Abul Kalam Vs. The State, 3 LNJ (2014) 750

Case No: CRIMINAL APPEAL NO. 2893 OF 2010

Judge: Md. Nazrul Islam Talukder,

Court: High Court Division,,

Advocate: Mr. Md. Khurshedul Alam,Mr. Harunur Rashid,,

Citation: 3 LNJ (2014) 750

Case Year: 2014

Appellant: Abul Kalam

Respondent: The State

Subject: FIR,

Delivery Date: 2011-11-30


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Moyeenul Islam Chowdhury, J.
And
Md. Nazrul Islam Talukder, J.
Judgment on
30.11.2011
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Abul Kalam
...Convict-Appellant.
-Versus-
The State.
...Respondent.
 
 
Evidence Act (I of 1872)
Sections 145 and 157
The First Information Report is not a substantive piece of evidence, but it can be used to corroborate the statement of the informant under section 157 of the Evidence Act or to contradict him under section 145 of the said Act. The Court is, of course, entitled to note the conflicts between the first recorded version of the prosecution case and the case made out in the course of the trial. . . .(25)
 
Code of Criminal Procedure (V of 1998)
Section 154
Since the prosecution could not give satisfactory explanation for making a delay of 3 days in lodging the First Information Report, it appears that the delay of 3 days in lodging the First Information Report on the face of enmity between the parties has made the whole prosecution case shaky and doubtful. . . . (43)
 
Dalim and another Vs. The State, 15 BLD (HCD) (1995) 133; Shamsul Huq @ Shamsul and others Vs. The State, 38 DLR (AD) (1986) 75; Md. Musa alias Musaiya alias Shafir Bap Vs. The State, 15 BLD (HCD) (1995) 169; Mayezuddin and other Vs. The State, 31 DLR (AD) (1979) 37; Tajul Islam and others Vs. The State, 15 BLD (HCD) (1995) 53 and Kawsarun Nessa and another Vs. The State, 15 BLD (HCD)(1995) 21 ref.

Mr. Harunur Rashid, Advocate
...For the Convict-Appellant.

Mr. Md. Khurshedul Alam, Deputy Attorney-General with
Mr. Md. Monjur Kader, Assistant Attorney-General and
Mr. Delwar Hossain Samaddar, Assistant Attorney-General
...For the Respondent.

Criminal Appeal No. 2893 of 2010
 
JUDGMENT
Md. Nazrul Islam Talukder, J:
 
This criminal appeal, at the instance of the convict-appellant, is directed against the judgment and order of conviction and sentence dated 04.09.2003 passed by the learned Assistant Sessions Judge, 2nd Court, Comilla  in Sessions Case No. 80 of 2001 convicting the convict- appellant under sections  342/392 of the  Penal Code and sentencing him thereunder to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Tk. 5,000/=, in default, to suffer rigorous imprisonment for 01 (one) year more and/or pass such other or further order or orders as to this Court may seem fit and proper.

The prosecution case as disclosed by P.W.1 may be, briefly, stated as follows: On 03.2.2000, P.W.1, namely, Saidul Alam as an informant lodged a First Information Report with Kotwali Police Station against the convict-appellant and another stating, inter-alia, that there was a litigation between the parties over a land dispute. On the date of occurrence, P.W.1 along with P.W.2, namely, Ali Azam went to the Court at Comilla in order to know about the latest position of their civil suit.  After taking information of their case, they were coming home. While they reached Shasangacha bus stand, the convict -appellant along with other miscreants being armed with Pistol, Chapati and dagger attacked them, dragged them to the north side of the Bus-stand at Shasangacha and assaulted them with fist blows. The convict-appellant snatched away Tk.7,000/- from the pocket of P.W.2 and F.I.R named accused No. 1 snatched away a wrist watch from the left hand of  P.W.2. The F.I.R named accused, in collaboration with some unknown accused, took signatures of P.W.1 and P.W.2 on three stamps of Tk.50/- each at gun point. Thereafter, the convict-appellant and another took them to a residential hotel, namely, ‘People’s hotel’ and confined them there. On getting information, the police after lodging G.D No. 1835 dated 31.01.2000, went to the hotel, recovered the informant and another and arrested the F.I.R named accused No.1, namely, Yunus Miah. Hence, a First Information Report was lodged against the convict-appellant and another under sections 143/372/323/379/387/34 of the Penal Code.

