Abdul Aziz alias Azit Vs. The State, 3 LNJ (2014) 589

Case No: Criminal Appeal No. 114 of 2006

Judge: A. K. M. Zahirul Hoque,

Court: High Court Division,,

Citation: 3 LNJ (2014) 589

Case Year: 2014

Appellant: Abdul Aziz alias Azit

Respondent: The State

Subject: Commutation/Reduction of Sentence,

Delivery Date: 2011-01-06


HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)

 
A. K. M. Asaduzzaman, J,
And
A. K. M. Zahirul Hoque, J.

Judgment on
06.01.2011
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Abdul Aziz alias Azit
. . . Appellant
-Versus-
The State
... Opposite Party
 
 
Nari-o-Shishu Nirjatan Daman Ain (VIII 2000)
Section 11(Kha)
P.W. 6 is the Doctor who found two injuries on right side of the umbilical region and another left inguenal region and their opinion to the effect that death was due to injury mentioned which was anti-mortem and homicidal in nature these evidences show and well proved that the victim met her death due to those injuries. The accused appellant did not use any deadly weapons for commission of injury and it also further appears that the victim was given treatment by local doctor and subsequently she was taken into hospital for her treatment. Thus it shows that the accused appellant at least do not have the mens rea to kill her. Considering the same and the extenuating circumstances we find that ends of justice will be met if the sentence is reduced to 10 years from life therefore we reduced the sentence of the appellant to 10 years rigorous imprisonment instead of imprisonment for life. . . .(18 and 20)
 
Mr. Md. Ashif Hasan, Advocate
. . . For the appellant
Mr. Md. Bashir Ahmed, A. A. G.
.... For the opposite Party

Criminal Appeal No. 114 of 2006
 
JUDGMENT
A. K. M. Zahirul Hoque, J.

This appeal is directed against the judgment and order dated 29.09.2005 passed by the Judge, Nari-O-Shishu Nirjatan Daman Tribunal-3, Chuadanga in Nari-O-Shishu Nirjatan Case No. 01 of 2003 arising out of G R. Case No. 259 of 2002 and Chudanga P. S. Case No. 04 dated 03.09.2002 convicted the accused-appellant under section 11(kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Tk. 1,000/- in default to suffer rigorous imprisonment for 01 (one) months more.

Prosecution case in short is that one Md. Alfaz Uddin on 03.09.2002 Lodged an FIR with Chuadanga Police Station alleging inter-alia that the present appellant got married with informant’s daughter Sagorika Khatun before 10/11 months; that the accused-persons used to torture her from the beginning. That about one month ago accused Aziz send her to her father’s house of bringing Tk. 20,000/- as dowry money but having been failed to pay the money informant sent her daughter to the appellant asking time to pay the money; that on 01.09.2002 at about 10 P.M. accused persons again created pressure upon the victim to pay the money but having got negative answer, the appellant kick on her abdomen and the other accused persons beat her indiscriminately; that at that time having heard the hue and cry the local persons tried to enter into the house but failed; that thereafter his daughter became sick and the accused persons took her to local doctor Monsur Ali for treatment but for the cause of critical condition she was shifted to the Chuadanga Sadar Hospital and on 03.09.2002 at about 07.00 A. M. his daughter dead there.

That thereafter the said police station started P.S. Case against the accused appellant and other and the case was investigated by the police and submitted charge sheet against the accused appellant and another on 02.12.2002 under section 11 (kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000.

Thereafter the case was transferred to the Court of Nari-O-Shishu Nirjatan Tribunal-3, Chuadanga for holding trial and who framed charge against the accused appellant and another under section 11(ka)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and during course of trial prosecution examined as many as 07 prosecution witnesses and defence examined none.

And after holding trial the Tribunal was pleased to award the above mentioned conviction and sentence against the accused appellant.

Being aggrieved by and dissatisfied with the impugned judgment of conviction and sentence the appellant preferred this appeal.

Mr. Ashif Hasan, the learned Advocate appearing on behalf of the appellant submitted that there is no eye witnesses of occurrence and moreover the surathal report as well as the post mortem report disclose that the victim was death due to take poison and therefore the charge against the accused appellant was not proved by the prosecution thus the accused appellant is liable to be acquitted from the charge. And he further submits that there is no materials on records to show that the accused appellant demanded dowry to the victim as well as the informant so the charged under section 11Ka/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 against the appellant is not maintainable and thereby conviction and sentenced thereunder is also bad in law thus liable to be set aside. He lastly submits that the post mortem report of Doctor did  not mention the age of injury for which the appellant did not take fair defence thus he became seriously prejudiced as well as it cast a doubt in the post mortem report therefore the impugned judgment passed in pursuance of said post mortem report is not maintainable and thus the same is liable to be set aside.

