Md. Delwar Hossain Bhuiyan Vs. The State, 2016(1) LNJ 185

Case No: Criminal Appeal No. 3020 of 2007

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Citation: 2016(1) LNJ 185

Case Year: 2016

Appellant: Md. Delwar Hossain Bhuiyan

Respondent: The State

Subject: Circumstantial Evidence,

Delivery Date: 2014-5-28


HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Syed Md. Ziaul Karim, J
And
Ashish Ranjan Das, J


Judgment on
28.05.2014
 
Md. Delwar Hossain Bhuiyan alias Delwar Hossain alias Delwar Hossain
Convict-appellant
(In Crl. Appeal No. 3020 of 2007)
Md. Masud Miah alias Masud
Convict-appellant
(In Crl. Appeal No. 5337 of 2007)
Versus
The State
. . . Respondent
(In both the cases)
 
 
Evidence Act (I of 1872)
Sections 8 and 59
Credibility of the Witness - 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. 
a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
b) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused.
c)  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.
d) There must be clear and unequivocal proof of the corpus delicit.
e)   The hypothesis of delinquency should be consistent with all the facts proved. . . .  (46)
 
Evidence Act (I of 1872)
Section 60
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.  . . .(46)
 
Words and Phrases
Judicial Evidence
All judicial evidence is either direct or circumstantial. By ‘direct evidence’ is meant when the principal fact, or factum probandum is attested directly by witnesses, things or documents. To all other forms, the term ‘ circumstantial evidence’ is applied; which may be defined, that modification of indirect evidence, whether by witnesses, things or documents, which the law deems sufficiently proximate to a principal fact or factum probandum to be receivable as 'conclusive' when the connection between the principal and evidentiary facts- the factum probandum and factum probnans- is a necessary consequence of the laws of 'Nature '; presumptive’ when the inference of the principal fact from the evidentiary is only probable whatever be the degree of persuasion which it may generate. Circumstantial evidence is the evidence of circumstances as opposed to what is called direct evidence. Evidence which proves or trends to prove the '' factum probandum'' indirectly by means of certain inferences of deduction to be drawn from its existence or its connection with other 'facts probantia' it is called circumstantial evidence. Authorship of a document can be proved like any other fact, by both direct as well as circumstantial evidence. ....(54)
 
Evidence Act (I of 1872)
Section 8
Circumstantial Evidence –––Circumstantial evidence means the evidence afforded not by the direct testimony of an eye-witness to the fact to be proved, but by the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result other than truth of the principal fact. Circumstantial evidence may be best understood by comparison with direct evidence. It is not evidence direct to the point in issue, e.g. the statement of a person that he saw another give a fatal blow to the deceased, but evidence of various facts other than the facts in issue which are so associated with the fact in issue that taken together they form a chain of circumstances leading to an inference or presumption of the existence of the principal fact. ″Circumstantial evidence is merely direct evidence indirectly applied. And direct evidence, when closely analysed, is found to possess the inferential quality; Circumstantial evidence is something from which facts in issue are to be inferred. It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic in contentions and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis. Circumst-antial evidence means a fact on which an inference is to be found. The facts must be closely knitted and must carry conviction to the mind of a Judge. . . . (55)
 
Evidence Act (I of 1872)
Section 8
The circumstances by themselves without anything more, are not enough to connect the convict with the crime. It is, therefore, clear that the learned trial Court has committed a serious error of law in basing conviction of the convict on such circumstantial evidence which has failed to connect the appellant with the crime. ...(70)
 
Evidence Act (I of 1872)
Section 8
It is well settled that mere abscondence cannot always be a circumstances leading to the inference of guilt of the accused. In this case, there is no evidence against the accused. Hence their subsequent abscon-dence cannot be treated as a circumstances leading to the inference of involvement in the crime. Mere abscondence cannot always be a circumstances which should lead to an inference of guilt of the accused. Sometimes out of fear and self respect and to avoid unnecessary harassment even an innocent person remain absconding for sometime. . . .(76)
 
Penal Code (XLV of 1860)
Section 302
It is true that crime like murder 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 the murder. There cannot be conviction for murder on mere suspicion or presumption. The commission of murder must be proved. The presumption cannot take the place of positive evidence. . . .(81)
 
Evidence Act (I of 1872)
Section 3
The instant case is absolutely a case of no evidence against the appellants but the Court below without any legal evidence convicted the appellants in moral view. Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the appellants 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. . . . (82)
 
