Md. Abdur Rashid @ Abdur Rashid Sarker Vs. The State, 3 LNJ (AD) (2014) 152

Case No: Criminal Appeal No. 06 of 2006

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Biswajit Deb Nath,,

Citation: 3 LNJ (AD) (2014) 152

Case Year: 2014

Appellant: Md. Abdur Rashid @ Abdur Rashid Sarker

Respondent: The State

Subject: Law of Evidence,

Delivery Date: 2014-06-11

APPELLATE DIVISION
(CRIMINAL)
 
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J.
Muhammad Imman Ali, j.
 
Judgment on
11.06.2014
  Md. Abdur Rashid @ Abdur Rashid Sarker
...Appellant
Versus
 The State
...Respondent
 

Code of Criminal Procedure (V of 1898)
Section 154
The failure of the informant to mention anything about his brother P.W.2 Helal Uddin, who claimed to have heard about the victims from his brother Jahangir (the informant), is clearly an embellishment. It is clear upon scrutiny of the evidence that Jahangir first heard about the occurrence from Nabir Hossain, who reported the matter to the informant after visiting the place of occurrence where the victims had already died. Therefore, it is highly improbable that upon hearing about the matter from Jahangir, Helal would go to the place of occurrence and find the victims alive and screaming for help. . . . (14)

Evidence Act (I of 1872)
Sections 3 and 8
In any event even if it is proved that the appellant called the victims away and was seen in his company going towards the house of Barik Munshi, when he arrived there and is found in the presence of others in the house of Barik Munshi, which is admitted by the prosecution, his exclusive responsibility to explain what happened to the victims ends. The chain of circumstances is thus broken. What happened in the house of Barik Munshi where persons other than the appellant were also present is for Barik Munshi to explain. In the facts and circumstances discussed above, we find that the prosecution did not prove the guilt of the accused beyond reasonable doubt and, accordingly, he is found not guilty of the offence as charged. . . . ( 16 and 17)

For the Appellant: Mrs. Sufia Khatun Advocate-on-Record
For the Respondents: Mr. Biswajit Deb Nath, Deputy Attorney General, instructed by Mr. Zahirul Islam, Advocate-on-Record
 
Criminal Appeal No. 06 of 2006
 
JUDGMENT
Muhammad Imman Ali, J:
 
This appeal, by leave, is directed against the judgement and order dated 17.01.2004 passed by the High Court Division in Death Reference No.30 of 2001, Criminal Appeal No.2840 of 2001 and Jail Appeal No. 2884 of 2001 rejecting the reference  and dismissing the Criminal Appeal No. 2840 of 2001 and Jail Appeal No. 2884 of 2001 with modification of sentence on maintaining conviction under section 302 of the Penal Code and commuting the sentence of death to one of imprisonment for life in respect of the appellant. 

The prosecution case, in brief, was that the younger sister of the informant (P.W.1), namely Selina Khatoon was given in marriage to accused Md. Abdur Rashid, who accepted Tk. 20,000/- and 5 tolas of gold as dowry. Conjugal life of Selina Begum was not happy.  He demanded Tk. 20,000/- more as dowry, which having been refused he pronounced one Talaq on Selina Khatoon. Selina Khatoon was a teacher of a local R.D. High School. Trouble continued between Abdur Rashid and Selina Khatoon. On 31.05.1995 at about 3:00 p.m. Abdur Rashid came to the house of the informant, where Selina Khatoon used to stay and approached her to go to the house of Md. Barik Munshi for mediation of their family problem. Selina Khatoon along with her younger sister Rokeya Khatoon and younger brother Md. Abu Bakkar Siddique (Babul) started for the house of Barik Munshi at about 4:00 p.m. Previously, also on the direction of Abdur Rashid, Selina Khatoon visited the house of Barik Munshi on several occasions.  The informant came to know from Md. Nasir Hossain (P.W.10) that Selina Khatoon, Rokeya Khatoon and Abu Bakar Siddique had been lying senseless in the house of Barik Munshi. Dr. Md. Waheduzzaman had gone to the house of Barik Munshi and declared all three victims dead. The informant thereafter came to know that Abdur Rashid, Md. Barik Munshi, Md. Dudumia, Abdus Salam Sarker, Abdus Samad Sarker, Motin Sarker and Raishuddin Sarkar killed Selina Khatoon, Rokeya Khatoon and Abu Bakker Siddique by giving them poison. 

