Md. Azim Uddin and others Vs. The State, 2 LNJ (2013) 380

Case No: Criminal Appeal No. 5076 of 2006

Judge: A. K. M. Asaduzzaman,

Court: High Court Division,,

Advocate: Mr. Bashir Ahmed,Mr. Syed Hyder Ali,,

Citation: 2 LNJ (2013) 380

Case Year: 2013

Appellant: Md. Azim Uddin and others

Respondent: The State

Subject: Law of Evidence,

Delivery Date: 2011-02-23

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
A.K.M. Asaduzzaman, J.
And
A.K.M. Zahirul Hoque, J.

Judgment
23.02.2011
 
Md. Azim Uddin and others   
. . . Appellants
-Versus-
The State
. . . Respondent.
 
 
Evidence Act (I of 1872)
Sections 8, 24, 30, 114(g) and 134
In the instant case, the PW. 1 is remained the sole witness to prove the prosecution case but he failed to connect the accused persons with the crime. All other prosecution witnesses either were declared hostile or had been tendered by the prosecution side. The vital witness namely, Salimuddin, allegedly saw the victim with the accused persons has not been examined in Court. The confessional statement of accused Ala Box Sheikh was neither voluntary nor true nor was there any independent corroborative evidence to connect the co-accused with the alleged crime and hence the appellants are entitled to get benefit of doubt. . . . . (25)

Mr. Syed Hyder Ali, Advocate     
. . . For the appellants in Crl. Appeal No. 5076 of 2006.
Mr.Md. Mamnur Rashid, Advocate
. . . For the appellant in Criminal Appeal No. 5260 of 2006.
Mr. Bashir Ahmed, A. A.G
. . . For the respondent

Criminal Appeal No. 5076 of 2006 with Criminal Appeal No. 5260 of 2006
 
JUDGMENT
A.K.M. Asaduzzaman, J.
 
Since these 2(two) appeals arisen out of the same judgment are heard together and disposed of by a single judgment.

These 2(two) appeals were preferred against the judgment and order dated 12.09.2006 passed by the learned Additional Sessions Judge, 1st Court, Naogaon in Sessions Case No. 09 of 1999 convicting the  appellants under section 302/34 of the Penal Code and sentencing them to suffer imprisonment for  life with a fine of Tk. 10,000/-, in default to suffer rigorous imprisonment for a period of 1(one) year more.

Prosecution case in short, inter alia, is that on 01.07.1997 one Abdur Razzak lodged an FIR with the  Mahadebpur Police Station alleging inter alia that the father of the complainant, deceased Kayemuddin gave  his neighbour Md. Azimuddin, son of Md. Abdus Sobhan a sum of Taka 40,000/- for the purchase of his land but the said Azimuddin did not execute and register the sale of the land concerned nor did he return the money on various excuses even after several reminders to him; that on 20.5.97, around 4.30 p.m. the said Azimuddin along with two faithful associates namely Md. Abed Ali and Md. Ashraf Ali, the  accused petitioners herein, took the deceased Kayemuddin to the hat at Jigatola and after he finished his shopping in the hat the accused persons called the deceased out of the hat  for the discussion about the monetary transaction relating to the said purchase of land; that a number of witnesses saw the accused persons talking to deceased Kayemuddin and he was seen going out of the hat with the accused persons; that the deceased Kayemuddin did  not return home and at about 1.30 a. m. to 2.00 a. m. the accused persons awakened the complainant  and called him out of his hut whereupon he became afraid and raised  alarm when the close relatives rushed to him and the accused fled away; that on the following day the dead body of the father of the complainant  was found hanging from a tree; that the accused petitioner Md. Abed Ali registered an unnatural death case in respect of deceased Kayemuddin; that the dead body was sent to the local hospital for post mortem which reported that the father of the complainant was killed.

Thereafter the case was investigated by the police, who submitted charge sheet under section 264/302/201/34 of the Penal Code against the persons including the appellants on 23.6.1998.

