Jharna Begum and others Vs. The State, 1 LNJ (2012) 643

Case No: Criminal Appeal No. 4282 of 2009

Judge: Md. Abu Zafor Siddique,

Court: High Court Division,,

Citation: 1 LNJ (2012) 643

Case Year: 2012

Appellant: Jharna Begum and others

Respondent: The State

Delivery Date: 2012-09-09

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Md. Abu Zafor Siddique, J.
 
Judgment
09.09.2012
 
 
Jharna Begum and others
...Accused-Appellants.
Vs.
State
...Respondent
 
Nari-o-Shishu Nirjaton Daman Ain (VIII of 2000)
Section 11 (ga)/30.
Code of Criminal Procedure (V of 1898)
Section 342
It appears that at the time of examination under section 342 of the Code of Criminal Procedure the trial court failed to put the incriminating evidence against the convict-appellants for the purpose of enabling them to explain the circumstance and thereby the convict-appellants have been highly prejudiced. There is no legal evidence to convict the appellants. The prosecution witnesses are almost family members of the victim. The learned Judge has not applied his Judicial mind in passing the order of conviction and sentence, as such, the same is liable to be set aside. …(22, 30 & 33)
 
Words and phrases
Chance Witness
A chance witness is one who claimed to be present at the place of occurrence at the time of occurrence when and where he is not normally expected to be present.
 
State Vs. Monu Miah and others, 54 DLR (AD) 60; Shahid Miah and another Vs. State, 60 DLR 371 and AIR 19725C 537 ref.

Criminal Appeal No. 4282 of 2009
 
Judgment
Md. Abu Zafor Siddique, J:
 
          This appeal is directed against the judgment and order of conviction and sentence dated 17/06/2009 passed by the of Nari-O-Shishu Nirjatan Daman Tribunal, No.2, Pirojpur, in Nari-O-Shishu Nirjatan Daman Case No.190 of 2007, under section 11(Ga)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (Shortly the Ain,2000) convicting the appellants under section  11(Ga)/30 of the said Ain,2000 and sentencing the appellant No.3 to suffer rigorous imprisonment for 2 years and a fine of Tk.3,000/ in default, to suffer rigorous imprisonment for 3 months and appellants No.1 & 2 to suffer rigorous imprisonment for 2 years and a fine of Tk.3,000/- in default to suffer rigorous imprisonment for 3 months more.

2.         The prosecution case, in short, is that one Most. Rosy being complainant filed a petition of complaint before the Nari-O-Shishu Nirjatan Daman Tribunal, Pirojpur, alleging inter-alia, that she got married with the appellant No.3 Md. Hossain Ahmed and appellant No.1 and 2 demanded Dowry of Tk.1,00,000/- from her father but her father refused to pay the same. Thereafter the accused persons inflicted lathi blows on different parts of her body causing injury. While the neighbours came to save her and enquired about the occurrence but she told that it was their family matter. After 10 days she herself made a petition of complaint and filed before the learned judge, Nari-O-Shishu Nirjatan Daman Tribunal-2, Pirojpur. After receipt of the petition of complaint, the learned Judge of the Tribunal directed the Upazila Education Officer to inquire into the matter. After inquiry a  report was submitted and thereafter the learned judge took cognizance and framed charge against the accused persons under section 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Ain, 2000 and the same was read over to the accused persons who pleaded not guilty and claimed to be tried in accordance with law.
 
3.     During trial the prosecution examined as many as 7 witnesses out of 8 cited witnesses in the petition of complaint while the defence examined none.
 
4.     From the trend of cross-examination of the P.Ws the defence case is that the appellants are innocent and they have been falsely implicated with ulterior motive and the so called occurrence has not been committed by the appellants.
 
5.     After hearing the parties and on consideration of the evidence and the materials on record and in view of the facts and circumstances of the case the learned trial Court came to the finding that the prosecution proved the charge beyond all reasonable doubt and accordingly, the Court convicted the accused-persons.
 
6.     Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the appellants preferred this instant appeal.
 
