Evidence Act (I of 1872)
From the materials on record it appears that soon after the occurrence the condemned-prisoner fled away and remained abscon-ding during trial, and trial was held in absentia. Abscondence of an accused is an incriminating circumstances connecting him in the offence and conduct of a person in abscondence after commission of crime is an evidence to show that he is concerned in the offence. …..(34)
Evidence Act ( of 1872)
Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same. Straightforward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. ..(37)
State Vs. Aynul Huq 9 MLR 393= 9 BLC 529; Gouranga Kumar Saha vs. State 2 BLC (AD) 126; Abdul Mutaleb Howlader vs. State 5 MLR(AD)92= 6 BLC(AD)1; Dipok Kumar Sarkar vs. State reported in 40 DLR(AD) 139; and Sudhir Kumar Das alias Khudi Vs. State 60 DLR-261; PLD 1965 Lah.656; 39 DLR 437; 33 DLR 274; AIR 1998SC107 and 40 DLR 58, ref.
Mr. M.A. Mannan Mohan,D.A.G with
Md. Mahbubul Alam, A.A.G
Mr. Md. OsmanGoni
–For the State.
Mr. Abdul Bashar, Advocate.
–For the condemned prisoner
Syed Md. Ziaul Karim, J:
This Death Reference under Section 374 of the Code of Criminal Procedure (briefly as the Code)has been made by the learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal, Faridpur (briefly as Tribunal), for confirmation of death sentence of condemned-prisoner. The learned Judge by the Judgment and order of conviction and sentence dated 13-06-2006 in Nari-O-Shishu Case no. 107 of 2005 convicted the condemned prisoner under Section 11(L) of Nari-O-Shishu Nirjatan Daman Ain, 2000(briefly as Ain 2000) and sentenced him to death by hanging.
- 2. The prosecution case put in a nutshell are that victim Champa aged about 23 years daughter of informant Md. Afzal Molla( P.W.1) was married with accused Md. Sahadat son of late Nazeem Bepari of village Balia before four months. At the bridal ceremony two vories of gold and Tk.10,000/= in cash was were given as dowry. Even, then her accused husband use to demand dowry for Tk.10,000/= more to her. On her failure to bring the same for her greedy husband, she was being tortured for trifling matter. On 13-04-2005 at evening she and her accused husband visited her parents house at village Bhabukdia wherein Tk.10,000/= was demanded to her parents as dowry but due to their poverty they refused to pay the same. Later, at 8:00 p.m. she along with her accused husband left. After an hour her parents came to learn that she was murdered by her accused husband for the cause of her failure to bring dowry for Tk.10,000/= for her greedy husband from them. They rushed to the scene and found her body bore multiple injuries. With these allegations the prosecution was launched by lodging a first information report (briefly as FIR) by her father Md. Afzal Hossain Molla (P.W.1) as informant against her husband Shahadat and four others which was recorded as Saltha Police Station Case no.05 dated 14-04-2005 corresponding to G.R. no. 31 of 2005.
- 3. The Police after investigation submitted charge sheet under Section 11(L) of the Ain 2000 accusing accused Sahadat and other accused were let off. The accused Shahadat remained absconding at the inception of the case.
- 4. Eventually, charge under Section 11(L) of the Ain 2000, was framed against accused Shahadat in his absence. Later he was tried in absentia and defended by State defence lawyer.
- 5. In course of trial the prosecution in all, examined seven witnesses out of fifteen charge sheeted witnesses.
- 6. The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It is divulged in defence that deceased Champa became senseless after taking tobacco powder (N¤m). Subsequently she died but being influenced by local rivals accused was implicated in this case.
- 7. After trial in absentia the Tribunal convicted the accused as aforesaid.
- 8. The learned Deputy Attorney General appearing for the State supports the reference and submits that it is a wife killing case and the prosecution witnesses by corroborative evidence proved that victim Champa died at the custody of her husband. So the accused is under obligation to explain the cause of her death. He lastly submits that the Court below after considering the materials on record rightly convicted the accused which calls for no interference by this Court.
- 9. The learned Advocate appearing for the condemned prisoner opposes the reference and submits that the prosecution measurably failed to prove time, place and manner of occurrence. He adds that the Tribunal convicted the accused in moral view which cannot be sustained in the eye of law.