Arman Ali and others vs. The State BCR 1987 HCD-259;Hassen Ali and another vs.The State 38 DLR-235; State vs. Sree Ranjit Kumar Pramanik 12 BLD 284; Soleman and others vs. The State 1990 BLD 179;Md. Selim vs. State 4 BLC- 261; Bhola vs. State 55 DLR-36; Gulzar Biswas and others vs. State 5 BLC-278; Billal vs. State 52 DLR (AD) 143;(AIR 1984 SC 1622, 1994 BLD 33);1985 BLD (AD) 301).; (AIR 1990 SC 214); (10 MLR (AD) 175); (PLD 2003 SC 704); (AIR 1984 SC 1622); 41 DLR 11; 61 DLR 310); (PLJ 1999 SC 729); (1990 SC 214); (1989(2) Crimes 240 Delhi, 37 DLR (AD) 87); (9 BLT (AD) 107); 43 DLR 512); (PLD 2003 SC 704); (AIR 1984 SC 1622); 41 DLR 11); 61 DLR 310); (PLJ 1999 SC 729); (1990 SC 214); (1989(2) Crimes 240 Delhi, 37 DLR (AD) 87); (9 BLT (AD) 107); 43 DLR 512); (1991 BLD 158); Abdul Aziz and others Vs. The State, 33 DLR 402; PLD 1950 Lahore 288 (FB); Eradu and others Vs. State of Hyderabad PLD 1956 (SC) India 286; Tasliumuddin alias Tasir and three others Vs. State 44 DLR 136; Rahman Vs. The St ate of U.P. AIR 1972(SC) 110;State Vs. Khasru alias Syed Mostafa Hossain and another 43 DLR(AD)182; Abdus Samad Vs. The State 16 DLR(SC) 261, Anisur Rahman and others Vs. The State 1986 BLD(AD)77, 1987 BCR(AD)187, Taslimuddin alias Tasir Vs. The State 44 DLR 136 and the cases 11 DLR(SC) 365, PLD 1956 SC 286, 33 DLR 402. Nuru and another Vs. The State 1 BLC-582 (Para-14);State Vs. Khasru alias Syed  Mostafa Hossain and another 43 DLR(AD) 183;Monsur Ali Vs. The State 13 BLC 196; State Vs. Badsha Molla, 41 DLR 11, State Vs. Mofijuddin 4 BLD-481=10 BLC-93, State Vs. Lalu Mia, 39 DLR(AD)117, State Vs. Sree Ranjit Kumer Promanik, 45 DLR 660, Ali Vs. Crown 6 DLR(W.P.)52, Rahman Vs. The State of U.P. AIR 1972(SC)110, Shajahan Vs. The State 46 DLR-575, Mojibur Rahman Vs. The State 13 MLR-88;Safder Ali Vs. Crown 5 DLR(FC) 107 ref.
 
Mr. Sk. Yead Ali, Advocate with
Mr. Ellias Ahmed, Advocate
. . . For the Convict-appellant
(In Criminal Appeal No. 3020 of 2007)

Mr. Sk. Rashedul Haque, Advocate
. . . For the Convict-appellant
(In Criminal Appeal No. 3020 of 2007)

Mrs. Sakila Rowshan,D.A.G. with
Mrs. Sharmina Haqaue, A.A.G. and
Mr. Md. Shorwardhi, A.A.G.
. . . For the State-respondent.
 
Criminal Appeal No. 3020 of 2007 with  Criminal Appeal No. 5337 of 2007
 
JUDGMENT
 
Syed Md. Ziaul Karim, J:
 
1.      By these appeals convict-appellants have challenged the legality and propriety of the Judgment and order of conviction and sentence dated 27-05-2007 passed by learned Additional Sessions Judge, Narsingdi, in Session Case no. 95 of 2003 convicting the appellants under Sections 302, 34 of the Penal Code and sentencing each of them to suffer imprisonment for life and also to pay a fine of Tk.5,000/- each in default to suffer rigorous imprisonment for year more. Both the appeals having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment.
 