7.     No one appear on behalf of the State to oppose the appeal.
 
8.     Mr. Md. Abdur Razzak, the learned Advocate appearing on behalf of the appellants submits that the learned court below has misread the evidence and misinterpreted the law, thus, passed the judgment and order of conviction which is not at all tenable in the eye of law. Mr. Razzak submits that the appellants are innocent and they had been falsely implicated out of social enmity and ulterior motive. He further submitted that the alleged occurrence took place on 27-10-2007 but the petition of complaint was filed on 05-11-2008 without assigning any reason, for such delay, which creates serious doubt in the prosecution case, as such, the instant case is malafide one. He has contended that not a single independent witness was examined to support the prosecution case and all the P.Ws are close relatives of the complainant. Mr. Razzak has drawn my attention to the examination of the appellants under section 342 of the Code of Criminal Procedure and submits that the terms and conditions of examining of the accused under section 342 of the Code of Criminal Procedure has not been followed, as such, the accused appellants has been highly prejudiced. In support of his submission Mr. Md. Abdur Razzak referred the case reported in 54 DLR(AD) 60, 60 DLR(HCD) 371 and AIR 1972 (SC) 535.
 
9.     Let me now discuss the relevant evidence, other materials on record together with the attending facts and circumstances of this case as well as the provision of law to ascertain whether the Tribunal has committed any illegality or abuse of process of the law in passing the judgment and order of the conviction and sentence.
 
10.   P.W-1, Most. Rosy is the complainant and victim of the case. During her examination in chief, she supported her petition of complaint. In her cross-examination she denied all the suggestions given by the defence.
 
11.   P.W-2, Kazal Begum is a hearsay witness. She knew nothing about the occurrence and she was also the wife of the full brother of the victim.
 
12.   P.W-3, Md. Humayun Kabir is the full brother of the victim and he deposed that he knew nothing about the occurrence and he is also a hearsay witness.
 
13.   P.W-4, Mozammel Khan is the father of the victim. He is also a hearsay witness. He stated that on 27/10/2000 in the evening the informant informed him that his son-in-law demanded Tk.1,00,000/- as dowry and for that reason he tortured her at the instigation of accused Nos.2 and 3 and at that time his wife, children and other relatives were present in the house.  In his cross-examinations he denied all the suggestions given by the defence.
 
14.   P.W.-5, Babul Sk. is a Rickshaw Puller. He carried the victim on his Rickshaw. He deposed that- while the informant was going by his rickshaw disclosed that her husband tortured her on demand of dowry Tk. 1,00,000/-.
 
15.   P.W-6, Md. Younus Akon is a local businessman. He supported the prosecution case. He deposed, that while he was passing the residence of the informant he heard hue and cry, then he went into the house and found that accused No.1 tortured the informant for demand of Tk.1,00,000/- as dowry. He also stated while he was entering into the residence someone told him the accused was beating his wife on demand of dowry.
 
16.   P.W-7, Dr. Ratan Kumar Dhali is a Medical Officer of the Upazila Health complex, Nazirpur, District Pirojpur. He supported his Medical Certificate and the same was marked as Exhibit. In his cross-examination he denied the suggestions given by the defence.
 
17.   These are the evidence adduced by the prosecution.
 
18.   From the plain reading of evidence it appears to me that all the witnesses are close relatives and this facts has been corroborated by P.W.1, the victim herself. In cross examination the victim has categorically stated. “স্বাক্ষী মোজাম্মেল খান আমার পিতা, স্বাক্ষী রেবা খানম আমার বোন, স্বাক্ষী কাজল বেগম আমার ভাবী, স্বাক্ষী মিজানুর ও হুমায়ন কবির আমার ভাই। স্বাক্ষী শাহজাহান শেখ আমার প্রতিবেশী।” Though there were other neighbours but none of them came forward to depose in support of the complainant in any manner and this situation has created serious doubt in the prosecution case.
 
19.   After closing of evidence the learned Judge examined the accused appellants under section 342 of the Code of Criminal Procedure.
 
20.   I have gone through the examination of appellant No.3, under section 342 of the Code of Criminal Procedure which runs as follows :-

