Anarul @ Anarul Huq Vs. The State [4 LNJ AD (2015) 37]

Case No: CRIMINAL APPEAL NO. 04 of 2005 With JAIL PETITION NO. 10 OF 2004

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Mohammad Nazrul Islam,Mr. Karunamoy Chakma,,

Citation: 4 LNJ AD (2015) 37

Case Year: 2015

Appellant: Anarul @ Anarul Huq

Respondent: The State

Subject: Burden of Proof,

Delivery Date: 2012-01-05


APPELLATE DIVISION
(CRIMINAL)
 
Md. Muzammel Hossain, CJ
Abdul Wahhab Miah, J
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J.
Muhammad Imman Ali,J
Muhammed Mamtaz Uddin Ahmed, J.
Judgment
5.1.2012
}
}
}
}
}
 
Anarul @ Anarul Huq
. . .Appellant
(in both the cases)
-Versus-
The State
. . . Respondents
(in both the cases)
 
 
Nari-O-Shishu Nirjaton Daman Ain (VIII of 2000)
Section 11(ka)
Evidence Act (I of 1872)
Sections 8 and 106
According to the prosecution the victim was killed by her husband and other relatives at their house and then her dead body was kept by the side of the railway track. The post-mortem report supported the prosecution version that Ranjina was beaten to death with blunt weapons rather the accuseds taken a false plea that the victim died of sudden pain in chest. In the absence of any explanation coming from the husband side it was none other than the husband is responsible for death of his wife. But it appears that all of the prosecution witnesses failed to prove that the convict-appellant demanded dowry at the time of causing death of the victim Ranjina. It also appears that the dead body of the victim was found by the side of the railway track not in the house of the appellant. Since it is wife killing case the onus is upon the appellant to disprove that the victim was not killed by him.         … (10)

Penal Code (XLV of 1860)
Section 302
Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000)
Section 11 (Ka)
The judgment and order of the High Court Division having been passed on proper assessment and consideration of material evidence on record, there is no illegality or infirmity in the impugned judgment and order dated 12.06.2008 so far as it relates to the murder of the victim Ranijina, calling for any interference by this Court. But we are of the view that the prosecution miserably failed to prove the case of dowry. So no case was proved under Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 rather it has proved the case of murder under Section 302 of the Penal Code. As such we are of the view that the sentence should be altered to imprisonment for life under Section 302 of the Penal Code instead of death under Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.                             … (11)
 
For the Petitioner (in both the cases): Mr. Mohammad Nazrul Islam, Senior Advocate, instructed by Mr. Mohammad Ali, Advocate-on-Record.
For the Respondent (in C. A. 04 of 2005): Mr. Karunamoy Chakma, Deputy Attorney General, instructed by Mr. Md. Zahirul Islam, Advocate-on-Record.
For the Respondent (in Jail Petition No. 10 of 2004): None Represented.

CRIMINAL APPEAL NO. 04 of 2005 With JAIL PETITION NO. 10 OF 2004
 
JUDGMENT
 Md. Muzammel Hossain, CJ:

This criminal appeal at the instance of the appellant by leave is directed against the judgment and order dated 24.03.2004 passed by a Division Bench of the High Court Division in Death Reference No.08 of 2002 along with Criminal Appeal No.603 of 2002 and Jail Appeal No.141 of 2002 accepting the Death Reference-in-part confirming the death sentence of the condemned prisoner-appellant-Anarul @ Anarul Hoq and rejecting the same in respect of two other condemned prisoners finding them not guilty and acquitting them and thus allowing the criminal appeal and the Jail Appeal-in-part.
 
