR is not the first and last word, the truth is unfolded only in trial. The inconsistency in testimony when occurs due to deliberate suppression of fact favoring the accused only for the reason of compromise by the informant with the accused party does not outright tarnish the prosecution case.
74. In the present case P.W.1 Kamal Biswas the informant brother lodged First Information Report with the concerned police Station on the following morning i.e. without any delay. But surprisingly, in court, he has not in to-to supported what he narrated in the FIR. The reason is, according to him, subsequent ‘Compromise” with the accused by the intervention of the so called local headmen.
75. It is to be noted too that even the mother (P.W.2) of the deceased forgetting the pain of losing her daughter Kohinoor deliberately stated that her daughter committed suicide. But they, this court thinks, have failed to hush up the truth in any manner. Besides deviation by the informant from what has been narrated in the First Information Report for the reason of subsequent ‘compromise’ itself shall not tarnish the entire prosecution. In this regard the following observation as made by this Court in the case of Khorshed (Md) alias Khorshed Vs State reported in 51 DLR 317 deserves to be mentioned here-
“First information report is not substantive evidence. It can be used to corroborate or contradict the maker thereof When the FIR is lodged within minimum possible time, such FIR story should not be disbelieved only because of any such result on the part of the informant.”
76. In the case before us we have already got that for the reason of ‘compromise’ the informant and other PWs have opted to save the accused by deliberately hiding the truth. PWs 1 to 5 including the informant PW.1 have deliberately testified a different story favourable to defence as to cause of death of the unfortunate victim. Thus they cannot be expected to disclose the detail story of ‘demand of joutak’. The motive of the murderous episode in court. Besides, demand of dowry is an event which generally takes place in absence of eye witnesses. No outsider and the near relative of the wife are expected to have direct knowledge about it. Normally such unethical demand is raised in the conjugal home of the wife.
77. Despite all these situations PW.1 the informant has stated in his examination in chief that the accused assaulted his wife Kohinoor for the demand of dowry as a result of which she died and this is why he initiated this case. This version remained totally unshaken and even has not been denied in his cross examination. PW.2 Amena Begum, the mother of the deceased also corroborated that the accused assaulted Kohinoor for the cause of dowry and her son PW.1, the informant, initiated this case. The above version also remained un-impeached in her cross examination. It is to be noted that the object of cross examination is to impeach and dislodge what has been deposed in examination in chief and to make this defence case probable to the reasonable degree. But in this case, defence appears to have failed even to put suggestion that the fact of raising demand of dowry for the reason of which the accused assaulted his wife victim. perhaps for the reasons of hiding the truth in part by the PWs 1 to 5 by making obliging and chaotic version in court. Thus the above testimony of PW 1 and PW.2 coupled with the other circumstances inevitably direct us to the legitimate inference that the victim was done to death in her conjugal home and the motive was nothing but lust for dowry. It is also reveals that the informant, brother of the deceased Kohinoor, however proved to have lodged the FIR against the accused on allegation of causing his wife’s death by assaulting her for the cause of dowry. Victim’s mother PW.2 has corroborated it. Defence as it appears, on contrary, failed to dislodge this fact to in any manner.
78. The accused Mahabur Sheikh remained absconded for long 5 months and 20 days from the inception of the case. No explanation was given defence side. Absconsion immediately after the commission of the crime for long period of time is considered to be a confirmatory and incriminating circumstances which adequately corroborates that the accused was the assailant. This view finds support for the decision of Pakistan Supreme court in the case Gul Hassaan and another vs. the state as reported in PLD 1969 SC 89. Failure to explain reason for absconding after occurrence favours prosecution . In this regard, it has been observed by the Hon’ble High court Division in the case of Wasim Mia and others vs. The state reported in BCR 24 HCD 392 as below, “Act of abscondance is a relevant piece of evidence to be considered along with other evidence and it can be held as a determining link which admits of no other reasonable hypothesis than that of guilt of the accused appellant.
79. The PWs. 1 to 5, as has already been said, have not supported to have witnessed the incident and of them PW.1,2,3 and 4 just coming to the P.O. house found the dead body of the deceased and they also found the accused and other inmates absent there. But merely for this reason it cannot be said that a reasonable doubt has been created in this case, particularly in presence of other cogent and convincing circumstances as already discussed above.
80. The Chain of consistent circumstances inevitably directs us to make legitimate and valid inference as to complicity of the accused with the commission of the crime. Since the attempt of PWs 1 to 5 favoring the accused to save him form criminal liability by making chaotic version as to cause of victim’ death straight way falls down on the face the medico legal evidence. We do not find any reasonable degree of doubt which can destroy the prosecution.
