Appellate Division Cases
(Criminal)
PARTIES
The State………………….. Petitioner.
-Vs-
Matiur Rahman………………. Respondent.
Md. Ruhul Amin J
M.M.Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 15th January 2007
The Penal Code, Sections 457,302. 201
Delay of 3 days is condoned…………..(1)
High Court Division dismissed the death reference and allowed the jail appeal and the criminal appeal on the finding that in the instant case there being no direct evidence to prove the case against the condemned prisoner it is to be seen whether the prosecution on the basis of circumstantial evidence had been able to prove the guilt of the condemned prisoner beyond all reasonable doubt and it is not -disputed by the defence that the victim died of her stab injury received while she was with her husband sleeping in the same hut and so the prosecution is under a legal duty to prove beyond all reasonable doubt that it was none else but the condemned prisoner who inflicted the stab injury to his wife, the victim, on the night of occurrence which caused her death; P.Ws. 1 and 2 examined by the prosecution only deposed that they came to know that the condemned prisoner inflicted the stab injury to his wife, the victim, which caused her death and the other 7 witnesses also substantially stated that they heard that at the dead of night thieves entered the hut of the condemned prisoner for stealing the sacks of paddy from his house and being faced with resistance inflicted stab injury which eventually caused the death of the victim……………(7)
From the record that the police during the investigation seized, as alamat, blood stained earth from the floor inside the house but nothing from the sleeping cot, and a blood stained knife and three sack of paddy left indisorderly condition from the house; the inquest report shows that soon after the victim was stabbed she was removed to the hospital by the condemned prisoner for the purpose of her treatment but she was declared dead by the doctor on duty; P.W. 1, the father of the victim, was also promptly informed about the death of his daughter soon after the occurrence and he also came to the hospital
at about 9 AM in the morning following the night of occurrence and saw the dead body of his daughter and also the injuries; the contents of the petition of complaint show that the condemned prisoner as well as other accuseds named therein were present at the hospital while inquest on the dead body was held at the hospital premises by the police and they did not take to their heels in fear of being apprehended ……………………(7)
B. Hossain, Advocate-on-Record ………………………….For the Petitioner
Respondent……………………………….. Not represented.
Criminal Petition For Leave To Appeal No. 258 of 2004
(From the judgment and order dated 4th April, 2004 passed by the High Court Division in Death Reference No.20 of 2002 with Criminal Appeal No. 1916 of 2002)
JUDGMENT
Md. Tafazzul Islam J: Delay of 3 days is condoned.
2. This petition for leave to appeal is directed against the judgment and order passed by the High Court Division on 4.4.2004 in Death Reference No.20 of 2002 (heard with Jail Appeal No.346 of 2002 and Criminal Appeal No. 1916 of 2002) rejecting the Death Reference No.20 of 2002 and allowing the Jail Appeal No.346 of 2002 and Criminal
Appeal No. 19/6 of 2002 preferred by the condemned prisoner.