During investigation, the police went to the place of occurrence and recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure. Having found a prima facie case, the police submitted charge sheet being No.108 dated 03.2.2000 against the convict-appellant and another under sections 342/323/379/387/34 of the Penal Code.

At the time of commencement of the trial, the learned Assistant Sessions Judge, 2nd Court, Khulna framed charge against the convict-appellant and another under sections 342/392/387 of the Penal Code and the same was read over and explained to the convict-appellant who denied the charge and claimed to be innocent and prayed to face trial in accordance with law.

However, the charge could not be read over to the co-accused, Yunus Miah as he was in abscondence from the proceeding at that time. 

It is on record that during the trial of the case, the convict-appellant was enlarged on bail by the learned Judge of the Tribunal, but he absconded by misusing the privilege of bail.

At the trial of the case, the prosecution examined as many as 6 witnesses to prove the prosecution case. On the other hand, the defence did not examine any witness in support of the defence case.

It is to be mentioned here that the co-accused, Yunus Miah died during the trial of the case and the convict-appellant could not be examined under section 342 of the Code of Criminal Procedure as he was in abscondence after being enlarged on bail.  However, the learned Judge of the Trial Court after recording of evidence of the prosecution witnesses and hearing the parties found the prosecution case proved against the convict-appellant and convicted him under sections 342/392 of the Penal Code and sentenced him thereunder to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Tk. 5,000/=, in default, to suffer rigorous imprisonment for 01 (one) year more.

Though the convict-appellant remained absconder, he was, subsequently, arrested by the police on 13.12.2008, that is, after delivery of judgment. The convict-appellant, thereafter, applied for certified copy of the impugned judgment and order of conviction and sentence and after procuring the same, he preferred this criminal appeal before this Court under section 408(b) of the Code of Criminal Procedure. 

At the very outset, Mr. Md. Harunur Rashid, learned Advocate appearing for the convict-appellant, submits that though the alleged occurrence took place on 30.1.2000, the First Information Report was lodged with the concerned police station on 03.2.2000, that is, after making a delay of 3 days and that the explanation given in the First Information Report does not appear to be satisfactory and as such, the same casts doubt on the veracity of the prosecution case. He next submits that the charge was not framed in terms of the prosecution case and that the story mentioned in the charge is a total departure from the prosecution story and as such, the impugned judgment and order passed against the convict-appellant is liable to be set aside. He then submits that the evidence given by the prosecution witnesses is highly contradictory and that the impugned judgment and order passed on the basis of evidence of interested witnesses cannot be sustainable in the eye of law. He also submits that though the prosecution examined as many as 6 witnesses, the evidence adduced by P.W.1 was not supported by P.W.2 and the other witnesses and as such, the impugned judgment and order of conviction and sentence is untenable on the basis of evidence having not been corroborated by the evidence of independent witnesses and as such, the impugned judgment and order is liable to be set aside. He emphatically submits that the important witnesses from the place of bus stand as well as from the place of People’s hotel were not examined in the instant case to prove the prosecution case and had they been examined, they would not have supported the prosecution case and as such, the convict-appellant is entitled to get the benefit of doubt under section 114(g) of the Evidence Act. He lastly submits that under the circumstances, this Criminal appeal should be allowed and the conviction and sentence should be set aside.

On the other hand, Mr. Monjur Kader, learned Assistant Attorney-General appearing on behalf of the State-Respondent, submits that the prosecution examined as many as 6 witnesses to prove the prosecution case and that all the prosecution witnesses adduced evidence disclosing the convict-appellant’s involvement in the commission of the offence and as such, the learned Judge of the Trial Court rightly passed the impugned judgment and order of conviction and sentence. He next submits that all the prosecution witnesses are neutral and disinterested witnesses and as such, the impugned judgment and order based on the evidence of the prosecution witnesses is very much sustainable in the eye of law and as such, the criminal appeal filed by the convict-appellant should be dismissed.

