Ibraim Vs. The State [4 LNJ (2015) 256]

Case No: Criminal Appeal No. 413 of 2000

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mr. S.M. Mahbubul Islam,Mr. Mohammad Shawkatullah Khan,Mrs. Sakila Rowshan,Mrs. Sharmina Haque,Mr. Md. Showardi,,

Citation: 4 LNJ (2015) 256

Case Year: 2015

Appellant: Ibraim

Respondent: The State

Subject: Legal Evidence,

Delivery Date: 2014-04-16


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Md. Ziaul Karim, J.
And
Ashish Ranjan Das

Judgment on
16.04.2014
}
}
}
}
Ibraim
...Convict-appellant
-Versus-
The State
. . .Respondent
 
 
 
Evidence Act (I of 1872)
Sections 3, 59 and 101,
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.
  1. The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
  2. The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
  3. 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.
  4. There must be clear and unequivocal proof of the corpus delicit. . . . (40)
 
Evidence Act (I of 1872)
Section 134
The word "corroboration” is derived from the Latin word” robust" meaning "strength". It means strengthening or confirming something. There is no Rule of practice that there must in every case be corroboration before a conviction. The Rule of corroboration is a Rule of Prudence which looks for some corroboration, either direct or circumstantial or both connecting the person indicated for commission of crime imposing penalty upon him. Corroboration of the testimony of a solitary witness as a Rule of Prudence is normally demanded for the satisfaction of the Court that the testimony has a ring of truth around it and the person arraigned of the offence has not been falsely implicated. . . . (45)
 
Evidence Act (I of 1872)
Section 134
It is absolutely necessary for the interest of justice that at least the victim’s statement must be inconformity with the probability and in a case like this the evidence of solitary witness calls for corroboration as a Rule of prudence. It is pertinent to point out that such corroboration is absent in this case. . . . (44)
 
Code of Criminal Procedure (V of 1898)
Section 161
Inordinate delay in recording the statements of the witnesses by the investigating Officer under Section 161 of the Code renders their evidence shaky. . . . (47)
 
Evidence Act ( I of 1872)
Section 3
When there is a background of enmity and the witnesses are chance witnesses and not natural witnesses and further natural and independent witness were not produced, it is unsafe to rely on the evidence of chance witnesses to make a nexus between the accused and the crime. . . . (53)

Crime like acid throwing is shocking in nature and also, revolting. The Crime is against Society and humanity, but the prosecution convicted the accused merely on suspicion that the accused committed such crime. There cannot be conviction for such crime on mere suspicion or presumption. . . . (55)
 
Evidence Act (I of 1872)
Section 3
Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence. . . . (55)

Evidence Act ( I of 1872)
Section 3
Law is now well settled that suspicion or doubt however strong it might be cannot take place of evidence or there be slightest doubt as to the involvement of the accused in the crime, he cannot be convicted. . . . (56)
 
Moslemuddin and others Vs. State 1 BCR (1981)-70; Zafar and others Vs. The State, 14 BLD 280; Nausher Ali Sarder and others, Vs. The State, BCR 1987(AD) 376; Abdul Hai Sikder and another Vs. The State, 43 DLR (AD) 95; Ataur Rahman and others Vs. The State, 43 DLR(HC) 87; Abdul Quddus Vs. The State, 43 DLR (AD) 234; Bangladesh (State) Vs. Paran Chandra Baroi, 1986 BCR (AD) 225; Vijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel and others, 2004 Criminal 413 Supreme Court of India; State Vs. Al Hasib Bin Jamal alias Hasib and five others, 59 DLR 653; Abul Kalam Azad alias Ripon (Md) Vs. State, 58 DLR(AD) 26; Sanwar Hossain Vs. State 45 DLR-489; Bangladesh Vs. Paran Chandra Baroi, 1986 BCR(AD) 225; Muslimuddin and others Vs. State, 38 DLR (AD)311; Haji Md. Jamal Uddin  Hossain and others Vs. State, 1994 BLD-33; State Vs. Mokbul Hossain, 1986 BLD 34=37 DLR 156; Nurul Haque Vs. State,1982 BCR 332; Moinullah and another Vs. State, 1988 BLD 100=40 DLR 443; State Vs. Babul Hossain, 52 DLR-400; Abdul Haq and others  Vs. The State, 14 BLT 485; Fazu alias Fazlur Rahman Vs. The State, 1 BLC 558; Rekatfullah Vs. The State, 13 DLR-750, AIR 1921(PC)69 and Safder Ali Vs. Crown, 5 DLR(FC) 107 ref.
 