The prosecution case, in brief, is that the informant Md. Rahimuddin, father of the victim-Ranjina Begum lodged an ejahar stating, interalia, that Ranjina Begum was given in marriage to the appellant on 12.11.1999; that the house of the appellant is about 5/7 miles away from the house of the informant; that the appellant demanded dowry from the wife of Ranjina, which she could not meet and as a result she was driven out from the house of the appellant, by the appellant and his brothers and mother; thereafter there was a salish over the matter in presence of the local Union Parishad Chairman and according to the advice of the Chairman, the victim Ranjila was sent back to the house of the appellant; that on 26.02.2002 the informant, father of the victim heard from the local people that a dead body of woman was lying by the Railway Lines and after hearing the same the informant and his relatives went there and saw the dead body of the victim Ranjina with injuries on her person. He came to learn that the accused Anarul with the help of other accused persons killed his daughter for dowry and left the dead body by the side of the railway track and ultimately over the said occurrence the informant made a written complaint to the Magistrate on 05.03.2000 on the allegation that he tried to lodge an FIR with the G.R.P. Police but they being influenced by the accused persons did not record the same, for which, he was compelled to make the complaint.
 
The defence case as revealed from the trend of cross-examination is that after marriage the victim could not adjust with her husband, the appellant; that as she did not like him, she came back to her father's house and then she was compelled to go back to her husband's house again on the mediation of the local Chairman, but still she could not adjust with her husband that means she did not like him and she committed suicide and the appellant and others have been implicated falsely on the allegation of murder of the victim, for dowry by assault.
 
In this case eight P.Ws. were examined on behalf of the prosecution but none was examined on behalf of the defence. The appellant pleaded not guilty at the time of his examination under Section 342 of the Code of Criminal Procedure. It is stated that the alleged occurrence took place on 26.02.2002 on the night following and the FIR was lodged on 28.02.2002, so there is chance of embellish-hment of the prosecution case and moreover there is no specific date of demand of dowry by the appellant and there is no mention of any witness in the FIR as to seeing and knowing about the occurrence or demand of dowry.
 
The Nari-O-Shishu Nirjatan Daman Tribunal, Nilphamari (wrongly written as Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Nilphamari) by the judgment and order dated 16.03.2002 convicted the accused-appellant Anarul @ Anarul Hoq under Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentenced him to death and that death would be executed by hanging by the neck till the death subject to the confirmation of death by the High Court Division and also to pay a fine of Tk.10,000/- in default to suffer rigorous imprisonment for six months more.
 
Being aggrieved by the aforesaid judgment and order dated 16.03.2002 passed by the Nari-O-Shishu Nirjatan Daman Tribunal, Nilphamari the appellant along with two other accused preferred appeal being Criminal Appeal Nos.603 of 2002 before the High Court Division. This criminal appeal was heard along with Death Reference No.08 of 2002 and Jail Appeal No.141 of 2002. A Division Bench of the High Court Division by the impugned judgment and order dated 02.05.2004 accepted the Death Reference-in-part confirming the sentence of death in respect of the present appellant.
 
Being aggrieved by the impugned judgment and order dated 02.05.2004 passed by the High Court Division, the present appellant preferred Criminal Petition for Leave to Appeal No.164 of 2004 before this Court.
Leave was granted to consider the following grounds:
  1. Because that the High Court Division misconstrued the provision of Section 11(ka) of the Nari-O Shishu Nirjatan  Daman Ain, 2000 and illegally applied the same in awarding death sentence to the petitioner-appellant, although it has not been proved at all that the alleged killing took place for  Jautuk (dowry) and even demand of the same has not been proved.
  2. Because there is no evidence warranting sentence of death to the petitioner-appellant in view of the evidence of the doctor P.W.7, Farhad Alam who clearly deposed that the Medical Board holding post mortem of the victim's dead body. Could not come to a definite opinion as to whether the death was suicidal or homicidal in nature and the High Court Division misconstrued and misenterpreted the most vital and only evidence in this case namely, result and opinion of the post mortem examination.” 