We have gone through the petition of appeal, evidence of witnesses and other materials on record. We have also considered the submissions made by the learned Advocates for both the parties.

It is a settled principle of law that the prosecution has to prove its case beyond all reasonable doubt by adducing reliable and satisfactory evidence before the Court to connect the convict-appellant with the alleged offence.

Now we want to see and examine whether the prosecution has been able to prove its case against the convict-appellant by adducing reliable and satisfactory evidence before the Court.

In the instant case, the prosecution examined as many as 6 witnesses. P.W.1, Md. Saidul Alam is an informant who deposed before the Trial Court to the effect that on the date of occurrence, he along with P.W.2 went to the court at Comilla in order to know the latest position of their civil suit. He next testified that while they reached Shasangacha bus stand, they were attacked by the accused and others who snatched away Tk.7,000/- and a wrist watch from  the possession of P.W.2. He then claimed that the accused took them to a nearby ‘People’s hotel’ forcibly and took their signatures on three stamps of Tk. 50/- each at gun point. He also stated that after getting information, the police came to the hotel, recovered him along with P.W.2, arrested the co-accused, Yunus Miah and lodged a First Information Report against the convict-appellant and another. It appears that P.W.1 was not cross- examined by the convict-appellant as he being enlarged on bail remained an absconder at the time of recording of evidence of P.W.1.

P.W.2, Ali Azzam is a star prosecution witness who deposed before the Trial Court stating, inter alia, that on the date of occurrence, while the P.W.2 and P.W.1 were coming home from Comilla, the F.I.R. named accused and others forcibly took them to the north side of the bus stand.  He then stated that the convict-appellant snatched away Tk.7,000/- and F.I.R. named accused No.1 took away a wrist watch. He next testified before the Court that subsequently, the accused took them to a nearby ‘People’s hotel’’ and compelled them to put their signatures on three stamps of Tk. 50/- each. He then stated that after getting information, the police came to the place of occurrence and arrested the First Information Report named accused No.1. This witness was also not cross-examined by the convict-appellant who remained an absconder during trial of the case.

P.W.3, Md. Abdul Hamid, ASI of police stated in his deposition before the Trial Court that he had submitted report as to the nature and character of the convict-appellant. Basically, the P.W.3 is not the witness of the place of occurrence; rather he is a formal witness only.

P.W.4, Mobarak Hossain claimed in his deposition before the Trial Court that on the date of occurrence, while P.W.1 and P.W.2 were on their way home, the F.I.R named accused and some miscreants took them to the north side of the bus stand and assaulted them there. He next testified that the accused also took them to the ‘People’s hotel’, took Tk. 7,000/- and forcibly took their signatures on stamp papers. He further claimed that after getting information, the police came to the hotel, recovered them and arrested F.I.R. named accused No.1, Yunus Miah.

P.W.5, Ataur Rahman claimed in his evidence that on the date of occurrence, some miscreants assaulted the P.W.1 and P.W.2 and snatched away Tk.7,000/- along with a wrist watch from their possession. He next claimed that subsequently, the miscreants took them to the ‘People’s hotel’ forcibly and took their signatures on stamp papers. He then testified that after getting information, the police came to the place of occurrence, arrested the accused, Yunus Miah and took him to the police station. 

P.W.6, Md. Siraj Uddin is an Investi-gating Officer as well as a formal witness. He deposed that he went to the place of occurrence, recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure and submitted charge sheet against the convict-appellant and others under sections 342/323/379/387/34 of the Penal Code.

It appears from the record of the case that though the prosecution examined as many as 6 witnesses, none of them was cross-examined by the convict-appellant since he remained an absconder during the trial of the case.

On the basis of evidence given by the prosecution witnesses, let us see whether the impugned judgment and order of conviction and sentence is based on legal evidence or not.