3. The prosecution case, in brief, is that P.W. 1 Md. Sadat Ali, filed a petition of complaint on 31.7.94 in the Court of Magistrate First Class, Kishoreganj against 8 accuseds including the condemned prisoner alleging, inter alia, that six years ago the condemned prisoner married the victim, his daughter and they had one daughter aged about 5 years out of the wedlock; two years ago the condemned prisoner and accused Abdur Rashid, his uncle, put pressure on the victim to bring Tk.7000/-by way of dowry; at the instigation of accused Abdur Rashid the condemned prisoner used to physically
abuse the victim for dowry; about one and a half years prior to the date of occurrence
the condemned prisoner physically assaulted the victim and turned her out of his house whereupon the victim had to take shelter at the house of her father, P.W. 1 and stayed therefor about one year; subsequently, pursuant to a salish by the villagers the victim was handed over to the condemned prisoner and accused Abdur Rashid and accordingly the victim was taken at the house of the condemned prisoner; inspite of above the condemned prisoner and accused Abdur Rashid again started torturing the victim and assaulted her physically and on the night of occurrence, as planned, all the accuseds assaulted the victim and killed her and on the following morning, with a view to screening them from legal punishment, gave out that the victim was killed by thieves at the night of occurrence; P.W. 1 having received the death news of the victim went to the Tarail Hospital and saw her dead body and also saw the sign of injury on her body; then the condemned prisoner, at the instance of the other accuseds, lodged FIR being Tarail PS. Case No. 3(6) 94 dated 9.4.94 under sections 457 and 302 of the Penal Code alleging that the accused Lai Miah and others trespassed into his house at night for committing theft and in the face of resistance stabbed the victim to death; subsequently, P.W. 1 having ascertained that there was no such occurrence of theft and the victim was in fact killed by
the accuseds went to the police station with a written ejahar against the accuseds but the police refused to record the ejahar on the plea that the persons accused by him will be shown as accuseds in the case already started by the condemned prisoner which was under investigation; but subsehospital where she succumbed to her quently the police under the influence of injuries. the accuseds held a perfunctory investigation and filed the charge sheet against persons other then the persons shown as accuseds by the P.W. 1 which made him to file the petition of complaint; subsequently the learned magistrate after perusing the record or Taraif P.S. Case No.3(6) 94 directed CID to investigate the complaint case but since CID failed to submit any report, the learned Magistrate referred the matter to Mr. Ranjit Kumar Das, Magistrate Second Class, for holding judicial
inquiry who, on inquiry, submitted report with the finding that offence under section 302/34 of the Penal Code was committed by the condemned prisoner; thereafter the learned Magistrate, taking cognizance, transmitted the case record to the Court of Sessions Judge, Kishoreganj, for trial and then, on transfer, the learned Additional Sessions Judge, Kishoreganj, framed the charge against the condemned prisoner under sections 302 and 201 of the Penal Code which was duly read over and explained to the condemned prisoner to which he pleaded not guilty and demanded trial.
4. The defence case, as it appears from the trend of cross examination and other materials on record, is that the condemned prisoner had good relationship with the victim and he did not inflict the stab injury on her and in fact Lai Miah and other accused, against whom he lodged the FIR, entered his house at about 2/3 AM in the night of occurrence and tried to steal the sacks of paddy stored inside his house and when his wife, the victim, put up resistance she was stabbed by them and then the condemned prisoner took the victim to the hospital where she succumbed to her injuries.
5. The learned Additional Sessions Judge, on consideration of the evidence and materials on record, found the condemned prisoner guilty under section 302 and 201 of the Penal Code and sentenced him to death. The High Court Division after hearing rejected the reference and allowed the appeals.
6. The learned counsel appearing for the state submitted that the condemned prisoner
having failed to explain as to how his wife, the victim, met her death in the night while she was under his custody and the prosecution having been able to prove their case beyond all reasonable dubts, the High Court Division fell in error in rejecting the reference and further, the High Court Division erred in law in discarding the prosecution witnesses for some artificial reasons not known to criminal jurisprudence casing serious miscarriage of justice.