Mr. S.M. Mahbubul Islam, Advocate with
Mr. Mohammad Shawkatullah Khan, Advocate,
. . . For the convict-appellant

Mrs. Sakila Rowshan, D.A.G. with
Mrs. Sharmina Haque, A.A.G. and
Mr. Md. Showardi A.A.G.
. . . For the State-respondent

Criminal Appeal No. 413 of 2000

JUDGMENT
Syed Md. Ziaul Karim, J:
 
By this appeal, convict appellant has challenged the legality and propriety of the judgment and order of conviction and sentence dated 30-01-2000 passed by learned Judge of Nari-O-Shishu Nirjatan Damon Bishe413sh Adalat, Narsingdi (briefly as Adalat), in Nari-O-Shishu Case no. 27 of 1998 convicting the appellant under Section 5(L) of the Nari-O-Shishu Nirjatan (Bishesh Bidan)Ain, 1995 (briefly as Ain 1995) and sentencing him under Clause (D) of the Ain 1995 to suffer imprisonment for life and also to pay a fine of Tk. Five thousand in default to suffer rigorous imprisonment for one year more and also convicted under section 5(P)  of the Ain 1995 and sentencing him under Clause (A) of the Ain, 1995 to suffer rigorous imprisonment for fourteen years and also to pay a fine of Tk. three thousand in default to suffer rigorous imprisonment for six months more with a direction to run both the sentences concurrently.

The prosecution case as projected in the first information report (briefly as FIR) and unfurled at trial are that Sufia Begum (since victim) (PW.2) was married with Arju Mia (PW.3) before 14/15 years of the occurrence. During their wedlock three child born and she used reside in her conjugal home. During subsistence of their marriage her husband married one Fatema  sister of accused Ibrahim for the second time who failed to stay at her conjugal home as she (victim) do not allow her to stay at her conjugal home jointly, for which accused Ibrahim threatened her. On 06-04-1996 at 9:00 p.m. she came out from her dwelling hut for natural call and sat under a date-tree situated at the north –east corner of her dwelling hut. At then, accused hurled acid upon her from back causing burn injuries to her head, face, shoulder, chest and back. On her alarm in-law’s including locals rushed to the scene to whom she disclosed the facts. Then she was taken to Palash hospital but due to her critical condition she was shifted  to Dhaka Medical College hospital for better treatment. Even then she sustained permanent disfiguration at her head and face. With these allegations prosecution was launched by lodging an FIR by her cousin sister’s husband Md. Sirajul Islam as informant (PW.1) which was recorded as Palash P.S. Case no. 06(4) of 1996.

The Police after investigation submitted charge-sheet under Section 326 A of the Penal Code accusing FIR named accused Ibrahim.

Eventually, the accused was called upon to answer the charge under Section 5(L)(P) of the Ain, 1995 to which he pleaded not guilty and claimed to be tried. In course of trial the prosecution in all examined eleven witnesses and one witness was tendered out of twelve cited witnesses. The defence examined none. After closure of the prosecution case, accused was again examined under Section 342 of the Code of the Criminal Procedure(briefly as the Code), again he pleaded not guilty but led no evidence in defence.

The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication; it was divulged in defence that due to internal feud between them he was falsely implicated. It was further revealed that PW. 3 conspired to hurl acid upon victim but out of enmity accused appellant was implicated.