2. The prosecution as projected in the first information report(briefly as FIR) and unfurled at trial are that Amena Begum aged about twenty years (since deceased) daughter of Md. Ramjan Ali (PW.1) of village Sultanpur, Police Station Palash, District-Narsingdi was married with Md. Arif Buiyan of the same village before 1/1½ years of the occurrence.  She was carrying about four months. Since marriage sometime dispute errupted between them over trifling family matter. On 26-08-1998 she was in her parent’s home. On the same day, at night at 8:00 p.m. her accused husband Arif Bhuiyan and his cousin accused Delwar Hossain came and proposed to her mother (PW.2) for taking her in conjugal home. Accordingly at 9:00 p.m. she went with them. On the following day i.e. on 27-08-1998 at 12’0 clock her niece Nila (PW-7)) went to her conjugal home. She (Nila) was informed by her accused husband to the effect that she (deceased) did not go with him in the last night. Her (deceased) father and other inmates unsuccessfully searched her, then her father suspected that her accused husband Arif Bhuiyan and cousin Delwar Hossain with pre-meditated plan took her and subsequently murdered her and concealed her dead-body. Then on 29-08-1998 her father Md. Ramjan Ali (PW. 1) as informant reported the incident to the local Police Station wherein it was recorded as Palash P.S. Case no. 12 dated 29-08-1998 corresponding to G.R. no. 1134 of 1998 under Sections 364, 34 of the Penal Code. Later on 02-09-1998 her dead-body was recovered by the Police from the tank of a toilet of Abdul Awal, Advocate (PW.11). Police held inquest upon the cadaver and sent the same to the morgue for autopsy. With these allegations the prosecution was launched under sections 302, 34 of the Penal Code.
 
3. The Police after investigation submitted charge-sheet accusing five accused including the appellants under Sections 302, 201, 34 of the Penal Code showing accused Delwar Hossain as absconding. After submission of the charge-sheet accused Delwar Hossain on 23-06-1999 surrendered before the Magistrate and he was taken into the custody. Subsequently he was granted bail by the learned Sessions Judge on 28-02-2000.
 
4. Eventually the case was taken up for trial by the learned Additional Sessions Judge, Narsingdi wherein the accused were called upon to answer the charge under Sections 302, 201, 34 of the Penal Code to which the accused on dock pleaded not guilty and claimed to be tried.
 
5. In course of trial the prosecution in all examined seventeen witnesses out of nineteen charge-sheeted witnesses. The defence examined none.
 
6. After closure of the prosecution case accused on dock were examined under Section 342 of the Code of Criminal Procedure and again they repeated their innocence but led no evidence in defence.
 
7. 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 previous enmity and internal feud, they were falsely implicated in this case out of vengeance at the instance of local rivals.
 
8. After trial the learned Judge convicted the appellants and another namely Arif Bhuiyan as aforesaid holding :
  1. The prosecution successfully proved the facts of taking away the victim by the accused.
  2. Soon-after the occurrence the accused were in absconding which are the inference of guilt of the accused.
  3. The prosecution successfully proved the charge under sections 302, 201, 34 of the Penal Code by consistent and corroborative evidence; however charge was not proved against the co-accused Sohel and Md. Belayet Hossain. 
9. Feeling aggrieved by the aforesaid judgment and order of conviction and sentence, the appellants preferred the instant appeal.
 
10. The learned Advocates appearing on behalf of the convict-appellants seek to impeach the impugned judgment and order of conviction and sentence on five fold arguments:
 
Firstly:   There is no legal evidence to make a nexus between the appellants and commission of murder of deceased Amena Begum.

Secondly: The prosecution measurably failed to prove any motive of murder by evidence.

Thirdly: Soon-after the occurrence the accused Arif Bhuiyan and Md. Delwar Hossain were interrogated by the locals and they were blaming each other in respect of taking away the deceased from her parent’s house. So in such blaming custody of the deceased by her accused husband is more probable.

Fourthly: Although the prosecution succeeded to prove that both the accused went to the parent’s house of deceased and they took her from there but later upto recovery of her dead-body, their complicity was not proved by evidence. Therefore, the last seen theory in respect of culpability has no leg to stand. In support of their contention they refer the case of Arman Ali and others vs. The State BCR 1987 HCD-259 held:
 
" (a) Deceased Motaher was taken away from his house by the accused. No inevitable conclusion that the accused persons killed Motahar. "
(b) Assuming that the deceased Motahar was called by the accused persons in the manner said by PWs. 1, 3, 5 and 8, no hypothesis can be drawn from this fact which is incompatible with the innocence of the accused persons and as such no conviction can be upheld on these evidence.
(c) The production of the sandals of the deceased by the sister of Surman and the marks of violence allegedly found in a land near their house by themselves are no evidence to prove involvement of the accused persons or any of them with the murder.
 