On the other hand, Mr. Bashir Ahmed, the learned Assistant Attorney General appearing on behalf of the state and submits that the learned trial Court after considering the prosecution witnesses he found that the accused appellant committed the offence of injuries for which victim dead and thereby charge under section 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 against the appellant was legal and proper and conviction and sentenced under section 11(kha) of the said Act also legal and proper and the trial Court committed no more illegality in passing the impugned judgment. He further submits that immediately after occurrence the accused appellant without taking any steps cancelled himself so the conduct of the appellant alongwith the facts and circumstances of the case well proved the charge against the accused appellant and thereby the judgment passed by the Tribunal was legal and proper one. He prays that under the facts and circumstances the appeal is liable to be dismissed.

Now let us analysis the deposition of prosecution witnesses led by the prosecution side to arrive at a correct decision.

P. W. 1, Md. Alfaz Uddin the informant stated in his chief that the victim Sagorika is his daughter and accused Abdul Aziz got married with his daughter Sagorika and after marriage the accused and his family members used to demand Tk. 20,000/- as dowry and due to non payment of the said dowry the accused Abdul Aziz and his family member used to torture to the victim and one stage she was send to his house. Thereafter the accused again took his daughter to their residence and on 01.09.2002 he demanded dowry at about 10.00 P.M. and the victim was merociously  tortured by accused Abdul Aziz and accused Zaker. He further stated that his house is beside the house of accused persons and after hearing hue and cry they tried to go to the house of the accused but accused Abdul Aziz made threat upon them and that is why he could not go there. He further stated that due to torture his daughter victim Sagorika became sick and they secretly took her treatment by a local Doctor namely Dr. Monsur Ali, but due to her bad health condition they secretly sent her to the Chuadanga Sadar Hospital and where victim met her death on 03.09.2002. And after getting the information of her death the informant lodged the FIR on that date i.e. 03.09.2002 with the Chuadanga Police Station. He identified his LTI on the FIR and in his cross-examination he stated that the father of the accused Abdul Aziz namely Shadat Mollik has given 05 Kata of his land in the name of her daughter and he denied the suggestion of the defence.

P. W. 2, Angura Begum the mother of the victim stated that marriage of her daughter solemnized with the accused Abdul Aziz and after marriage accused Abdul Aziz and his family member used to demand dowry and also used to torture her daughter and one stage the daughter was sent to their house for dowry and subsequently he was taken to their house. He further stated that on 01.09.2002 at 10.00 hours she heard hue and cry from the house of accused Abdul Aziz and she tried to go there but due to obstruction she did not go there. She further stated that her daughter tortured by the accused due to dower money and consequently her daughter was sick and accused appellant given her treatment to Chuadanga Sadar Hospital where the victim Sagorika meet  her death on 03.09.2002. She denied the suggestion of the defence that on the date of occurrence the accused appellant did not beat due to dower money.

P. W. 3, Most. Hamida Begum she stated in her chief that her house is between the hose of informant and the accused the victim took married with accused Abdul Aziz. She also stated that on    01.09.2002 at night she was at the house of place of occurrence. And she stated while she went to take water from the house of accused on the date of occurrence she heard hue and cry of the victim Sagorika and at that time she asked the wife of Asadul (a brother of accused Abdul Aziz) why the victim Sagorika was crying then she replied that accused Abdul Aziz was tortured to victim Sagorika and she also stated on the next date she found the victim as sick condition and thereafter on the next date the victim died. In her cross examination she stated that the name of the wife of Asadul is Kachori and she is alive. She also stated on the date of occurrence at night she went for taking water from the place of occurrence house and she further stated that nobody was present while she was talking with the wife of Asadul. She denied the suggestion of the defence.

P. W. 4 Monowara Begum stated in her chief that on the night of occurrence the accused Abdul Aziz tortured her wife victim Sagorika. She further stated she was informed by the mother of Abdul Aziz and went there and saw the victim Sagorika was sick even she could not speak and she was requested to go to the Hospital with victim accordingly she went the Hospital along with victim in a same Van and she further stated that victim Sagorika informed her at the Hospital that her husband Abdul Aziz tortured her that is why she became sick. She further stated they reached the Hospital at about 03.00 A. M. at night and thereafter on morning at 05.00 A.M. victim Sagorika died. In his cross examination she stated she made statement before the investigating officer. She dined the suggestion of defence.