After trial the learned Judge convicted the appellant as aforesaid as holding :
  1. The prosecution successfully proved the charge  beyond all reasonable doubt;
  2. There are consistent and corrobor-ative evidence against the accused in respect of commission of such crime.
 The learned Advocate appearing for the convict-appellant seeks to impeach the impugned judgment and order of conviction and sentence on five fold arguments:
 
Firstly:  The learned Judge tried the case without jurisdiction inasmuchas he is not empowered under section 17 of the Ain, 1995 to try such case as the Police submitted its report not under Ain 1995 but under Penal Code.
Secondly: Findings in respect of sentence of the learned Judge is not supported by legal evidence;
Thirdly: The recognition of the appellant from back in moon-light was not probable. In support of his contentions he refers the case of Moslemuddin and others vs. State 1 BCR (1981)-70 held:
"Recognition of accused persons being improbable, speculative and of an uncertain character, no reliance can be placed on such recognition for convicting accused persons- Omission to state recognition to the Investigating Officer amounts to material contradiction-Evidence unworthy of credibility. "
Fourthly:   Delay in examination of the prosecution witness who rush to the scene soon-after the occurrence were examined after long lapse of time which render their evidence shaky. In support of his contentions he refers the case of Zafar and others vs. The State 14 BLD 280 held:
"Inordinate delay in recording the statement of witnesses by the I.O. under section 161 Cr.P.C. renders their evidence shaky.
Fifthly: The judgment and order of conviction and sentence based on misreading and non-consideration of the evidence on record which cannot be sustained in the eye of law.
 
The learned Deputy Attorney General appearing for the State-respondent opposes the appeal and submits that the victim Sufia Begum categorically narrated the entire episode and she rightly recognised the accused in moon-light. She adds that such recognition is probable and acceptable. In support of her contentions she refers the case of Nausher Ali Sarder and others vs. The State BCR 1987(AD) 376 held:
 
"(a) Recognition of the accused by moon-light.
The bamboo clump by the side of which the village path lay was found to be 100 cubit from the dwelling hut of Golam Ali from where he claimed to have heard the alarm of Elias who sought his help stating that he was being killed by these three persons. Golam Ali is found to be sickly but he is not suffering from any illness; as such his physical condition could hardly stand in the way of his recognising known persons in the moon-light, and as the incident took place not in the bamboo clump but on the path recognition by moon-light was quite possible."
 
She further submits that the victim was under treatment for about two months and to that effect respective doctors issued the certificate. She submits that although PW. 2 is a sole witness in this case but she recognized the assailant so her evidence can be believed for convicting the accused. In support of her contentions she refers the case of Abdul Hai Sikder and another vs. The State 43 DLR (AD) 95 held:

" Number of witnesses-Conviction of the appellants can safely be based on the solitary evidence of the eye witness PW 1. His evidence is full, complete and self-contained. It may not have received corroboration from other witnesses, but it stands fully corroborated by the circumstances of the case and the medical evidence on record. It fullness and complete-ness are enough to justify the conviction. "
 
On identical point she refers the case of Ataur Rahman and others vs. The State 43 DLR(HC) 87 held:
      
        " The evidence of an injured person carries much weight since the injured person does not usually allow the real culprit to escape and falsely implicate an innocent person.

         -In the matter of observation, perception and memorisation, different witnesses differ from each other. So is weight to be given to those which are of consensus as to the substance of their evidence. The standard of rural witness should not be comparable to that of urban witness in the matter of exactitude and consistency. Consideration in narration can not militate against the veracity the cure of testimony provided that there is an impression of truth and conformity in substantial fabric of the testimony so delivered
         -It is settled principle that when injured witness marked assailants it cannot be said that he would give up real assailant and falsely implicate person with whom there was no enmity.
         -Quality and not quantity of evidence is acceptable. There is no impediment in law in conviction being based on the testimony of single witness if it is honest and trustworthy, veracity of eye-witness cannot be doubted unless reason for false implication is given.
 