The Investigating Officer visited the place of occurrence, prepared the sketch map with index, prepared inquest report, examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure. After completion of investigation he submitted Charge-sheet under sections 302/34 of the Penal Code against 7 (seven) accused persons.

During trial the prosecution examined as many as 19 P.Ws. including Dr. Abdul Quader (P.W.12) who held the autopsy of the three deceased.  

The defence case, as it transpires from the trend of cross-examination was that the accused persons were innocent and the accused did not claim any dowry and no trouble occurred in respect of dowry. The victims committed suicide for unknown reasons. 

The learned Additional Sessions Judge, Sirajgonj after hearing the parties and considering the evidence and materials on record convicted the appellant under sections 302/34 of the Penal Code and sentenced him to death by his judgement and order dated 18.07.2001. All the other accused were acquitted.

Reference under section 374 of the Code of Criminal Procedure was made to the High Court Division for confirmation of the sentence of death, which was registered as Death Reference No.30 of 2001.

Before the High Court Division Criminal Appeal No. 2840 of 2001 and Jail Appeal No.2884 of 2001 were preferred by the condemned prisoner, which were heard along with the death reference.

By the impugned judgement and order, the High Court Division rejected the reference and dismissed the Criminal Appeal No. 2840 of 2001 and Jail Appeal No. 2884 of 2001 with modification of sentence as stated above.

Being aggrieved by and dissatisfied with the impugned judgement and order of the High Court Division the appellant preferred Criminal Petition for Leave to Appeal No. 202 of 2004 before this Division. Leave was granted to consider whether the High Court Division was in error in not considering important facts such as: there was no occasion of the appellant to invite the deceased Selina to the house of Barik Munshi for reconciliation and it was not possible that for the purpose of reconciliation she would take with her a younger brother and sister instead of her father and older brother; that reconciliation would be held in the house of Barik Munshi instead of holding the same before the local Chairman to whom notice of divorce was given; and that there was no evidence at all as to who administered the poison to Selina, her younger brother and sister or how it was done and the circumstantial evidence does not lead to the presumption that the appellant administered the poison.

Mrs. Sufia Khatun, learned Advocate-on-Record appearing on behalf of the appellant submitted that the judgement and order passed by the High Court Division is neither proper nor in accordance with law. She further submitted that in view of the facts, the High Court Division did not follow the established principles of assessment of evidence hence there has occasioned a gross failure of justice. The learned Advocate further submitted that since there was no eye witness in the said case as to who saw the accused administering poison to the deceased, as such relying on the so called circumstantial evidence was not lawful to find the convict appellant guilty of the murder of the deceased. She lastly submitted the High Court Division convicted the appellant totally on suspicion, conjecture and moral conviction rather than legal evidence.

Mr. Biswajit Deb Nath, learned D.A.G. appearing on behalf of the respondent made submissions in support of the impugned judgement and order of conviction and sentence. He further submitted that there is clear evidence from the prosecution witnesses, namely P.W. 9 and P.W. 13 that the victims were called away by the accused and were last seen in the company of the accused and hence the accused has a special responsibility under the criminal law to explain the death of the victims. He submitted that all the circumst-antial evidence led to the conclusion that the accused appellant called away the victims from their house, took them to the house of Barik Munshi where they died due to poison administered in their food. He pointed out that the evidence of P.W. 2 supports the prosecution case that when he went to the house of Barik Munshi he saw the victims screaming and found the accused along with others inside the house watching the victims screaming “বাঁচাও বাঁচাও”  Thereafter, he was chased away by the accused persons.

We have considered the submissions of the learned Advocate-on-Record for the appellant and the learned Deputy Attorney General for the Respondent and perused the impugned judgement of the High Court Division and other connected papers on record.