81. Besides, merely for the reason that the informant himself has not supported in toto what he narrated in the FIR, course of justice cannot be allowed to be defeated particularly when it is proved how and where the victim meet her death, to whom the law and circumstances point finger as the perpetrator of the crime. On the concept of the proof beyond reasonable doubt this Division in the case of Awal Fakir (Md) vs. The State as reported in 9MLR 297 observed as below:
82. Proof of reasonable doubt must commensurate with the nature of the offence. Proof beyond reasonable doubt shall not mean proof beyond the shadow of doubt, Benefit of doubt to an accused would be available provided there is supporting evidence on record. For creating or granting benefit of doubt will be such as may lead to such doubt but it is always to be rememberd that there should not be exaggerated devotion to the Rule of benefit of doubt at the expense of social defence, and course of justice cannot be allowed to be defeated on the concept of the Rule of benefit of doubt.
83. It remains undisputed that the unfortunate Kohinoor died in her husband’s dwelling hut and her dead body was found lying on the verandah thereof. PWs 1, 2 and 4 do not claim to have witnessed the assault on the victim by the accused as alleged in the FIR. But they corroborated each other to have found the dead body of the deceased Kohinoor on the verandah of accused’s dwelling hut when they went there after commission of the crime and thus naturally they found the accused and his other inmates absent in the house. In this circumstances initial burden thus lies upon the accused husband to explain his wife’s death otherwise law will finger to him for the murderous act.
84. Because it is now well settled that in case of killing bride in husband’s house, a heavy onus lies upon husband to account for the death of wife and husband is obliged to explain satisfactorily as to how his wife met her death in his house and in the absence of any explanation coming from husband, the irresistible presumption is that it is the husband who is the perpetrator of the crime.
85. This view finds support from the observation of our Hon’ble Apex curt as made in the case of The State represented by the solicitor to the government of the people’s Republic of Bangladesh vs. Md. Shafiqul islam @ Rafique and another reported in 43 DLR (AD) 92 which is as below-
“Where it is proved that the wife died of assault in the house of her husband, there would be strong suspicion against the husband that at his hands the wife died. To make the husband liable the minimum fact that must be brought on record, either by direct or circumstantial evidence is that he was in the house at the relevant time”.
86. In the case in our hand, we have already got strong and consistent circumstantial evidence which irresistible point to the guilt of the accused and on contrary the accused failed to prove the plea of ‘alibi’ as well as to explain his wife’s death. Rather it appears that instead of explaining it the accused has adopted the mechanism of ‘compromise’ with the informant party by the intervention of local headmen and tried to establish the death of his wife as suicide by influencing the PWs for making obliging statement in court. Considering the entire circumstances revealed coupled with the testimony of PWs 1 to 5 so far they made despite their deliberate attempt to hide the truth in part. We find no substance in the argument as has been advanced by the learned defence advocate that the prosecution suffers from reasonable doubt.
87. At the fag end we are thus constrained to decide that the circumstances revealed on extensive analysis have consistently completed the chain which irresistibly leads us to the conclusion that it was nobody but the accused Mahabur Sheikh was the assailant who killed his wife Kohinoor and he did the murderous act for the lust of dowry. On broad analysis as made above the circumstances and evidence revealed may be categorized as below.
88. Victim Kohinoor was throttled to death. She was done the death for the cause of dowry. Victim Kohinoor was murdered in her conjugal home. The accused Mahabur Sheikh remained absconded for long 5 months and 20 days from the inception of the heinous crime. The plea of ‘alibi’ has been turned into total falsity and thus it adds assurance to other circumstances as a determining link as to complicity of the accused with the commission of crime. The accused failed to explain how his wife Kohinoor died in his dwelling hut. According to PW.1 the informant their anger upon the accused has been subdued due to a subsequent ‘compromise’ of the cause by the intervention of the local headmen. Such compromise is considered as another confirmatory link to the chain of circumstances. Owing to such ‘compromise’ the PWs 1 to 5 have made a vicious move to hide the fact that they witnessed the accused severely beating his wife Kohinoor when they on getting information came to the P.O. house. The PWs 1 to 5 have disclosed half truth. The attempt of PWs 1 to 5 to brand the death of the deceased as suicide by handing has been abruptly turned into falsehood.
89. The cumulative effect and probative force of the guilt-pointing circumstances as revealed in the present case is of such nature that we conclude not that the accused Mahabur Sheikh may be guilty but that he is guilty. On rational analysis and deductions as made above we come to decision that it is impossible to escape the conclusion that the circumstantial testimony as adduced in incompatible with the guilelessness of the accused Mahabur Sheikh.
90. From whatever angle we view the above circumstances and fact, the conclusion is inescapable that none but the accused husband Mahabur Sheikh committed the dreadful crime for the lust of dowry. Thus no hesitation to say that the prosecution has been able to prove the accusation as brought against the accused mahabur Sheikh.