Mr. Muhammad Nazrul Islam, the learned Advocate has appeared on behalf of the accused-appellant submits that the High Court Division misconstrued the provisions of Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain,2000 and illegally applied the same in affirming the death sentence to the appellant and dismissing the appeal although it has not been proved at all that the alleged killing took place for jautuk (dowry) and demanding for joutuk has not been proved. He then submits that there is no evidence warranting sentence of death to the appellant in view of the evidence of the doctor P.W.7-Farhad Alam who clearly deposed that the Medical Board holding post mortem of the victim's dead body could not come to a definite opinion as to whether the death was suicidal, accidental or homicidal in nature and the High Court Division misconst-rued and misinterpreted the most vital and only evidence in this case, namely, "result and opinion of the post mortem examination" and as such the impugned judgment and order passed by the High Court Division is liable to be set aside. Alternatively without any prejudice to his earlier submission the learned Advocate further submits that since the prosecution failed to prove the demand of dowry, no case under Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain,2000 was proved beyond reasonable doubt and the sentence of death penalty be commuted to life imprisonment or to imprisonment for lesser term.
 
Mr. Karunamoy Chakma, the learned Deputy Attorney General appearing on behalf of the State submits that there is no illegality in the impugned judgment and order passed by the High Court Division in affirming the death reference and dismissing the criminal appeal and the jail appeal which were heard and disposed of analogously.
 
We have heard the learned Advocates appearing on behalf of both the parties, perused the judgment and order passed by the Tribunal, the impugned judgment and order passed by the High Court Division and also other materials available on record. On perusal of the records it appears the informant Rahim Uddin as P.W.1, father of the victim who stated in his examination-in-chief that his daughter was sent back to his house after assaulting her on demand of dowry and after settlement the matter by the local chairman he sent his daughter to the house of the accuseds and after a few days on the date of occurrence he found his daughter died following severe torture and his evidence was corroborated by other witnesses. P.W.1 was corroborated by P.Ws.2, 3, 4 and 6 in material particulars. The High Court Division having considered the material evidence of witnesses and the post-mortem report found that in the post-mortem report, the medical board found 12 injuries on the person of the victim. P.W.7-Dr. Farhad Alam proved the post-mortem report of 12 injuries, 8 haematomas are found on the head and legs. The medical board opined that all those injuries were caused by blunt weapons and the board also opined that death was due to haemerrhage and shock as a result of above mentioned injuries which were ante-mortem in nature. Admittedly, there is no eye witness of the occurrence. The case entirely rests upon circumstantial evidence. It was proved by the prosecution beyond doubt that Ranjina was living with her husband just before her death. According to the prosecution the victim was killed by her husband and other relatives at their house and then her dead body was kept by the side of the railway track. The postmortem report supported the prosecution version that Ranjina was beaten to death with blunt weapons rather the accuseds taken a false plea that the victim died of sudden pain in chest. In the absence of any explanation coming from the husband side it was none other than the husband is responsible for death of his wife. But it appears that all of the prosecution witnesses failed to prove that the convict-appellant demanded dowry at the time of causing death of the victim Ranjina. It also appears that the dead body of the victim was found by the side of the railway track not in the house of the appellant. Since it is wife killing case the onus is upon the appellant to disprove that the victim was not killed by him.
 
From the aforesaid discussions and findings, we are of the view that the judgment and order of the High Court Division having been passed on proper assessment and consi-deration of material evidence on record, there is no illegality or infirmity in the impugned judgment and order dated 12.06.2008 so far as it relates to the murder of the victim Ranijina, calling for any interference by this Court. But we are of the view that the prosecution miserably failed to prove the case of dowry. So no case was proved under Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 rather it has proved the case of murder under Section 302 of the Code of Criminal Procedure. As such we are of the view that the sentence should be altered to imprisonment for life under Section 302 of the Code of Criminal Procedure instead of death under Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
 
In the premises, Criminal Appeal No. 04 of 2005 with Jail Petition No.10 of 2004 are hereby dismissed with modification of sentence. The accused-appellant Anarul @ Anarul Hoq is convicted under Section 302 of the Code of Criminal Procedure and sentenced him to suffer regorous imprisonment for life. 
 
Ed.

Reference: 4 LNJ AD (2015) 37