“প্রশ্নঃ ১। আপনি মোঃ হোসেন আহম্মেদ বিগত ২৭/১০/২০০৭ ইং তারিখ বিকাল অনুমান ৫.৩০ মিনিটের সময় পিরোজপুর থানাধীন কলাখালি সাকিনের বসতগৃহে বসিয়া আপনার স্বাক্ষী মোছাঃ রোজি বাদী সংবাদ দাতাকে তাহার পিতার নিকট হইতে ১,০০,০০০/- টাকা আনিয়া দিবার দাবী করিয়াছেন। বাদীনি তাহার পিতার নিকট হইতে যৌতুক আনিয়া দেওয়া সম্ভব নয় জানাইলে আপনি আপনার স্বাক্ষী মোছাঃ রোজী আক্তারকে মারপিট করিয়া ঘর হইতে তাড়াইয়া দেন। পি, ডব্লিউ-১ মোছাঃ রোজি আক্তার আপনার বিরুদ্ধে স্বাক্ষ্য প্রদান করেন। পি,ডব্লিউ-২, কাজল বেগম, পি,ডব্লিউ-৩ মোঃ হুমায়ুন কবির, পি,ডব্লিউ-৪ মোজাম্মেল খান, পি,ডব্লিউ-৫ মোঃ বাবুল সেখ, পি,ডব্লিউ-৬ মোঃ ইউনুছ আকন এবং পি,ডব্লিউ-৭ ডাঃ রতন কুমার ঢালী প্রত্যেকই পি, ডব্লিউ ১ বাদী সংবাদ দাতার স্বাক্ষী এবং নালিশী দরখাস্ত সমর্থন করিয়াছেন। ইহা দ্বারা আপনি নারী ও শিশু নির্যাতন দমন আইন ২০০০ এবং ২০০৩ সনের সংশোধিত আইনের ১১ (গ) ধারায় শাস্তি যোগ্য অপরাধ করিয়াছেন। রাস্ট্র পক্ষ অত্র মামলায় ৭ জন স্বাক্ষী আদালতে হাজির করিয়াছেন। আপনি উহা ডকে দাঁড়াইয়া শুনিয়াছেন। ইহাতে আপনার বক্তব্য কি?
উত্তরঃ আমি নির্দোষ।
প্রশ্নঃ আপনি কোন কাগজপত্র দাখিল করিবেন কি?
উত্তরঃ না।
প্রশ্নঃ আপনি ছাফাই স্বাক্ষ্য দেওয়াইবেন কি?
উত্তরঃ না।
 
21.   The two other accused persons also examined under section 342 of the Code in the same way.
 
22.   From the plain reading of the above statement it appears that it was done in a slip short manner. It appears that at the time of examination under section 342 of the Code of Criminal Procedure the trial court failed to put the incriminating evidence against the convict-appellants for the purpose of enabling them to explain the circumstance and thereby the convict-appellants have been highly prejudiced.
 
23.   In the case of State -Vs-Monu Miah and others, reported in DLR(AD)(2002) 60 our Apex Court held as follows;

The Court below also found that the examination of the accused under section 342 CrPc have been perfunctory which has seriously prejudiced the accused as incriminating evidence or circumstances sought to be proved against the accused was not put to the accused during examination under section 342 CrPc causing gross miscarriage of justice. In the case of Mizazul Islam @ Dablu Vs State 41 DLR(AD) 157 sandal which was the incriminating material sought to implicate the accused was not drawn to the attention of the accused at the time of examination under section 342 CrPc and, as such, the same was left out of consideration Accordingly, it was held in that case that incriminating evidence or circumstances sought to be proved by the prosecution must be put to the accused during examination under section 342 Cr. Pc otherwise it would cause miscarriage of justice to the great prejudice of the accuse.
 
24.   In the case of Shahid Mia and another -Vs- The State and another, reported in 60 DLR(HCD)371, the court held as follows;

“It appears that while examining the accused appellants under section 342 of the Code of Criminal Procedure the trial Court failed to put the incriminating evidence against the accused appellants for the purpose of enabling them to explain any circumstance and thereby the accused appellants have been prejudiced.”
“Section 342 of the Code of Criminal Procedure that the accused should be examined for the purpose of enabling him to explain any circumstance appearing in the evidence against him. But in the instant case no incriminating circumstance was put to the accused appellants”
 
25.   In the decision reported in AIR 1972 (SC) 535 it has been held as follows;

“The real importance of this section lies in that it imposes a duty on the court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby an opportunity is given to him to explain any such point.
 
26.   Section 342 of the Code of Criminal Procedure, runes as follows;
 
Section 342 Power to examine the accused-
1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
2)The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them; but the Court may draw such inference from such refusal or answers as it thinks just.
3) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
4) No oath shall be administered to the accused.”
 