On the identical point they further refer the case of Hassen Ali and another vs. The State 38 DLR-235 held:
 
"Merely because the two accused had called and taken away the victim to the previous evening it will be most unreasonable to think that none but the two accused abetted the murder which took place so many hours after the taking away of the victim. At least such a conclusion is not only out of scope but also absolutely unsafe to stretch the imagination so far. "
        
They also refer the case of State vs. Sree Ranjit Kumar Pramanik 12 BLD 284 held:
 
" Circumstantial Evidence.
Evidence of last seen together, whether is a weak type of circumstantial evidence for conviction for murder case.
A    ' minor offence' and 'a lesser offence' whether are neither synonymous nor same kind of offence.
Held: (i): ' Last seen together' is a weak type of circumstantial evidence on which to have a conviction, where evidence is necessary to find a link between the accused and the murder.
(ii) A 'minor –offence' and a ' lesser offence',  are neither synonymous nor same kind of offence. so they did not fall under the same category. An offence to be a minor offence to a major one must be a cognate offence to a major one, having the main ingredients in common. The ingredients of the offence of murder and those of the offence of abduction for murder or for putting the abducted person in danger of being murdered are not common. Hence the offence under section 364 is not also a cognate offence to the offence under Section 302. "
 
In the case of Soleman and others vs. The State 1990 BLD 179 held:
 
'' Mere taking away of the victim from his house without any overt act animus in the form of any hostile attitude or initial intention to kill will not justify conviction for such offences- The theory of ' last seen' must carry along with it a high degree of probability excluding all other theories save and except the hypothesis of the guilt of the accused. ''

Fifth and lastly:  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.
 
11. The learned Deputy Attorney General appearing on behalf of the State-respondent of both the appeals opposes the appeals and submits that soon-after the occurrence the accused Delwar remained absconding from the locality and till submission of the charge-sheet he did not appear before the Court. Such absconsion infers his guilt. She adds that PW 6 Jashimuddin found accused Masud in a suspicious movement around the graveyard of Sultanpur. So according to her he had the complicity in commission of murder of the deceased. She lastly submits that the prosecution by consistent and uniform evidence categorically proved that none but the appellants committed the murder. So last seen theory in respect of commission of crime has been proved beyond all reasonable doubt.  In respect of her contentions she refers the case of Md. Selim vs. State 4 BLC- 261 held:

″ Last seen- If the evidence of PWs 1 and 2 are read along with the evidence of PW 5 is found that the victim Seru Mia was last found in the company of the accused persons including the appellant Md. Salim which amply proves strong circumstantial evidence pointing to the guilt of the accused persons for committing the offence of kidnapping of the victim and as such they are guilty of the offence under section 364 of the Penal Code. ″
   On the identical point she refers the following cases-

(a) In the case of Bhola vs. State 55 DLR-36 held :

if it is proved that the deceased was last seen alive in the company of the accused in the absence of any other reasonable explanation as to the safe departure of the deceased from the company of the appellant no conclusion other than the guilt of the accused can be drawn.

(b) In the case of Gulzar Biswas and others vs. State 5 BLC-278 held:

PW 4, Biddut who is the lone eye witness and one of the two victims could recognize all the accused appellants as it was a moon lit night and he saw the accused persons to assault victim Biswajit and to chase Biswajit and he could not see further occurrence after being senseless. There is complete chain of circumstances that the appellants and assaulted deceased victim Biswajit severely and dealt fatal  blows causing his death when appellant Gulzar participated in the occurrence most actively and he was found by PW 4 for the last time with the deceased victim when Gulzar was chasing by the eastern side of the khal and the circumstances of the case taken cumulatively are forming a chain so complete that there is no escape from the conclusion that the murder of victim Biswajit was committed by the accused appellant Gulzar and his associates and none else.

(c) In the case of Billal vs. State 52 DLR (AD) 143 held:

″Calling and taking away of the victim by appellant Billal and co-convict Saiful from residence half an hour before his murder recovery of the body of the victim, Billal’s of love and threat to the PW 2 Mokseda, abscondence of Billal; immediately after the occurrence are circumstances to lead to the conclusion that he abetted the murder. ″

So according to her the judgment and order of conviction and sentence passed by learned Judge of the Court below calls for no interference  by this Court.

12. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.

13. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.

14. P.W. 1 Md. Ramjan Ali, father of the deceased Amena Begum and informant of this case. He heard the incident of taking away the deceased, from his wife. He deposed that his third daughter Most. Amena Begum (since deceased) aged about twenty years was married with Arif Bhuiyan before 1/½ years of the occurrence. Since marriage they used to quarrel with each other over trifling family matter. On 26-08-1998 his deceased daughter was in his home. At evening his son-in-law Arif Bhuiyan and his cousin Delwar came to his home and proposed to his wife to take his daughter. Accordingly, his daughter went with them. At 9:30 p.m. he returned home and heard the same from his wife. On the following day i.e. on 27-08-1998 his grant-daughter Nila went to the house of his son-in-law to know about his daughter but she was informed by Arif Bhuiyan that Amena did not go with them and they could not give any information whereabout Amena. He heard the same from Nila and at about 12:30 /1 p.m. he went to the village of Delwar and asked about his daughter. He and his other inmates searched for his daughter but with no effect. Then he lodged the case against Arif Bhuiyan and Delwar. At that time his daughter was carrying for about five months. After eight days of occurrence dead-body of Amena was recovered from the tank of a toilet of Abdul Awal, Advocate by the Police. He along with his brother Ali Hossain, U.P. member Mosarraf Hossain, and other locals identified the dead-body. After lodging the case Mariam mother of accused Masud made statement recorded under Section 164 of the Code of Criminal Procedure before the Magistrate and stated that he (Masud) along with four others strangulated his daughter to death and hide it in the tank of toilet. He lodged the FIR and proved the same as Exhbt. 1.

15. In cross-examination on behalf of the  accused Delwar Hossain. He stated that at the time of taking away of his daughter Amena, his wife and other inmates were present. When his daughter Amena came to his house, at that time accused Delwar was not with them. He could not say the age of accused Delwar. He denied the suggestion that he had no knowledge about the murder of deceased  and falsely implicated him.

16. PW. 2 Madina Begum, mother of deceased. She deposed that since marriage some family dispute used to happen between them. On 26-08-1998 deceased Amena was with them. Her son-in-law accused Arif and Delwar proposed to take her daughter and they took Amena in presence of her two sons Dulal and Soleman and their wives Rina and Jharna and another  Ali Hossain. At that time her husband was not at home. On the following morning her grand-daughter Nila went to the house of Arif wherein she (Nila) came to know that Amena was not in their home. She reported the same to her grand-parent’s and searched her(deceased) but after 7/8 days deceased was recovered from the tank of a toilet of Abdul Awal, Advocate. She suspected that accused Arif, Delwar, Sohel, Masud, Liton murdered her daughter. She identified Delwar, Balayet and Liton on the dock. She made statement to the Police.

17. In cross- examination she stated that she had no knowledge about the place of occurrence wherein her daughter was murdered.  She denied the suggestion that accused Delwar did not go with accused Arif in their home and deposing falsely.
 
18.    PW. 3 Md. Dulal Mia is the brother of the deceased. He deposed that before 1/½ years of the occurrence his younger sister Amena Begum was married with accused Arif. Since marriage they used to quarrel with each other for trifling family matter. On 26-08-1998 at 8:00 p.m. he was in home along with his sister Amena. At that time accused Arif and Delwar came to take his sister. His mother agreed to their proposal on good faith. At that time  his wife along with his brother’s wife were present. On the following day Nila his sister’s daughter informed them that Arif told that he (Arif) did not know whereabouts Amena. Having had heard the incident he along with his father and others unsuccessfully searched her. On 29-08-1998 his father lodged the first information report suspecting accused Arif and Delwar. On 02-09-1998 the dead-body of Amena was recovered from the tank of a toilet belonged to Abdul Awal, Advocate. The Police held inquest upon the cadaver and prepared seizure list. He proved the same as Exhbt. 2 and his signature on it Exhbt. 2/1. He identified the accused Delwar and another namely Belayet on dock.
 
19.    In cross-examination he denied the suggestion that accused Delwar did not go with Arif at their home and he was deposing falsely.
 