- 10. In order to appreciate their submissions we have gone through the record and given our anxious considerations to their submissions.
- 11. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
- 12. P.W. 1, Md. Afzal Hossain is the informant and father of deceased Champa. He deposed that his daughter Champa was married with Sahadat. On the first part of Baishak at 7:30 p.m. his daughter and accused came to his home after some time they left despite of his request to stay. The accused later assaulted the victim for the cause of her failure to bring dowry for Tk.10,000/=. On such information he rushed to the scene and found her daughter senseless. He also became senseless. Then the accused took the victim to doctor by van for treatment, as soon as the doctor declared her death, the accused jumped from the van and fled away. He lodged the FIR(I, 1/1).
- 13. In cross-examination he stated that he did not see the occurrence. He denied the suggestion that his daughter became senseless by taking tobacco powder and deposing falsely.
- 14. P.W.2 Dr. Md. Noor Hossain deposed that on 14-04-2005 he held autopsy upon the cadaver of deceased Champa identified by C- Sohrab Hossain and found the following injuries:
“Multiple small bruises and abrasion on the front and sides of the neck cÖvß nq Ges wb¤œiæc gZvgZt
In my opinion: death was due to respiratory failure resulting from injury to the spinal cord due to blunt forced injury on neck which was antemortem and homicidal in nature.”
- 15. He proved the post mortem as Exhbt. 2 and his signature on it as Exhbt. 2/1.
- 16. In cross-examination he stated that he found the aforesaid injuries at neck and he did not find any external injury. He denied the suggestion that he made a perfunctory investigation and submitted a report.
- 17. P.W. 3 Liakat Ali and P.W. 5 Md. Dulal are the local witnesses. They heard that Champa was murdered by his husband for the cause of dowry for Tk.10,000/=.
- 18. In cross-examination they denied the suggestion that they were deposing falsely.
- 19. P.W. 4, Jamir Molla deposed that the victim Champa was his niece, who was murdered by her husband for the cause of her failure to bring dowry for Tk.10,000/=. Her accused husband Sahadat is now absconding and not present on dock.
- 20. In cross-examination he denied the suggestion that no occurrence took place and was deposing falsely.
- 21. P.W.6 Babu Sheikh Van driver. He deposed that accused kept the victim Champa in his van and he carried her to local Bazar.
- 22. In cross-examination he stated that husband of Champa and her brother carried her to doctor at Bazar by his van.
- 23. P.W.7 S.I. Shah Alam deposed that on 14-04-2005 he was attached with Saltha Police Station. The case was entrusted to him. He visited the place of occurrence, prepared sketch map and index (3,3/1, 4,4/1) He held inquest and prepared report. He recorded the statements of the witnesses under Section 161 of the Code. Thereafter submitted charge sheet accusing accused Sahadat and other accused were let off.
- 24. In cross-examination he denied the suggestion that without proper investigation he submitted the report.
- 25. These are all of the evidence on record adduced by the prosecution to prove the charge.
- 26. It is indisputable that the slain Champa was lynched.
- 27. In course of trial the prosecution in all examined seven witnesses, of them P.W.1 is the father of victim Champa and informant of this case. PW 2, is a doctor who held autopsy upon the cadaver and PWs.3 and 5 are local witnesses. P.W.4 is uncle of victim who also heard the occurrence. P.W. 6 Van puller. P.W.7 investigated the case and submitted a report.
- 28. It is a wife killing case. In such case there would be no eye-witness of the occurrence apart-from the inmates of the house, who may refuse to tell the truth. The locals may not come forward to tell the truth. So, the prosecution is therefore, to rely on the circumstantial evidence.
- 29. P.W.1 father of the victim Champa categorically stated that his daughter use to reside in her conjugal home wherein the accused use to torture her for trifling matter for the cause of dowry. They used to ask her to bring dowry for Tk.10,000/= from her parents. On the same night his daughter also demanded for Tk.10,000/= to him as dowry for her greedy husband Sahadat. Due to their poverty they refused to pay the same. Later, she along with her husband left. After an hour he heard about the assaulting to victim Champa by her accused husband. Later the victim succumbed to the injuries and her accused husband fled away. He also found multiple marks of injuries at the neck of his slain daughter. His evidence in respect of injuries also corroborated by P.W.2 Dr. Md. Noor Hossain who held autopsy upon the cadaver of Champa. Their evidences were also corroborated by van driver P.W. 6.The evidence of P.W.1 in respect of demanding dowry and murder of victim Champa furnished corroboration by the evidence of P.Ws.3 – 5, so evidence of all the prosecution witnesses in respect of demanding dowry and causing death by the accused Sahadat while she was at the custody of her husband are consistent, uniform and corroborative with each other with all material particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses having no reason whatsoever to depose falsely against the condemner prisoner. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility.