27.   The first portion of this section relates to putting questions to the   accused is an enabling provision but the second portion as to the examination of the accused is imperative. This section requires that the accused to be examined for the purpose of enabling him “to explain any circumstances appearing in the evidence against him”. It seems to be extremely unfair for a Judge to rely upon a circumstance as being incriminating without giving the accused any notice of it and without giving him an opportunity of explaining the circumstances, in any manner. This provision of law imposes a duty on the court to question the accused properly and fairly so as to bring home to him the exact case he will have to face and thereby an opportunity is to be given him to explain any such point. Examination under this section is not intended to be an idle formality. It has to be carried out in the interest of justice and fair opportunity to the accused. It is intended for the protection and benefit of the accused persons and not in order to enable the prosecution to find out materials to support the prosecution case. By a slip short examination, which is the result of imperfect appreciation of the evidence, idleness or negligence, the position of the accused cannot be permitted to be made more difficult that what it is in a trial for an offence.
 
28.   The Appellate Court must always consider whether by reason of failure to comply with the procedural provision of this section, which does not affect the jurisdiction of the court accused is materially prejudiced. The object of this section is to enable the accused to explain each and every circumstance appearing in the evidence against him. This cannot be done by such a general question as ‘what have you to say’? or ‘what is your defence’? The specific point or points which weigh against the accused must be mentioned. If this is not done, he cannot be reasonably expected to be able to explain those points. The accused is to be examined after the evidence for the prosecution has been recorded. The accused must be examined after the examination, cross-examination and re-examination of all the prosecution witnesses are over.
 
29.   It appears that while examining the appellants under section 342 of the Code of Criminal Procedure the court below did not properly disclosed the incriminating evidence against the appellants who are present in dock and faced the trial. Section 342 of the Code of Criminal Procedure is based on the principle involved in the Maxim audi alteram partem-that is no one should be , condemned unheard” It is utmost duty of the court to give an opportunity to an accused to defence himself/themselves. The real object of section 342 of the Code of Criminal Procedure is inviting the attention of the accused person to the points in the evidence which are against them for which they may be convicted, so, he is given a chance to offer his explanation as to those. But in this case the learned Judge of the Tribunal has not given any chance to the convict appellants in accordance with law.
 
30.   I have carefully scrutinized of the evidence of the prosecution witnesses and section 342 of the Code of Criminal Procedure and the decisions as referred herein above and other materials on record. It appears to me that there is no legal evidence to convict the appellants. The prosecution witnesses are almost family members of the victim. P.W.-5 Md. Babul Sheikh deposed “বাদী আমার রিকসায় যাওয়ার সময় আমার কাছে বলে তাহার স্বামী ১নং আসামী ১ লক্ষ টাকা যৌতুকের দাবীতে তাহাকে মারপিট করিয়াছে।” He is mere hearsay witness of the case. P.W.-6. Md. Younus Akon claimed that – at the time of occurrence he was present there, and he has seen the occurrence. In this regards the learned Advocate of the appellants has argued that P.Ws.-5 and 6 are completely chance witnesses, that is why their evidence cannot be relied upon.
 
31.   It is well settled that the evidence of a chance witnesses is very weak type of evidence and is not considered worthy in coming to a decision in a criminal case. A chance witness is one who claimed to be present at the place of occurrence at the time of occurrence when and where he is not normally expected to be present. In the case on hand, a rickshaw puller was going to his home and at the time of crossing the place of occurrence he carried the victim on his rickshaw. He deposed as a P.W.-5 and stated that he has heard the fact that the victim was tortured for demand of dowry, which proved that he is mere hearsay witness. His evidence cannot be relied upon, in any circular.  
 
32.   As much as on the plain reading of the examining the accused appellants under section 342 of the Code of Criminal Procedure, it appears that the accused persons were not given proper opportunity to offer their explanations as to the guilt for which the convict-appellants have been prejudiced.
 
33.   So, I find that the learned Judge has not applied his Judicial mind in passing the order of conviction and sentence, as, such, the same is liable to be set aside.
 
34.   Accordingly, I find merit in this appeal.
 
35.   In the result, the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the trial court dated 17.06.2009 in Nari-O-Shishu Nirjatan Daman Case No. 190 of 2007 is hereby set aside.
 
36.   The convict appellants are acquitted from the charge levelled against them.
 
37.   The appellants be released from their respective bail bonds, forth with.

        Send down the Lower Court Records with a copy of the judgment at once.

        Ed.