On perusal of the testimony of P.W.1, it appears to us that P.W.1, Md. Saidul Alam is an informant who lodged the First Information Report with the local police station against the convict-appellant and another disclosing, inter alia, that while they were coming home from Comilla, they were attacked by the accused and others who took them to the northern side of Shasangacha bus stand and snatched away Tk.7,000/- and a wrist watch from witness No.2. It further appears that the accused, subsequently, took them to ‘People’s hotel’ and took their signatures on the three stamps of Tk. 50/- each at gun point.

It is alleged by P.W.1 as informant in the First Information Report that the convict-appellant and others dragged the P.W.1 and P.W.2 to the north side of the bus stand and compelled them to put their signature on the three stamps of TK.50/- each. But P.W.1 clearly deposed before the court that the accused and others took them to  ‘People’s hotel’ and forced them to put their signatures on some stamp papers.
 
On a close scrutiny of evidence of P.W.1, it stems out that the P.W.1, in his evidence, did not specifically disclose the name of any accused who actually snatched away Tk. 7,000/- and a wrist watch from the possession of P.W.2. A reference to the evidence given by P.W.1 clearly and manifestly shows that there are some material contradictions and discrepancies between the statements made in the First Information Report and the evidence given by P.W.1 before the court. It may be mentioned here that the First Information Report is not a substantive piece of evidence, but it can be used to corroborate the statement of the informant under section 157 of the Evidence Act or to contradict him under section 145 of the said Act. The Court is, of course, entitled to note the conflicts between the first recorded version of the prosecution case and the case made out in the course of the trial. In this regard, reliance may be made on the decision in the case of The State -Vs- Basirullah, 16 DLR(1964) 189, wherein it has been observed:
“The Court is entitled to note the conflict between the first recorded version of the prosecution case and the story that is made out in course of trial. A comparison between two such versions of the case is not only permissible, but imperative in the context of the circumstances set out above.”

In view of foregoing discussions and the propositions of law discussed above, we hold that the evidence given by P.W.1, as we see it, suffers from contradictions and infirmities and the same casts doubt on the veracity of the prosecution version.

The evidence of P.W.2 indicates that the F.I.R. named accused and others dragged them to the north side of bus stand and the convict-appellant snatched away Tk. 7000/- and F.I.R. named accused No.1 took away a wrist watch. But he did not particularly mention the name of the person from whom the alleged money and the wrist watch were taken away.

He also did not specifically disclose the name of any accused who took them to the nearby ‘People’s hotel’ and compelled them to put their signatures on three stamps of Tk. 50/- each.

On going through the evidence of P.W.1 and P.W.2, we find that P.W.1 did not disclose name of any accused who allegedly snatched the away money and the wrist watch from P.W.2; but P.W.2 disclosed the name of convict-appellant and entangled him with commission of alleged offence. However, none of the witnesses could not mention the name of any accused who compelled P.W.1 and P.W.2 to put their signatures on three stamp-papers.

It is evident from the First Information Report that there is enmity between the parties over a land property. It is a settled principle of law that when enmity is admitted between the parties, the court has to insist on corroboration of the prosecution case by independent evidence. Under the circumstances, it is, of course, correct to say that the evidence of P.W.1 has not been supported and corroborated by the evidence given by P.W.2.

P.W.3 is Md. Abdul Hamid, ASI of police. He is not the witness of place of occurrence. He only submitted report regarding the nature and character of the convict-appellant and others. Accordingly, P.W.3 is a formal witness who did not disclose anything about the involvement of the convict-appellant in the commission of offence.

From the evidence adduced by P.W.4, it appears that P.W.4 did not specifically mention the name of any accused who snatched away Tk. 7000/- and compelled them to put their signatures on stamp-papers.
P.W. 5 also gave evidence in line with the evidence given by P.W.1, 2 and 4 and he did not specifically disclose the name of any accused who took money from P.W.2 and compelled the informant and others to put their signatures on three stamp-papers.