She also refers the case of Abdul Quddus vs. The State 43 DLR (AD)234 held:

         "The testimony of the solitary eye witness could not be shaken in any manner by the defence in cross-examination for which it is difficult to disbelief her testimony as she narrated the prosecution case in details. Even a child witness can be relied if he/she is capable of understanding and replying the question intelligently.
 
Medical evidence is only corroborative in nature- Ocular evidence of the eye witness which substantially corroborates the major injuries on the person of the deceased must be accepted. "
 
She lastly submits that the learned Judge after considering the entire consistent evidence of the witnesses rightly convicted the accused which calls for no interference by this Court.
 
In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
 
Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
 
P.W.1, Md. Sirajul Islam is the informant of this case. He is cousin sister’s husband of victim. He virtually heard the occurrence from PW. 2. He deposed that on 06-04-1996 at 9:00 p.m. the occurrence took place; his sister-in-law victim Sufia Begum was married with Arju Mia before 15/16 years of the occurrence. Before 3/4 years Arju married one Fatema for the second time who urged to come to her conjugal home but resisted by first wife Sufia and due to such enmity brother of Fatema hurled acid upon Sufia. On the date and time of occurrence victim Sufia came out for natural call. At then, the accused Ibrahim hurled acid upon her back causing burn injuries at head, back, chest, shoulder, and face. On her alarm locals rushed to the scene to whom Sufia disclosed such recognition to the effect that she recognised Ibrahim by moon-light. Then she was taken to Palash hospital. Later at the advise of doctor she was shifted to Dhaka Medical College hospital wherein she was under treatment for about one month. On 14-04-1996 he lodged the FIR which he proved it as Exhbt. 1 and his signature on it Exbt. 1/1. The investigating Officer (briefly as I.O.) on 15-04-1996 seized different wearing apparels of victim.
 
In cross-examination he stated that at the date and time of occurrence he was in Dhaka.  On 08-04-1996 he had a talk with Sufia for the first time then she disclosed the name of Ibrahim. He could not remember whether he stated in the FIR that Sufia recognised the accused at moon-light. Soon-after the occurrence Sufia disclosed about such recognition to Mozammel Haq, Benu Mia, Sultanuddin, Alauddin, Haider Hossain, Abdul Karim and others to whom he had a talk on 12-04-1996. He denied the suggestion that Arju Mia being dissatisfied with his first wife Sufia, hurled acid and since then he was absconding and instituted false case against the accused Ibrahim.
PW. 2  Sufia Begum is the victim. She deposed that informant is her sister’s husband and Arju Mia is her husband.  On 06-04-1996 at 9:00 p.m. she came out for natural call and sat under a date-tree. At then, accused Ibrahim hurled acid upon her from back causing burning injuries at her head, face, shoulder, chest and back. She recognised the accused by moon-light and voice. On her alarm her mother-in-law, uncle-in-law and other locals rushed there to whom she disclosed that Ibrahim hurled acid. At then, she was taken to Palash hospital as her condition was so critical, then she was shifted to Dhaka Medical College hospital wherein she was under treatment for about one month. Before 14/15 years of the occurrence she was married with Arju Mia. Before 2/3 years her husband married Fatema sister of accused Ibrahim  for the second time. Ibrahim Mia tried to send her to her conjugal home which was resisted by her(PW 2) and her husband for which Ibrahim threatened them. By acid different parts were permanently disfigured.

In cross-examination she stated that Arju Mia married for the second time without her consent. After receiving injuries by acid she was not senseless. On her alarm other locals rushed to the scene but her husband do not turn up. After two days of the occurrence she disclosed the facts to the informant. She denied the suggestion that at the time of occurrence there was dark and she did not see Ibrahim. She also denied that Arju Mia hurled acid upon her.

PW. 3 Arju Mia husband of the victim and cousin of the informant.He deposed that on 06-04-1996 at 9:00 p.m. he was in the market. Having had heard the incident he rushed to the house and heard the occurrence from his wife that Ibrahim hurled acid upon her causing  burning injuries at her face, chest etc. She was taken to Palash hospital. Thereafter she was shifted to the Dhaka Medical College hospital for treatment. Ibrahim is the brother of his second wife. For the cause of enmity Ibrahim hurled acid upon her.