Thereafter the case was transmitted to the Court of Additional Sessions Judge, 1st Court, Naogaon for trial and registered as Sessions Case No. 9 of 1999 wherein charge was so framed against the accused persons under section  302/201/34 of the Penal Code which was read over to the accused persons wherein they pleaded not guilty and claimed to be tried.

The defence case as it transpires from the trend of cross- examination of the P.Ws. that the case was false and they were implicated falsely out of enmity and also victim of circumstances in this case.

During trial the prosecution examined 10 witnesses  and defence examined none. Thereafter the appellants were examined under section 342 of the Code of Criminal Procedure   wherein they again claimed to be innocent.

Considering the deposition of the prosecution witnesses and hearing the parties, the learned Additional Sessions Judge, Ist. Court, Naogaon convicted and sentenced the accused appellants as stated above. Being aggrieved there against the appellants preferred the instant 2(two) separate appeals. 

The learned advocate appearing for the appellants submits that this is absolutely a case of no evidence and the prosecution has failed to prove the charge by adducing any corroborative evidence of the prosecution witnesses, in view of the matter since the appellants were convicted on mere surmises and conjecture and they are benefit of doubt at least  and as such the impugned judgment is liable to be set aside.

The learned Assistant Attorney General appearing for the respondent submits that the trial court committed no illegality in convicting them of the offence as alleged and further submits that the trial court has correctly assessed the evidence on record and rightly convicted and sentenced them and as such there is nothing to interfere in the impugned judgment and he thus prays for dismissal of the appeals.

Heard the learned advocate of both the sides and perused the L.C.Records and the impugned judgment. In view of the submission that this is a case of no evidence on the very out set we like to see  the evidence of the prosecution side.

P.W.1 Md. Abdur Razzak stated in his deposition that at about 4.30 p.m on 20.5.1997  accused Abed and Ashraf Ali called his father and went to market to purchase goods  from the market, when on quarry of his uncle he said that he will be late to come, he  further disclosed that his father  was then staying with accused Abed, Tajimuddin, Ashraf, Sobhan, Azimuddin and Ala Box and thereafter his father did not return back home, he then taking anxiety went on sleep; at about 1.30 a.m. at night accused Abed, Ashraf and Tajimuddin called him through window and asked him to come out, on the torch light he found to recognize them they were holding  stick on their hand and accordingly on fair he declined to go out to his house. On quarry about his father he did not make  any reply. He further disclosed  that at that time he went to  his mother, younger brother  uncle Salimuddin  but he later called  them and noticing their presence the accused persons went away from the  window. On fear he did not go out of his room on the night. On the following morning  one Amisa,  wife of  Abdul Sheikh informed that the deadbody of his  father  is hanging on the Jam tree near to the pond of Riaz uddin. He  then rushed to the spot  and found the dead body on hanging undressed. Viewing the same he  become abnormal and thereafter he came to know  that accused Abed Ali went to the police station, thereafter the police went to the place of occurrence and prepared the surathal report and  sent the dead body for postmortem  and thereafter the dead body was buried. Few days thereafter accused Ala Box confessed and disclosed that accused Abed, Tazimuddin and Ashraf killed his father on the night. After  the occurrence accused persons left the village. After postmortem and taking all news  of his fathers death, he lodged the FIR. He identified the accused persons on dock, in his cross-examination  he further stated that he has two other brothers, one is farmer and another is student of Madrasha, he has 2 uncles Kalimuddin and Nayeb Ali, he has got  maternal uncle. He further disclosed that Jigatala  hut sits twice a week from 3 P.M to 9 P.M but having no permanent  structure of the shop Mehespur and Shibpur hat is big and peoples of the village goes to that hat. At the stage his deposition was postponed on 26.9.2000 and it was further taken on 08.07.2003 wherein he denied the defence suggestion that his father was not called by the accused to the hut and not been killed by the accused persons.

P.W.2. Md. Sekandar Ali declared hostile.

P.W. Most. Omesa Bibi, P.W.6 Biraj and P.W.7 Md.Yeasin Ali were tendered by the prosecution and the defence declined to cross-examine them.