20.    PW. 4 Jharna Begum and PW. 5 Most. Rina Begum are the son’s wives of informant Ramjan Ali. Deceased was their nanad. They deposed that on 26-08-1998 accused Arif and Delwar took away the deceased. They were present at that time. They also stated such facts to their father-in-law. On the following morning their niece Nila informed them that accused Arif told that Amena did not go with them. After one week of the occurrence dead-body of deceased Amena was recovered from the tank of a toilet of Advocate Awal.
 
21.    In cross- examination they denied the suggestion that they falsely implicated the accused and deposing falsely.
 
22.    PW. 6 Jashimuddin, a local witness. He deposed that on 26-08-1998 at night at 12:30 a.m. he was returning home from Madobdi and found accused Masud in front of graveyard in suspicious state of mind. On the following day he came to know that accused Arif and Delwar took away the deceased Amena but on query the accused disowned such facts. After one week of the occurrence dead-body of Amena was recovered from the tank of a toilet of Abdul Awal, Advocate.
 
23.    In cross- examination he stated that he did not see the occurrence and deposing falsely.
 
24.    PW. 7 Nila is the niece of deceased Amena. She deposed that on 26-08-1998 at 8:00 p.m. she was in her grand father’s home at Sultanpur. On the same night accused Arif and Delwar took her aunt Amena. On the following day she went to the house of Arif to know about her aunt. But Arif informed her that he did not know anything about Amena. She informed this matter to his grand-father Ramjan and searched her (Amena) but with no effect. On 02-09-1998 her dead-body was recovered from the tank of a toilet of Abdul Awal, Advocate. Her statement was recorded by the Police.
 
25.    In cross- examination she denied the suggestion that on the night of occurrence he was not at the home of her grand-father and deposing falsely.
 
26.    PW. 8 Md. Mosarraf Hossain and PW. 9 Md. Monir Hossain, were the local witnesses. They deposed that they heard from informant Ramjan that Amena was taken by accused Arif and Delwar on 26-08-1998. Thereafter she (Amena) was missing. They searched her in different places but with no effect. After some days her dead-body was recovered from the tank of a toilet of Abdul Awal, Advocate, in his presence Police held inquest and prepared inquest report. They also stood as witnesses in the inquest report.
 
27.    In cross –examination they stated that on 27-08-1998 at 5:00 p.m. they for the first time heard the occurrence that Amena went with accused Arif and Delwar.  They denied the suggestion that due to election dispute the accused were falsely implicated in this case and they were deposing falsely. 
 
28.    PW. 10  Md. Nabiul Haque Bhuiyan, a local witness. He deposed that he heard about taking away Amena from the informant and further came to know that Amena was missing. Then they enquired the matter to Arif and Delwar but they blamed with each other. On 02-09-1998 dead-body of Amena was recovered from the tank of a toilet of Abdul Awal. Police held inquest in his presence.
 
29.    In cross- examination he denied the suggestion that he was deposing falsely.
 
30.    PW. 11 S.A. Awal, Advocate. He deposed that he heard from informant that on 26-08-1998 Amena was taken by accused Arif and Delwar  and since 27-08-1998 she was missing. Then he along with others searched Amena in different places but with no effect. Later, on 02-09-1998 dead-body of Amena was recovered from the tank of his toilet. Police also held inquest in his presence and seized cover of toilet and prepared seizure list.
 
31.    In cross- examination he denied the suggestion that being influenced by the locals he was deposing falsely.
 
32.    PW. 12 Md. Sekhor. He was a rickshaw puller and  local witness. He deposed that on 26-08-1998 at 9:/9¼ a.m. he was returning from Charsindhu Bazar, while he reached at Sultanpur High School he found accused Arif and Delwar were taking away the deceased Amena. On query  Amena told that she was going to Delwar’s home. On the following day he heard that Amena was missing. On 02-09-1998 her dead-body was recovered. The dead-body of Amena was identified by her relations.
 
33.    In cross-examination he deposed that being influenced by the local rivals of accused Delwar he was deposing falsely.
 
34.    PW. 13 Mariam, mother of accused Masud. She deposed that she made statement before the Magistrate. She proved the same as Exhbt. 6. She was declared hostile by the prosecution.
 
35.    In cross- examination by the prosecution she denied that deceased Amena was murdered by his son, and she was not deposing in a proper way.
 
36.    PW. 14 Md. Abul Hassan, Magistrate, first Class. He recorded the statement of Mariam under section 164 of the Code of Criminal Procedure with due compliance of procedure.
 