In cross-examination he stated that at the night of occurrence there was dark. He does not ask how Sufia identified the accused and he was not examined by I.O. and he never meet with I.O.  He did not come with Sufia to Dhaka for her treatment. He denied the suggestion that after the incident he was absconding.

PW. 4 Benu Mia, PW. 6 Mozammel Haq are the locals seizure list witnesses. They deposed that they heard the occurrence and found victim Sufia sustaining injuries by acid. In their presence the I.O. seized different wearing apparels, PW- 4 proved the same as material Exhbts. (I-IV) and seizure list as Ehbt. 2 and his signature on it as Exhbt. 2/1. At the time of seized Arju Mia husband of the victim was not present. 
PW. 5 Sultanuddin, PW. 8 Aftabuddin are the locals witnesses they heard the occurrence.


In cross-examination they stated that they came to know that Ibrahim hurled acid upon the victim Sufia.

PW. 7 Momena Khatun is the mother –in-law of the victim. She deposed that on hearing the alarm she came out and found Sufia was injured by acid. He heard that Ibrahim hurled acid.

In cross-examination she stated that on the night of occurrence there was dark.

PW.9 Abdul Karim Sarder was tendered by the prosecution. However in cross-examination he stated that he went to Sufia in the hospital.

PW.10 Dr. Abdul Matin. He examined the victim Sufia Begum. He deposed that Sufia was under treatment since 06-04-1996 to 02-06-1996 sustaining injuries at her head, neck, chest and back. He issued the injury certificate on 08-04-1999, he proved the discharge certificate as Exhbt. 6.

In cross-examination he denied the suggestion that being influenced he issued certificate.

PW.11 S.I. Md. Solaiman Ahmed, he deposed that on 14-04-1996 he was attached with Polash Police Station. He was entrusted with the case for investigation.  He also filled up the form of FIR which he proved it at Exhbt. 3 and his signature on it 3/1. He visited the place of occurrence. He prepared the sketch map and index which he proved it as Exbts. 4 and 5 respectively and his signatures on it Exhbts.4/1 and 5/1 respectively. He recorded the statements of the witnesses under Section 161 of the Code. He prepared seizure list of the wearing apparels of the victim on 15-06-1996 which he proved it as Exhbt.2 and his signature on it 2/3.  

After investigation he submitted charge-sheet under Section 326A of the Penal Code.

In cross-examination he stated that on 15-04-1996 he visited the P.O.. On 08-05-1996 he examined Arju Mia. On 23-04-1996, 30-04-1996, 08-05-1996, 16-05-1996, 24-05-1996, 01-06-1996, 08-06-1996, 11-06-1996, 28-06-1996, and 10-08-1996 he visited the P.O. but find no witness of the occurrence. On 21-07-1996 he recorded the statements of the victim and Benu Mia. He recorded the statement of Sultan Ahmed and Aftabuddin on 02-08-1996 and 08-05-1996 examined Arju Mia. He denied the suggestion that he submitted the perfunctory charge-sheet without proper investigation.

PW.12 Dr. A.J.M. Saleque. He deposed that the victim  was admitted to his ward no. 35A and he also held a surgical operation upon the victim.

In cross-examination he denied the suggestion that the discharge certificate was not correct one.

These are all of the evidence on record adduced by the prosecution to prove the charge.

On going to the materials on record it transpires that the prosecution in all produced twelve witnesses. Of them examined eleven witnesses and one witness namely PW.9 was tendered by the prosecution.

PW. 1 is the informant and cousin sister’s husband of victim (PW. 2). PWs. 4-8 were the local witnesses they heard the occurrence from PW. 2. PW.10, 11,12 are the official witnesses. Of them PWs.10 and 12 are the doctors and examined the victim and PW. 11 investigated the case and submitted charge-sheet accusing accused.
 