- 30. Ordinarily the accused has no obligation to account for the death for which he is placed for trial. The murder having taken place while the wife was with the custody of her husband, then the accused husband under Section 106 of the Evidence Act, is under obligation to explain how his wife had met with her death. In absence of any explanation coming from his side it seems, none other than the accused husband was responsible for causing death.
- 31. It is well settled that when it is established that the husband and wife were residing in the same house at the relevant time, the husband is duty bound to explain the circumstances how his wife met her death and in absence of any explanation coming form the husband, irresistible presumption is that it is the husband who is responsible for her death. In this regard reliance can be placed in the case of State Vs. Aynul Huq 9 MLR 393= 9 BLC 529. This view receives support in the case of Gouranga Kumar Saha vs. State 2 BLC (AD) 126. Abdul Mutaleb Howlader vs. State 5 MLR(AD)92= 6 BLC(AD)1, Dipok Kumar Sarkar vs. State reported in 40 DLR(AD) 139 and Sudhir Kumar Das alias Khudi Vs. State 60 DLR-261.
- 32. We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.
d) There must be clear and unequivocal proof of the corpus delicit.
e) The hypothesis of delinquency should be consistent with all the facts proved.
- 33. Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.
- 34. From the materials on record we find that soon after the occurrence the condemned-prisoner fled away and remained absconding during trial, and trial was held in absentia. Abscondence of an accused is an incriminating circumstances connecting him in the offence and conduct of a person in abscondence after commission of crime is an evidence to show that he is concerned in the offence (Vide PLD 1965 Lah. 656). Therefore, anything, which tends to explain his conduct and furnishes a motive other than a guilty conscience, will be relevant under the Evidence Act. Failure to explain reason for absconding after occurrence fovours prosecution (39 DLR 437). Abscondence of accused is a relevant fact. Unless accused explain his conduct, abscondence may indicate guilt of accused (33 DLR 274). Where accused absconded immediately after occurrence and remained out of reach of hand of law for more than years without showing any convincing reason for his absence, it would be an important factor going against absconder accused (AIR-1998 SC-107). Abscondence immediately after incident and till today is a strong incriminating circumstances while can be considered sufficient corroboration of his participation in commission of crime(11 BLT 155).
- 35. The credit to be given to the statement of a witness is a matter not regulated by rule of procedure, but depends upon his knowledge of fact to which he testifies his disinterestedness, his integrity and his veracity. Apportion of oral evidence depends on such variable in consistence which as a human nature can not be reduced as a set formula (40 DLR 58).
- 36. The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness.
- 37. Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same. Straightforward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. So relationship far from being ground of criticism is often a sure guarantee of its truth (40 DLR 58).
- 38. Moreover, the impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. So, the submissions advanced by the learned Counsel for the condemner prisoner are not the correct exposition of law. On the contrary the submissions advanced by the learned Counsel for the State prevails and appears to have a good deal of force.
- 39. In the light of discussions made above and the preponderant judicial views emerging out of the authorities refers to above we are of the view that the prosecution successfully proved the charge against the condemned prisoner beyond all reasonable doubt. Thus the reference having merit succeeds.
- 40. In the result:-
(a) The Death Reference no. 51 of 2006 is accepted. The judgment and order of conviction and sentence dated 13-06-2006 passed by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal, Faridpur, in Nari-O-Shishu Case no. 107 of 2005 is hereby maintained. The sentence of death imposed upon condemned prisoner stands confirmed. The authority concerned shall take appropriate measures to secure the arrest of condemned prisoner, and execute the sentence in terms of judgment passed in Nari-O-Shishu Case no. 107 of 2005 and in accordance with law.
The office is directed to send down the records at once.