P.W.6 is an Investigating Officer, who mainly submitted charge sheet under sections 342/323/379/387/34 of the Penal Code against the convict-appellant and others.

The well known legal dictum of law is that the evidence of the prosecution witnesses is to be weighed but not to be counted. The evidence of witnesses depends upon his knowledge of facts to which he testified. On the credibility of witnesses, we may refer to a decision in the case of Dalim and another Vs.The State, 15 BLD (HCD) (1995) 133, wherein it has been settled :
“The credit to be given to the evidence of a witness is a matter which is not governed by rule of law. It depends upon his knowledge of facts to which he testified, his disinterestedness, integrity and veracity. In judging the credibility of a witness the Court has to consider the surrounding circumstances as well as the broad probabilities. When a witness is found to be trustworthy, straight-forward and reliable and his evidence intrinsically rings true, the evidence of such a witness can be safely relied upon.”       
 
It is a settled principle of law that prosecution is to prove its case by adducing reliable and satisfactory evidence before the Court and the accused remains innocent till the prosecution proves guilt against him. In this connection, we may refer to a decision in the case of Shamsul Huq @ Shamsul and others Vs.The State, 38 DLR (AD) (1986) 75, wherein it has been decided :
“The manner of the incident as alleged by the prosecution must be proved by the prosecution alone; that burden never shifts. If the manner of the incident is not proved, the prosecution must fail no matter the defence version of the case has been proved either.” 
 
Similar view finds support in a decision in the case of Md. Musa alias Musaiya alias Shafir Bap Vs.The State, 15 BLD (HCD) (1995) 169, wherein, it has been held:
“The prosecution must prove its case beyond all reasonable doubt by reliable and sufficient evidence and the onus of proof of the case is always on the prosecution and further even some other cases are pending against the appellant, for that he or they cannot be found guilty in this case unless this case is proved beyond all reasonable doubt by sufficient evidence.”
 
The submission advanced by the learned Advocate for the convict-appellant is that the evidence given by prosecution witnesses is contradictory and untrustworthy in nature and as such, the conviction and sentence awarded on the basis of such contradictory and untrustworthy evidence cannot be sustained in the eye of law.
 
Before coming to a decision, we should discuss the rule of prudence governing the case on contradictory and discrepant evidence.
 
In order to understand the scope of law on the aforesaid matters, we may refer to a decision in the case of Mayezuddin and other Vs.The State, 31 DLR (AD)(1979) 37, wherein it has been spelt out :
“The discrepant statement is one which is either irrelevant or incoherent, but it is not irreconcilable. A discrepant statement is not fatal to the credibility of a witness. A contradictory statement is one which is conflicting and is not reconcilable with other statements either of his own or any other witness. The question in such case is that it is open to a court of fact either to reject the whole evidence of a witness as untrustworthy or to reject the contradi-ctory part as unreliable or to rely upon that portion, which in the opinion of the court, fits in with other evidence and the facts and circumstances of the case. The exercise of the power is guided by judicial discretion and cannot be exercised either arbitrarily or capriciously.”
 
On a critical analysis of evidence given by the prosecution witnesses, we find that the evidence given by the prosecution witnesses is not mutually corroborative; rather the same appears to be contradictory, unreliable and untrustworthy. Accordingly, we cannot fasten the convict-appellant with the commission of alleged offences under sections 342/392 of the Penal Code on the basis of contradictory, inconsistent and unreliable evidence.
 
In view of above discussions and propositions of law, we are led to hold that the learned judge of the trial court failed to appreciate the inherent contradictions and infirmities in the evidence of the prosecution witnesses and that the conviction and sentence awarded on the basis of untrustworthy and unreliable evidence can not be maintained at all.  
 