7. As it appears the High Court Division dismissed the death reference and allowed the jail appeal and the criminal appeal on the finding that in the instant case there being no direct evidence to prove the case against the condemned prisoner it is to be seen whether the prosecution on the basis of circumstantial evidence had been able to prove the guilt of the condemned prisoner beyond all reasonable doubt and it is not disputed by the defence that the victim died of her stab injury received while she was with her husband sleeping in the same hut and so the prosecution is under a legal duty to prove beyond all reasonable doubt that it was none else but the condemned prisoner who inflicted the stab injury to his wife, the victim, on the night of occurrence which caused her death; P.Ws. 1 and 2 examined by the prosecution only deposed that they came to know that the condemned prisoner inflicted the stab injury to his wife, the victim, which caused her death and the other 7 witnesses also substantially stated that they heard that at the dead of night thieves entered the hut of the condemned prisoner for stealing the sacks of paddy from his house and being faced with resistance inflicted stab injury which eventually caused the death of the victim; against this oral evidence it is seen from the record that the police during the investigation seized, as alamat, blood stained earth from the floor
inside the house but nothing from the sleeping cot, and a blood stained knife and three sack of paddy left mdisorderly condition from the house; the inquest report shows that soon after the victim was stabbed she was removed to the hospital by the condemned prisoner for the purpose of her treatment but she was declared dead by the doctor on duty; P.W. 1, the father of the victim, was also promptly informed about the death of his daughter soon after the occurrence and he also came to the hospital at about 9 AM in the
morning following the night of occurrence and saw the dead body of his daughter and
also the injuries; the contents of the petition of complaint show that the condemned
prisoner as well as other accuseds named therein were present at the hospital while inquest on the dead body was held at the hospital premises by the police and they did not take to their heels in fear of being apprehended; the evidence and materials on record are capable of creating a belief as to the existence of the situation absolving the husband, the condemned prisoner, of his criminal liability for the murder of his wife, the victim specially when all the public witnesses have stated that they heard that the victim was killed by the thieves who entered the house of the condemned prisoner for committing
theft. The High Court Division further held that the normal phenomena in wife killing cases is that the victim wife is either beaten to death or throttled to death by the husband out of rage or disgust for non-payment of dowry and that though it is well neigh impossible for the husband to cause death to his wife by stabling but it is unlikely that a husband will ensure death of his wife by inflicting one single stab injury in the middle of night in a calculated manner by awakening her from the sleep and taking her out of the bed without causing any other physical harm to her and on the other hand it is rather
possible for any third party to cause one single stab injury to remove any obstacle in his way while committing theft which could cause death and that the entire evidence and materials on record are suggestive of involvement of a third party in the causing of death of the victim on the night of occurrence and so the condemned prisoner is therefore entitled to the benefit of doubt and this doubt or suspicion is very much discernible from the evidence and materials on record if the case of the prosecution and that of the defence are placed in juxtaposition and carefully considered but the learned Additional Sessions Judge has apparently failed to do so and thus committed illegality and as a result there
has been a miscarriage of justice. The High Court Division further held that the learned Additional Sessions Judge illegally admitted the evidence of Dr. Ariful Sarwar in this case without examining him as an witnesses in this case and similarly illegality admitted the inquest report as well as the seizure list and alamats as evidence without examining the Investigating Officer and further, the law of trial of cross cases is now well settled inasmuch as if there is a case and a counter case, both the cases are required to be tried
simultaneously one after another and without importing the evidence of one case into the other case and the trial court, in such cases, should be on its guard so that the evidence of one case is not imported into the other and thereby divert the course of justice to a wrong channel as has been held in the cases reported in 1987 BCR(AD) 140, 7 DLR 305, 13 DLR 414, 18 DLR(SC) 474 and 21 DLR Dhaka 958 and that in the case of Siddique Mian Vs. The State, 4 MLR (AD) 167 it has been observed that the process of trial of cross cases is that both should be tried by the same judge simultaneously or one after
another and judgment therein should be delivered after concluding the hearing of
both the cases and in such trial, record of cases should be kept distinct and separate
and evidence of one case can not be used in another case and each case must decide
on its own evidence and record and further, in view of the ratio decidendi of the case reported in 18 DLR SC 474, the postmortem Doctor Md. Ariful Sarwar and the Investigating Officer were required to be independently examined in the present
case in order to use their evidence which was not done and so in this backdrop of the case, there had been another miscarriage of justice.
8. We are of the view that the High court Division on proper consideration of the evidence and the materials on record arrived at a correct decision. The learned counsel could not point at any illegality or infirmity in the decision of the High court Division so as to call for any interference.
9. The petition is dismissed.
Source : V ADC (2008), 164