P. W.5, Rabeya Begum was tendered.

P. W. 6 Doctor Md. Nazim Uddin Khan stated in his chief that while he was on duty on 03.09.2002 at Chuadanga Sadar Hospital he hold a post mortem examination of victim Sagorika with 03 members of Medical Board. After getting the dead body from Chuadanga Police Station and after examination the said dead body he found the following injuries
1. One bruise at the right side of the umbilical region (নাভিদেশে) about 4”x 3”.
2. One bruise on the left inguenal region (তলপেটের বাম নিম্ন প্রান্তদেশ) region about 2”x1”, there was also one old scar mark at the back of the elbow.”
And as per the opinion the Doctor of the Board that the death as due to injury which are ant-mortem and homicidal in nature. In his cross-examination he stated that he did not mention the age of injury and he denied the suggestion of the defence.
 
P. W. 7, S. I. Nazrul Islam he stated in his chief that while he was on duty at Chuadanga Police Station he engaged as a investigating officer on 03.09.2002 of the Case and during course of investigation he held the inquest report of dead body of victim Sagorika and send the deadbody to the Chuadanga Sadar Hospital for post mortem and he identified his inquest report along with signature which was marked as Exhibit 2 and 2/1. He visited the place of occurrence and prepared the sketch map alongwith index and that sketch map and index were exhibited as Exhibitros 3, 3/1, 4 and 4/1. He recorded the statement of the witnesses under section 161 of the Code of Criminal Procedure. And after holding investigation he submitted charge sheet against the accused appellant and another under section 11Ka /30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. In his cross examination he stated that in the surathal report Alfaz put his LTI and denied the suggestion of the defence.

These are the evidences led by the prosecution side.

It appears that the P. W. 1 after getting information lodged the FIR against the accused appellant and others alleging  that due to demand of dowry money his daughter was tortured by the accused appellant and others on  01.09.2002 and for which his daughter met her death in the Hospital on 03.04.2002 . He deposed before the Court in support of the FIR story and P. W. 2 also corroborated with the evidence of P. W. 1 and P. W. 3 immediately after occurrence heard about the commission of offence by the accused appellant from the brother’s wife of the appellant and P. W. 4 who was along with the victim she at the hospital up to her death and before death she was informed by the victim that her husband tortured the victim and due to his torture he became so sick and there is no reason to disbelieve the deposition of P. W. 3 and 4 and P. W. 5 was tendered and cross examination was declined by the defence and P.W. 6 is the Doctor who found two injuries on right side of the umbilical region and another left inguenal region and their opinion to the effect that death was due to injury mentioned which was anti-mortem and homicidal in nature  these evidences shows and well proved that the victim met her death due to those injuries and P. Ws. 1-4 along with the deposition of investigating officer and sketch map shows that the place of occurrence has mentioned in the index in the sketch map and in where index shows that ঘটনাস্থল ১নং আসামী আজিজ এর বসত ঘর। the place of occurrence was not denied in manner by the defence in any point of time so it is well clear that the occurrence took place within the residence of the husband of the victim and as per the evidence of P. Ws. 3 and 4 that husband of victim Abdul Aziz tortured the victim and due to that tortured she met her death in the hospital on 03.09.2002 and another exceptional circumstances is that immediately after occurrence the accused appellant concealed himself from the trial and even he did not take any step to explain under what circumstances her wife met her  death this burden of prove heavily lies upon the accused appellant as the husband of victim and while the occurrence took place with in his custody.

The learned Advocate for the appellant submits that the age of injury was not mentioned in the postmortem report for which the accused appellant has been seriously prejudiced. It appears that the date of occurrence took place on 01.09.2002 and thereafter he was taken to the hospital by the accused which was not denied and subsequently she made her death on 03.09.2002 that fact was also not been denied by the defence and immediately after death the surathal report was prepared by the investigation officer and post mortem was held on 03.09.2002 on the same date. So non mentioning the age of injury by the Doctor did not make the prejudice to the appellant in any manner under the facts and circumstances of the present case. Therefore the prosecution well proved the charge against the accused appellant.

Under the above facts and circumstances of the case, we find that the learned trial Court did not commit any illegality in passing the impugned judgment. However, it appears that the accused appellant did not use any deadly weapons for commission of injury and it also further appears that the victim was given treatment by local doctor and subsequently she was taken into hospital for her treatment. Thus it shows that the accused appellant at least do not have the mensrea to kill her. Considering the same and the extenuating circumstances we find that ends of justice will be met if the sentence is reduced to 10 years from life therefore we reduced the sentence of the appellant to 10 years rigorous imprisonment instead of imprisonment for life.

With the above modification the appeal is dismissed.

Send down the lower Court records together with copy of the judgment to the courts below at once.

Ed.