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.
  1. The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
  2. The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
  3. 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.
  4. There must be clear and unequivocal proof of the corpus delicit.
  5. The hypothesis of delinquency should be consistent with all the facts proved.
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.

It appears that the prosecution case absolutely rest upon the evidence of PW. 2 Sufia Begum. She stated that on 06-04-1996 at about 9:00 p.m. she came out from her dwelling hut for natural call and sat under a date-tree north east of their hut. Then accused Ibrahim hurled acid upon her from back causing burning injuries her chest, face, back and shoulder. She recognised the accused by the moon-light and voice. On her alarm her mother-in-law and uncle-in-law aswellas the other locals rushed there to whom she disclosed about the facts. She further stated that her husband Arju Mia married one Fatema as second wife, who could not reside at her conjugal home due to resistance made by her.

In cross-examination she stated that at the first instance her husband did not come rather he came after some-time. Other witnesses namely PW.1, PWs. 3-8 were examined to corroborate the  evidence of PW. 2. We find that PW.2 asserted that she recognised the accused by moon-light but PW. 3 Arju Mia, PW.7 Momena Khatun categorically stated in the cross-examination that at the night of occurrence there was dark. Therefore recognition of accused Ibrahim by the moon-light was not corroborated by the vital witnesses.

Moreover, the victim Sufia Begum sat under a date-tree at 9:p.m. and it was alleged that the accused Ibrahim hurled acid from back. So in our view the recognition of accused Ibrahim was improbable, speculative and of an uncertain character. Therefore, we failed to discover that the evidence of solitary witness PW. 2 furnish any corroboration by any other independent or impartial evidence.

The word "corroboration " is derived from the Latin word " robust" meaning "strength". It means strengthening or confirming something. There is no Rule of practice that there must in every case be corroboration before a conviction. The Rule of corroboration is a Rule of Prudence which looks for some corroboration, either direct or circumstantial or both connecting the person indicated for commission of crime imposing penalty upon him. Corroboration of the testimony of a solitary witness as a Rule of Prudence is normally demanded for the satisfaction of the Court that the testimony has a ring of truth around it and the person arraigned of the offence has not been falsely implicated.

Where the evidence of the victim PW.2, Sufia Begum forms the only witness on which the Court has to act upon. It is absolutely necessary for the interest of justice that at least the victim’s statement must be inconformity with the probability and in a case like this the evidence of solitary witness calls for corroboration as a Rule of prudence. It is pertinent to point out that such corroboration is absent in this case.
It is pertinent to point out that the occurrence of the instance case took place on 06-04-1996 but the first information report was lodged on 14-06-1996. PW. 1 the Investigating Officer visited the P.O. for the first time on 15-04-1996. He categorically stated that on 23-04-1996, 30-04-1996, 16-05-1996, 24-05-1996, 01-06-1996 he visited the P.O. but no witness happened there for his examination under Section 161 of the Code. Therefore, he examined PW. 2, PW. 3, PW. 4, PW. 5, PW. 8 on 21-07-1996, 08-06-1996, 27-07-1996, 02-08-1996, 02-08-1996 respectively. So in our view inordinate delay in recording the statements of the witnesses by the investigating Officer under Section 161 of the  Code renders their evidence shaky.

In the case of Bangladesh (State) Vs. Paran Chandra Baroi 1986 BCR(AD)225  held:
The long delay in examining the material witnesses cast a doubt on the whole prosecution case.”
 
In the case of Vijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel and ors. 2004 Criminal 413 Supreme Court of India held:

The delay in questioning the witnesses by investigating officer is a serious mistake on the part of the prosecution. So the witnesses are not reliable.”
 
In the case of State Vs. Al Hasib Bin Jamal alias Hasib and five others 59 DLR 653 held:

   “Inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration.”
 