Upon scrutiny of the evidence we find that, according to the F.I.R. the occurrence took place at 10:00 p.m. following 31.1.1995 and the F.I.R. was lodged at 9:30 a.m. on 01.02.1995. The informant stated in the F.I.R. that he heard from one Nabir Hossain that his sister Selina along with another sister Rokeya and brother Abu Bakkar Siddique (Babul) were lying unconscious in the house of Barik Munshi, he sent doctor Md. Wahiduzzaman, Serajul Islam Harmuj along with Lal Miah on a motorcycle to the place of occurrence. As P.W. 1 the informant corroborated his statement as made in the F.I.R. We note that there was no mention by the informant that he informed his brother Helal Uddin (P.W.2) or that P.W.2 informed him about going to the house of Barik Munshi and finding Selina, Rokeya and Abu Bakkar screaming for help and the accused persons watching them and, thereafter, chasing them. We cannot believe that such an important fact and vivid description by P.W. 2 would not have been narrated to his brother-the informant during the night of occurrence and would not therefore be reflected in the F.I.R. If the informant is to be believed then the first persons to reach the place of occurrence on his intimation would have been Dr. Wahidu-zzaman, Serajul Islam and Lal Miah who on their arrival found the victims dead. We also note that the prosecution has not examined Dr. Wahiduzzaman who in our view is a most relevant witness. P.W. 10 Nabir Hossain who allegedly informed Jahangir, the informant (P.W.1) about the victims, stated in his deposition that having heard the news about someone being poisoned in Barik Munshi’s house he went to the place of occurrence and found the 3 persons lying in the Courtyard. Hence, it would appear that the victims had already died even before Nabir Hossain reached the place of occurrence. The failure of the informant to mention anything about his brother P.W.2 Helal Uddin, who claimed to have heard about the victims from his brother Jahangir (the informant), is clearly an embellishment. It is clear upon scrutiny of the evidence that Jahangir first heard about the occurrence from Nabir Hossain, who reported the matter to the informant after visiting the place of occurrence where the victims had already died. Therefore, it is highly improbable that upon hearing about the matter from Jahangir, Helal would go to the place of occurrence and find the victims alive and screaming for help.

With regard to the presence of the accused at the time of occurrence, P.W.5 Bellal Hossain stated that when he arrived on his motorcycle, the victims were already dead and upon hearing the sound of the motorcycle the accused persons fled. However from the cross-examination of the Investigating Officer( P.W.18) we find that Bellal Hossain did not say to the Investigating Officer that the accused persons escaped upon hearing the sound of the motorcycle. The presence of Helal at the place of occurrence is introduced by Bellal Hossain (P.W.5) who stated in his deposition that Lal Miah (Lutfur Rahman Lal) (P.W.8) stated that Helal is somewhere near and to search for him, but according to the Investigating Officer, Lal Miah did not say so in his statement under section 161 of the Code of Criminal Procedure.

With regard to the application of the concept “last seen”, learned D.A.G. submitted that the fact of calling and taking away by the accused appellant is proved by the evidence of prosecution witnesses, we find from the evidence of the Investigating Officer (P.W.17) that Sarmin (P.W. 9) did not tell him that the appellant called and took away the three victims. In any event even if it is proved that the appellant called the victims away and was seen in his company going towards the house of Barik Munshi, when he arrived there and is found in the presence of others in the house of Barik Munshi, which is admitted by the prosecution, his exclusive responsibility to explain what happened to the victims ends. The chain of circumstances is thus broken. What happened in the house of Barik Munshi where persons other than the appellant were also present is for Barik Munshi to explain.    

In the facts and circumstances discussed above, we find that the prosecution did not prove the guilt of the accused beyond reasonable doubt and, accordingly, he is found not guilty of the offence as charged.

         Accordingly, the criminal appeal is allowed. The judgment and order of conviction and sentence passed against the convict appellant Md. Abdur Rashid is hereby set-aside. The appellant is acquitted of the charge levelled against him and may be released forthwith if not wanted in connection with any other case.

         Ed.