91. Concatenation of incriminating facts coupled with prolonged absconsion of the accused and failure on his part to set up any facts which may cast reasonable doubt over the prosecution suffice to prove the fact of raising demand of dowry by the accused and the complicity of accused Mahabur Sheikh with the murder of unfortunate Kohinoor Begum in her conjugal home at 9.00 P.M. and on the date and thus he is found guilty of offence punishable under section 11 (ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
92. This brings us to a legal aspect of the matter. convict- appellant stood charged and convicted for offence of section 11 (ka) of the Ain of 2000. Section 11 (ka) enjoins that if the husband of a women or the father, mother, guardian, relation or any other person on behalf of the husband for dowry cause death to a woman or ventures to cause death or causes hurt or have a try to cause hurt that husband, father, mother, guardian, relation or the person (a) shall stand sentenced to death for causing death or shall stand sentenced to imprisonment for life for mounting endeavour to cause death and in both the counts he shall be, also, liable to pay fine, and (b) shall be sentenced to imprisonment for life causing hurt or be sentenced to rigorous imprisonment for a period not more than 14 (fourteen) years and less than 5 (five) years for striving to cause hurt and in both counts shall be liable to fine.
93. In order to attract section 11 (ka) it is to be proved that death was caused in view of demand of dowry put forward from the side of husband or father, mother, guardian, or relation of the husband or any person for and on behalf of husband.
94. From circumstantial evidence it had come to light that convict-appellant had caused the death of deceased and a clear case of murder had been brought home to the door of convict-appellant.
95. This takes us to a legal debate of fundamental character, which is,
- Whether the convict-appellant can be graced with a verdict of acquittal when chare of section 11(ka) of the Ain of 2000 could not be pressed against him.
- When a clear case of murder has been established by circumstantial and medical evidence against him whether the convict-appellant can be convicted for the offence of murder punishable under section 302 of the Penal Code.
- Whether the case is required to be sent back to Tribunal or Court of sessions for fresh trial.
96. Section 25 of The Ain of 2000 postulates that Tribunal defined section 2 (Gha) shall be treated as Court of Sessions and Tribunal shall be able to exercise all powers of Sessions Court in holding trial of an offence.
97. Section 26 of The Ain 2000 enshrines that Tribunal so constituted shall be recorded as Nari-o-Shishu NirjatanDamanTribunal and shall be constituted with one Judge and Judge of Tribunal shall be appointed from amongst District and Sessions Judge to the Government, if necessary, shall appoint any District and Sessions Judge as Tribunal Judge in addition to his charge. Section 20 further enjoins that under the section Additional District and Sessions Judge shall, Also, stand included as District and Sessions Judge.
98. From the above it becomes manifestly clear that a Tribunal trying a case under the Ain of 2000 is, also, a Court of District and Sessions Judge. When a Judge sits in a Tribunal or Special Tribunal Case holding trial of an offence under a Statute or Special Statute is a Tribunal or Special Tribunal and a Judge when sits in Sessions Case trying an offence punishable under Penal sections of Penal code sits as Sessions Judge.
99. The case is hand, although, tried by a Tribunal constituted under The Ain of 2000 that Tribunal was, also, the court of Sessions. In the Judgment, learned Judge was described as district and Sessions Judge, Narail as well as Nari-o Shishu Nirjatan Daman Bishesh Adalat, Narail. Judgment demonstrates that learned District and Sessions Judge has been, also, exercising the power and Jurisdiction of the Nari_o-Shsihu Nirjatan Daman Tribunal. Fate of the convict appellant and result of the case would have been the same whether it would have been tried either as a Nari-O-Shishu case by the tribunal or as a sessions case by learned Sessions Judge and if section 11 (ka) of the Ain of 2000 was not attracted in respect of convict appellant the offence of section 302 the Penal Code could be very much pressed into service against the convict appellant, and he could be conveniently tried and convicted for offence of section 302 of the Penal Code.
100. As regard remand of the case, we may profitably refer the decision in the case of Asiman Begum vs state reported in 51 DLR(AD)18 where in it has been decided that the remand order for trial of the case as a Sessions case in the particular circumstances of the case will be a mere formality because Nari-O-Shishu Case no. 2 of 1996, although, tried under Bishes Bidhan Ain, 1995 by a Bishesh Adalat, the presiding officer was no other than the Sessions Judge himself and, as such, it was unlikely that the result would be anything different if the case was tried by him as a Sessions case. Appellate Division, thus sent the appealto High Court Division to consider the case on merit and to pass whatever order or orders it might think appropriate in the interest of justice.