Even then there are serious contra-dictions of the statements of witnesses to the Investigating Officer and testimony before the Court which makes their evidence unreliable. In the case of Abul Kalam Azad alias Ripon (Md) Vs. State 58 DLR(AD) 26 held:

When witness is contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted.”
 
In the case of Sanwar Hossain Vs. State 45 DLR-489 it was held inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration. In the case of Bangladesh Vs. Paran Chandra Baroi, 1986 BCR(AD) 225 it was held that the long delay in examining the material witnesses casts a doubt on the whole prosecution case. In the case of Muslimuddin and others Vs. State, 38 DLR (AD)311 evidence of P.W. 3 who claimed to have recognised the assailants was not relied upon as her statement, which could have been recorded on the day following the incident, was recorded after 34 days. Same view was taken in the cases of Haji Md. Jamal uddin  Hossain and others Vs. State, 1994 BLD-33, State Vs. Mokbul Hossain, 1986 BLD 34=37 DLR 156, Nurul Haque Vs. State,1982 BCR 332, Moinullah and another Vs. State,1988 BLD 100=40 DLR 443 and State Vs. Babul Hossain, 52 DLR-400. In view of the above settled principle of law the evidence of P.W. 2, should not be relied upon and the same is to be left out of consideration.
 
Moreover, it is the definite case of the prosecution that there was an internal feud between the parties and when there is a background of enmity and the witnesses are chance witnesses and not natural witnesses and further natural and independent witness were not produced, it is unsafe to rely on the evidence of chance witnesses to make a nexus between the accused and the crime. So we hold that there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime of throwing acid. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.
 
It is true that crime like acid throwing is shocking in nature and also, revolting. The Crime is against Society and humanity, but the prosecution convicted the accused merely on suspicion that the accused committed such crime. There cannot be conviction for such crime on mere suspicion or presumption. The commission of murder must be proved. The presumption cannot take the place of positive evidence, (1970 P. Crl. L.J.-166).
 
It further appears to us that the Court below without any legal evidence convicted the accused in moral view. Legal evidence in a criminal trial is the evidence of the incrimin-ating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence.
 
The accused was convicted merely on suspicion without any legal evidence. To that end in view, law is now well settled that suspicion or doubt however strong it might be cannot take place of evidence or there be slightest doubt asto the involvement of the accused in the crime, he cannot be convicted. With this regard reliance are being placed in the cases of Abdul Haq and others  Vs. The State 14 BLT 485, Fazu alias Fazlur Rahman Vs. The State 1 BLC 558, Rekatfullah Vs. The State 13 DLR-750. It is further held in the case reported in AIR 1921(PC)69, that the decision of the Court must rest upon legal ground established by legal testimony from the prosecution.
 
Moreso in all respect, the convict is also entitled to benefit of doubt. In the case of Safder Ali Vs. Crown 5 DLR(FC) 107 held:

In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt”.
 
So, there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.
 
Moreover, the impugned judgment and order of conviction and sentence in its entirety is not well founded in the facts and circumst-ances of the case. Therefore, the submissions advanced by the learned Counsel for the defence prevails and appears to have a good deal of force. On the contrary we have gone through the decisions as referred by the  learned Deputy Attorney General. The facts leading to those cases are distinguishable to that of the instant case. So the same have no manner of application in the instant case. In such circumstances we are also unable to accept her submissions.

In the light of discussions made above and the preponderant judicial views emerging out of the authorities refer to above, we are of the view that the impugned judgment and order of conviction and sentence dated 30-01-2000 suffers from legal infirmities which calls for interference by this Court. Thus the appeal having merit succeeds.

In view of foregoing narrative the appeal is allowed. The impugned judgment and order of conviction and sentence dated 30-01-2000 passed by learned Judge of Nari-O-Shishu Nirjatan Daman Bishes Adalat, Narshingdi, in Nari-O-Shishu Case no. 27 of 1998 is hereby set aside.

The convict appellant is acquitted from the charge. Let the appellant Ibrahim be set at liberty if not detained in any other case.

The Office is directed to send down the records at once.
 
Ed.