37.    PW. 15 C-Md. Siraj Khan, he deposed that on 02-09-1998 he was attached with Palash Police Station. He carried the dead-body to the morgue of Narsingdi Sadar hospital for postmortem examination.
 
38.    PW. 16 S.I. Md. Giasuddin, investigating officer of this case. He deposed that the case was entrusted to him for investigation. He visited the place of occurrence and prepared sketch map and index, recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure, held inquest upon the cadaver and then submitted charge-sheet accusing all the accused.
 
39.    In cross- examination he denied the suggestion that being influenced by the informant he submitted a perfunctory charge-sheet.
 
40.    PW. 17 Dr. Md. Atiqul Sarowar. He deposed that on 03-09-1998 he was RMO of Narsingdi Sadar hospital. He held autopsy upon the cadaver of deceased Amena. He found the following injuries:
  1. One abrasion on the right upper breast;
  2. One bruise on the chest.
  3. Both sides of the upper part of the neck found bruised.
  4. One bruise on the upper part of the face.
         He opined that death was due to asphyxia as a result of strangulation which was antimortem and homicidal in nature. He proved the postmortem report as Exhbt. 16 and his signature on it 16/1.
 
41.    In cross-examination he denied the suggestion that without proper examination he submitted improper report being influenced by the informant.
 
42.    Now the question  calls for consideration how far the prosecution proved the  charge under Sections 302, 201, 34 of the Penal Code against the appellants. Such question along with the submissions of the defence should be answered in the following manner:
 
43.    In approaching and answering to the points drawn up, the cardinal principles of criminal jurisprudence in awarding conviction followed by sentence upon an indicted person demands meditation. A legal survey of law, appraisal of evidence, browsing eye on materials brought on record, analysis of fact and circumstance of the case, inherent infirmities disturbing and striking facts of prosecution case are also required to be taken into consideration. Rival contentions surged forward from both sides shall be also addressed and considered by us.
 
44.    Fundamental principles of criminal jurisprudence and justice delivery system is the innocence of the alleged accused who should be presumed to be innocent until the charges are proved beyond reasonable doubt on the basis of clear, cogent and credible evidence and that onus of proving everything essential to the establishment of charge against the accused lies upon the prosecution which must prove charge substantially as laid to hilt and beyond all reasonable doubt on the strength of clear, cogent credible and unimpeachable evidence. In a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests on the prosecution and on its failure, it cannot fall back upon the evidence adduced by the accused in support of his defence to rest its case solely thereon. Proof of charge must depend upon judicial evaluation of totality of evidence, oral and circumstantial, and not by an isolated scrutiny. Prosecution version is also required to be judged taking into account the overall circumstances of the case with a practical, pragmatic and reasonable approach in appreciation of evidence.
 
45.    It is always to be remembered that justice delivery system cannot be carried away by heinous nature of crime or by gruesome manner in which it was found to have been committed and graver the charge is greater is the standard of proof required. It should also bear in mind that if the accused can create any doubts by adducing evidence or cross examining the PWs in the prosecution case, the accused is entitled to get benefit of doubt. It is conveniently observed that though sad, yet is a fact that in our country there is a tendency on the part of the people to rope in as many people as possible for facing trial in respect of any criminal case. It has been even found that innocent person, including aged infirm and rivals, are booked for standing on dock. Some are acquitted by the Court of first instance and some by appellate Court, but only having been in incarceration for years. Such efforts on the part of relatives of victim and other interested persons invariably is done and thus it becomes difficult on the part of a Court to find out the real culprit. Under such circumstances and in view of the prevalent criminal jurisprudential system, a judge is to find out the truth from a bundle of lies and to shift the grain out of chaff. A Judge does not preside over a criminal trial merely to see that no innocent person is punished. A Judge, also presides to see that guilty man does not escape. Both are public duties. Law therefore, cannot afford any favour other than truth and only truth.
 
46.    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 unequi-vocal 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.
 
47.    On going to the materials on record it transpires that in course of trial  the prosecution in all examined seventeen witnesses. Of them, PW 1 is the informant and father of the deceased. PWs. 2, 3, 4, 5 and 7 were the inmates of the informant’s house, in their presence appellants approached for taking Amena( since deceased) and took away. PWs. 6, 8, 9, 10 and 11 are the locals witnesses. They heard about taking away the deceased from PW.1, of them dead-body was recovered from the tank of a toilet of Abdul Awal, Advocate (PW.11). PW.12 also a local witness. He head the occurrence and witnessed of taking away the deceased.  PW. 13 mother of the accused Masud. She was hostile by the prosecution. PWs. 14, 15, 16 and 17 are the officials witnesses, of them PW. 14 recorded the statements of PW 3 Mariam and PW. 15 carried the dead-body to the morgue, PW. 16 is the investigating officer, PW.17 held autopsy upon the cadaver of the deceased.
 