Apart from this, it is contended by the learned advocate for the convict-appellant that admittedly, there is enmity between the convict-appellant and the informant party. It is further contended that the alleged occurrence took place on 30.1.2000 and the police arrested the F.I.R named accused, namely, Yunus Miah on that day; but it is curious enough to note the First Information Report was lodged on 03.2.2000 making a delay of 3 days and that the explanation given to the effect that the delay was caused because of consultation with their relatives does not stand to reason. Since the prosecution could not give satisfactory explanation for making a delay of 3 days in lodging the First Information Report, it appears to us that the delay of 3 days in lodging the First Information Report on the face of enmity between the parties has made the whole prosecution case shaky and doubtful. The aforesaid legal view gets support in the decision in the case of Tajul Islam and others Vs.The State, 15 BLD(HCD)(1995) 53, wherein it has been laid down :
“The unreasonable delay in lodging the F.I.R. inevitably gives rise to suspicion which requires the court to look for possible motive and the explanation for delay and consider its effect on the trustworthiness or otherwise of the prosecution version of the case.”
 
Another aspect of the prosecution case is that when P.W.1 and P.W.2 were coming home from the court at Comilla, they were taken to the north side of the Shasangacha bus stand and thereafter, they were taken to ‘People’s hotel’, but it is interesting to note that none of the witnesses from the bus stand as well as from the hotel was examined to prove the prosecution case. Under this scenario of the case, it may be noted that non-examination of important witnesses from the place of occurrence has rendered the whole prosecution case unbelievable. Under these circumstances, we may hold that had the witnesses been examined by the prosecution, they would have not supported the prosecution case and as such, the accused-appellant is entitled to get the benefit of doubt under section 114(g) of the Evidence Act. In this connection, reliance may be put on the decision in the case of Kawsarun Nessa and another Vs. The State, 15 BLD (HCD) (1995) 21 wherein it has been held :
“Non-examination of independent witnesses, especially some of the close neighbours, calls for a presumption under section 114(g) of the Evidence Act to the effect that had they been examined, they might have deposed against the prosecution.” 
 
It is alleged by the prosecution in the First Information Report that the F.I.R. named accused and others forcibly took P.W.1 and P.W.2 to the north side of Shasangacha bus stand at gun point; that the accused-appellant snatched away Tk. 7000/- from the P.W.2 and another accused, Yunus Miah took away a wrist watch from the possession of P.W.2; that the accused compelled them to put signature on three unwritten non-judicial stamp papers under intimidation; that then the convict-appellant went away from the bus stand taking snatched money and stamp-papers; that thereafter the accused, Yunus Miah with the help of other miscreants took them to ‘People’s hotel’ and confined them there, but it appears from the charge framing order that charge was framed against the convict-appellant and another to the effect that as soon as P.W.1 and P.W.2 reached Shasangacha bus stand, the convict-appellant and another snatched away Tk. 7,000/- along with a wrist watch from P.W.2, took his signature on stamp-papers and confined him in ‘People’s hotel’ and as such, the convict-appellant and others committed offences under sections 342/392/387 of the Penal Code.

On going through the First Information Report and charge framing order, we find some contradictions between the charge framing order and the prosecution case and as such, it transpires that the story disclosed in the charge framing order is, no doubt, a departure from the prosecution case and accordingly, we find that the charge itself is a defective one which was not framed in the light of prosecution story as alleged in the First Information Report and as such, the conviction and sentence based on defective charge can not be sustained in the eye of law.

From the foregoing discussion and having regard to the facts and circumstances of the case, we are led to hold that the prosecution could not prove its case against the convict-appellant beyond all reasonable doubt by adducing reliable and satisfactory evidence before the court.

Considering the facts and circumstances of the case and the evidence on record, we find substance in the submissions advanced by the learned Advocate for the convict-appellant, Mr. Harunur Rashid. Accordingly, we find merit in this criminal appeal.  
   
Consequently, the criminal appeal is allowed.

The impugned judgment and order of conviction and sentence dated 04.09.2003 passed by the learned Assistant Sessions Judge, 2nd Court, Comilla in Sessions Case No. 80 of 2001 is hereby set aside. The convict-appellant is acquitted of the charge levelled against him.

Let the convict-appellant be set at liberty at once, if not wanted in connection with any other case.

Let the lower Court’s record along with a copy of this judgment be sent down immediately.  

Ed.