Appellate Division Cases
(Criminal)
PARTIES
Malek Gharami………………. Petitioner
-Vs-
The State…………………….. Respondent
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Amirul Kabir Chowdhury J
Md. Jovnul Abedin J
Judgment Dated: 19th March 2007
The Penal Code,Section, 302/34
Informant Md. Wahid Ali Bapari’s daughter Tanjila Khatun aged about 25 years was married to Malek Gharami and out of that marriage two issues were born and one of them died, that informant’s daughter occasionally used to be tortured by Malek Gharami and others and that in the night following 1st of Falgoon. (corresponding to 13.2.1995) informant’s daughter was tortured and lateron was killed by strangulation and thereafter the dead body was thrown in the ‘Khal’ by the side of the house of the accused person. ………………………………(2)
In the background of the defence of the petitioner, that the rope using which the deceased, as claimed by the petitioner, hanged herself was not found by the investigating officer by the side of the dead body nor the instrument, as stated by the petitioner, used for cutting the rope for bringing down the dead body was found by the Investigating Officer. It may be mentioned the convict did not produce those materials. The High Court Division considered the fact of abseondence of the petitioner as one of the element in drawing the conclusion that the petitioner was responsible for causing death of his wife. It is true, as submitted by the learned Advocate for the petitioner, that mere abseondence can not be the basis for arriving at a conclusion that the person in abseondence was responsible for causing the incident i.e. committed an offence like the instant one causing death of petitioner’s wife. But in the facts and circumstances of the instant case we are of the view abscondance of the petitioner can very much be taken into consideration in arriving at the conclusion as to responsibility of the petitioner in causing death of his wife ………………………….(7)
Khondoker Mahbub Hossain, Senior Advocate, instructed by Mr. Syed Mahbubar Rahman, Advocate-on-record …………….For the Petitioner
Respondent …………………………….Not represented
Criminal Petition For Leave To Appeal No.167 of 2004.
(From the Judgment and Order dated April 19, 2003 passed by the High Court Division
in Criminal Appeal No.901 of 1998)
JUDGMENT
Md Ruhul Amin J : This petition for leave to appeal is against the judgment
dated April 19, 2003 of a Division Bench of the High Court Division in Criminal
Appeal No.901 of 1998 dismissing the same. The said appeal was filed against the judgment and order dated April 2, 1998 of the Court of Additional Sessions Judge, Madaripur in Session Case No. 10 of 1996 convicting the petitioner Malek Gharami under Section 302 of the Penal Code and sentencing him to suffer imprisonment for life and also to a fine of Tk.5,000/- in’default to suffer rigorous imprisonment for one year more. The learned Additional Sessions Judge by the same judgment acquitted the accused by name, Lai Miah alias Rangu Gharami of the charge levelled under section 302 of
the Penal Code.
2. Prosecution case in short, was that informant Md. Wahid Ali Bapari’s daughter Tanjila Khatun aged about 25 years was married to Malek Gharami and out of that marriage two issues were bom and one of them died, that informant’s daughter occasionally used to be tortured by Malek Gharami and others and that in the night following 1st of Falgoon (corresponding to 13.2.1995) informant’s daughter was tortured and lateron was killed by
strangulation and thereafter the dead body was thrown in the ‘Khal’ by the side of the
house of the accused person, that informant was informed by his another son-inlaw,
namely Harun, that the dead body of informant’s daughter was found in the ‘khal’ by the side of the house of the accused person i.e. husband of the deceased and thereupon the informant went there and found the dead body of his daughter in the ‘Khal’, that the informant noticed injuries in different parts of the body of his daughter and of the view that his daughter had been killed, that informant went to his son-in-law Malek Gharami’s house and found that the inmates of the house taking almost all their belongings, ncluding cow, had left the house, that the villagers assembled at the place where the dead body of the informant’s daughter was found.
3. Over the said incident the informant lodged the FIR. On completion of investigation
police submitted charge-sheet against Malek Gharami and Lai Miah alias Rangu Gharami under section 302/34 of the Penal Code. In due course the records were sent to the Court of Sessions and there Session Case No. 10 of 1996 was registered.
4. At the trial the accused persons, in all 2, were called upon to answer the charge under section 302/34 of the Penal Code. The accused persons pleaded innocence and claimed to be tried.
5. It was the defence of the accused persons that there was no incident as alleged by the prosecution and that in the evening Tanjila had quarreled with her mother-inlaw and that inmates of the house while sleeping then having had heard cry of the child Malek Gharami woke up and found that Tanjila was not in the bed and there upon he looked for her and found her hanging from a tree by the side of the ‘khal’ and that while Malek Gharami upon cutting the rope tried to bring down the dead body then the same had fallen in the ‘khal’ and that on examining found Tanjila Khatun dead, that as the accused persons on purchasing Hindu property came at the locality and as such as they had no relative near about the house they stayed, being frightened left the house.
6. The trial Court on consideration of the evidence on record arrived at the finding that Tanjila Khatun wife of Malek Gharami did not commit suicide but she was murdered, that in the night when Tanjila Khatun was murdered Malek Gharami was with her and it is the claim of Tanjila Khatun’s husband that he and Tanjila Khatun slept in the same bed and in that state of the matter Malek Gharami failed to explain how death occurred to Tanjila Khatun. Since her husband’s claim that Tanjila Khatun committed suicide was
not true, the Court thereupon convicted and sentenced the petitioner as stated hereinbefore and acquitted the other accused person.
7. The convict filed appeal before the High Court Division. The High Court Division noticed the fact, in the background of the defence of the petitioner, that the rope using which the deceased, as claimed by the petitioner, hanged herself was not found by the investigating officer by the side of the dead body nor the instrument, as stated by the petitioner, used for cutting the rope for bringing down the dead body was found by the Investigating Officer. It may be mentioned the convict did not produce those materials. The High Court Division considered the fact of abscondence of the petitioner as one of the element in drawing the conclusion that the petitioner was responsible for causing death of his wife. It is true, as submitted by the learned Advocate for the petitioner, that mere abscondence can not be the basis for arriving at a conclusion that the person in abscondence was responsible for causing the incident i.e. committed an offence like the instant one causing death of petitioner’s wife. But in the facts and circumstances of the instant case we are of the view abscondance of the petitioner can very much be taken into consideration in arriving at the conclusion as to responsibility of the petitioner in causing death of his wife.
8. The High Court Division considered the evidence of P.Ws.3 and 4 as regard the fact of making demand for dowry and for noncomplying of the said demand the petitioner and others were used to torture the deceased, ft may be mentioned the petitioner tried to make out a case of suicide upon referring to the medical report but the Court has not accepted the convict’s contention since about the genuineness of the medical report at. the very initial stage objection was raised from the prosecution side but for the reason best known to the authority the complaint so made was not addressed to. The Court in consideration of the evidence, both oral and circumstantial in its entirety arrived at the conclusion that petitioner was responsible for causing death of his wife.We on scrutiny of the evidence, which has been made part of the petition for leave to appeal, are of the view that the High Court Division and the trial Court were quite correct in holding the petitioner responsible
for causing death of his wife Tanjila Khatun and thereupon sentencing him as stated hereinbefore.
9. In the background of the discussion we find no reason to interfere with the judgment
of the High Court Division sought to be appealed.
10. Accordingly the petition is dismissed.
Source : V ADC (2008), 171