P.W.4 Abdul Hamid, union parishad member, a witness of the surathal report proved his signature  in the surathal report, stated in his deposition that “মৃত কাইমুদ্দিন গলায় ফাঁস দিয়া গাছের সহিত--­----আত্মহত্যা করিয়াছে শুনিয়াছি।”

P.W.5. Md. Abul Hossain stated in his deposition  that on 21.5.97 one man was committed suicide, on the following day  he came to know the dead body of Kayemuddin. P.W. 8 Doctor Mozammel Haque, who held the autopsy and submitted postmortem. P.W.9 Magistrate Salina Sahadat, who recorded the confessional statement of accused Ala Bax. P.W.10. S.I. Sukumar Mohanta deposed in court as investigating officer of the case, who submitted  charge sheet and proved the charge sheet. In this case accused Ala Box Sheikh made a confessional statement. These are the evidences adduced by the  prosecution side.

It has been alleged in the FIR that the accuseds called the victim from his house subsequently the victim went to the hat and thereafter informants uncle Salimuddin saw  the victim to go with the accused persons and thereafter the victim was not found to have been back to his home and following  morning  his dead body was found hanging. In this case neither  Salimuddin  who saw the victim to go with the accused persons,  deposed in court to prove the said version of last departure of the victim with the accused persons and the informant  while deposing in court as P.W.1 also did not reiterate  the said versions of the FIR that the accused persons called the victim from his house to the  market rather he has said that the accused  persons call the victim from the market  to have been seen by  his uncle Salimuddin. Thus according to the deposition of P.W.1, the first calling  by the accused persons from the house was not been proved even by the informant himself and the next story of last seen to go the victim with the accused persons as narrated  by the informant’s uncle Salim Uddin also not been proved, by the said Salimuddin, since he did not depose in court. Thus in any view of the matter the story of calling the victim by the  accused persons was not been proved by adducing any evidence. In this case there is no other evidence other than P.W.1 to come forward to prove the prosecution story. All other reliable witnesses  either were declared hostile  or been tendered  by the prosecution side. Thus in this case only P.W.1 was remained as sole witness to prove the prosecution story but on plain reading of the deposition of the P.W.1 as we have observed above that he failed to connect  the accused persons with the alleged  occurrence. In this case there  is no evidence on record to show that the victim in any way was called by any of the accused persons, only a circumstance  has been tried to make out to connect the accused persons  in committing offence of killing the victim but when the vital witness, named Salimuddin who alleged to saw the victim to go with the accused persons and the other witnesses as alleged  in the FIR since not been produced in court to examine and to substantiate the charge  brought in this case, the appellants are absolutely entitled to get the benefit of section 114G of the Evidence Act. In this case we have also found that a statement under section 164 of the Code of Criminal Procedure was taken from a accused Ala Box Sheikh but while examining  Ala Box Sheikh by the court under section 342 of the Code of Criminal Procedure, the said accused also disclosed before the court  that the said statement was taken  on torture and it was not  voluntary and true enough. Further the confession of the accused  even if taken to be true is not sufficient enough to found him guilty, since there is no other evidence to connect the present appellants in the alleged commission of offence. The trial court thus appears to have passed the impugned judgment  and convicted the appellants only on mere surmises and conjecture. Since the prosecution has failed to prove the charge levelled against the appellants, they are entitled to get benefit of doubt at least.
Considering all these aspect of the case, we found that  this is absolutely a case of   no evidence and the trial court convicted the appellant on mere surmises and conjecture which is liable to be set aside. We thus found merits in these 2 (two) appeals.

In the result, the 2(two) appeals are allowed and the judgment and order dated 12.09.2006 passed by the learned Additional Sessions Judge, Ist. Court,Naogaon in Sessions Case No. 09 of 1999 is hereby set aside and the appellants are found not guilty of the charge levelled against them and they are hereby acquitted and is directed to set at liberty at once if not wanted in connection with any other case.

        Send down the L.C. records at once along with the judgment.

          Ed.