101. In State vs Abul Kalam, 5 BLC 230 one Abul Kalam stood convicted for offence of section 10(1) of The Ain of 1995 for murder of his wife for dowry by learned Sessions Judge and Special Tribunal No. 1, Noakhali. Consequential sentence was death. Condemned-prisoner preferred Jail appeal and, also, regular Criminal appeal before High Court Division. There had been, also, Death Reference. A Division Bench of High Court Division heard Death Reference, Jail Appeal and Criminal Appeal together and disposed of those by a common Judgment . High Court Division found that there had not been cogent evidence as to committing murder for dowry and no evidence had been led as to the real cause of killing of wife by husband and held that the case did not come under section 10(1) of The Ain of 1995 and the case comes under section 302 of The penal Code. The High court Division further held that Sessions Judge, in fact, was the Special Tribunal no. 1 who tried the case and for no fault of the accused the case had been tried as Special Tribunal case. High Court Division instead of sending the case back for fresh trial under section 302 of The Penal Code by learned Sessions Judge disposed of the appeal. High Court Division altered conviction from section 10(1) of The Ain, 1995 to one under section 302 of Penal Code. Sentence of death was altered to one of imprisonment for life. The High Court Division in rendering decision took into account Asiman Begum vs State (Supra).
102. In the case of Shibu Pada Acharjee vs State reported in 56 DLR 285, accused-appellant was convicted for offence of section 4(c) of The Ordinance of 1983 for commission of rape upon victim Ratna Rani but ingredients of section 4(c) of The Ordinance of 1983 could not be brought home to accused-appellant. In the case it had been laid down:
To take the prosecution out of Court on a question of technicality, will be a travesity of Justice and technicality must bend to cause of Justice inasmuch as ends of law is Justice.”
Accused –appellant can be fastened for offence of section 376 of the penal Code and conviction under section 4(c) of The Ordinance of 1983 can be altered to one of section 376 of The Penal Code.
103. In the said case conviction under section 4(c) of The Ordinance of 1983 was altered to one of section 376 of the Penal Code.
104. In the event of sending the case either to Tribunal or Court of Sessions for fresh trial proceeding would be protracted which cannot be allowed in the interest of true dispensation of criminal Justice.
105. Since offence of murder punishable under section 302 of Penal Code was carried to the door of convict- appellant he can be very much convicted for offence of section 302 of the Penal Code and as such we convert the offence of section 11(ka) of the Ain of 2000 to offence of section 302 of penal Code. Convict-appellant, thus stands convicted for offence of section 302 of the Code.
106. Legal debate stands solved in the following terms and language:
- Convict-appellant Mahabur Sheikh @ Mahabur cannot be graced with a verdict of acquittal.
- Convict- appellant can be convicted for the offence punishable under section 302 of the penal Code.
iii. Case is not required to be sent either to Tribunal or Court of Sessions for fresh trial.
107. What sentence is to be imposed upon convict- appellant- death or imprisonment for life?
108. Sentencing discretion on the part of a Judge is the most difficult task to perform. There is no system or procedure in the Criminal Justice administration method or Rule to exercise such discretion. In sentencing process, two important factors come out which shall shape appropriate sentence (i) Aggravating factor, and (ii) Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that justice has the satisfaction that justice has been done and court responded to the society’s cry for justice. Under section 302 of The Code, though, a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice.
109. Convict-appellant is aged about 45 years when he was examined under section 342 of the Code of Criminal Procedure. Record indicates that convict-appellant is not a harden criminal and he cannot be at all characterized to be a menace to the society. Taking an account of aggravating and mitigation circumstances, we are of this considered view that ends of Justice will be met if death sentence is altered to one of imprisonment for life. Convict-appellant thus, stands sentenced to imprisonment for life. Convict-appellant, also, is to pay a fine of taka 2,000/= and in default of payment of fine to suffer rigorous imprisonment for 3(three) months more.
110. On the premises of the foregoing discussion, the following orders and passed.
- Death Reference No. 150 of 2005 is rejected.
- Criminal Appeal No.4256 of 2005 and Jail Appeal No. 1180 of 2005 stand dismissed with modification of conviction and sentence. Judgment of conviction and sentence dated 04.10.2005 passed by Nari-o-Shishu Nirjatan Daman Tribunal, Narail in Nari-o-Shishu Case No. 28 of 2004 is modified in the epithet that convict-appellant Mahabur Sheikh @ Mahabur is found guilty of the offence of section 302 of Penal Code and not for an offence of section 11(ka) of Nari-o-Shishu Nirjatan Daman Ain,2000 and conviction for offence of section 11(ka) of the Ain of 2000 is altered to one of section 302 of the Penal Code and death sentence is altered to one of sentence of imprisonment for life and he is to pay a fine of taka 2000/= and in default of payment of fine to undergo rigorous imprisonment for 3 ( three) months more.
Lower Court record be sent down as immediate as possible.
Md. Ataur Rahman Khan, J:
I agree.