48.    On meticulous examination of the evidence on record we find that there were virtually three circumstances upon which the prosecution relied:
Firstly: On 26-08-1998 after evening deceased Amena Begum was  at her parent’s house at Sultanpur.
Secondly: On the same night the co-accused Arif Bhuiyan and appellant Delwar happened at the home and took away the deceased.
Thirdly: On 02-09-1998 her dead-body was recovered from the tank of toilet of Abdul Awal, Advocate (PW.11). Since taking away the deceased upto recovery of the dead-body, whether the appellants had any incriminating acts in respect of murder of the deceased.
 
49.    Let us now consider how far the prosecution could prove the above circumstances against the appellants.
 
50.    On exploration of the evidence on record we find that the prosecution case absolutely rest upon the evidence of PWs. 2,3,4,5 and 7 and others witnesses were examined to corroborate them. PW. 2 mother of the deceased categorically stated that on 26-08-1998 at 9:00 p.m. the accused Arif Bhuiyan and Delwar took away the deceased. Subsequently on query on the following day, the accused husband of her daughter Arif Bhuiyan could not give any satisfactory answer in respect of her daughter. Her evidence regarding taking away of the deceased although corroborated by PWs. 3,4,5 and 7 but they failed to provide any evidence against the two appellants regarding any incriminating acts since taking away the deceased upto recovery of the dead-body.
 
51.    Firstly, we shall consider the evidence so far adduced against the accused Masud. We find that out of seventeen witnesses , thirteen witnesses were the locals, of them PW. 6 Jashimuddin he merely stated that he found Masud in front of the graveyard of Sultanpur moving in a very suspicious way, on 26-08-1998 at 12’0 clock. It is pertinent to point out that since that time this witness had no knowledge about taking away the deceased Amena from her parent’s house. So presuming him to move suspiciously warrant no inference of his guilt. Although PW. 13 Mariom, mother of accused Masud Mia made statement under Section 164 of the Code of Criminal Procedure before the Magistrate providing some incriminating facts against her son but in the Court she disowned all such facts. Although she was declared hostile and she was cross-examined by the prosecution but nothing could be elicited to shake its credibility in respect of materials parts of her evidence. Therefore we failed to discover any incriminating material against convict Masud in any manner whatsoever.
 
52.    Now we shall consider the evidence adduced against the rest appellant Delwar Hossain. It transpires that the prosecution alleged that the deceased Amena was taken away from her parent’s house by accused Arif and Delwar but we failed to discover any iota evidence that the deceased Amena went alone with Delwar. It further appears to us from evidence that on the following day of the occurrence at the point of query by the locals both the accused Arif and Delwar were blaming each other in respect of taking away deceased. The circumstances aswellas the probability indicates that deceased Amena should be in custody to her husband. Moreso from the materials on record we succeeded to find that Delwar was an old man aged about seventy years at the time of occurrence, Now he attained the age of eighty one years. So it is the legitimate presumption that he may merely accompanied the accused husband Arif Bhuiyan in his in-laws house for taking Amena. We do not find any incriminating acts furnished by the prosecution against appellant Delwar. Therefore, we find that although first and second circumstances prevails against accused Delwar but there is absolutely no evidence in respect of third circumstance against him. So the above facts indicate that the above circumstances suffer from legal continuity.
 
53.    The rule of circumstantial evidence is that the chain of circumstances must be knitted together closely so asto lead to an irresistible conclusion that the accused alone had committed the offence by excluding the possibility that any other person might have committed the offence. The chain of events must be such that the possibility of innocence of accused is wholly excluded and such facts are incapable of explanation of any other reasonable hypothesis other than the guilt of the accused. Such required circumstances are not present in this case. So the judgment and order of conviction and sentence relying on the circumstantial evidence by the learned Judge of the Court below cannot be accepted.
 
54.    Circumstantial Evidence- All judicial evidence is either direct or circumstantial. By ‘ direct evidence’ is meant when the principal fact, or factum probandum is attested directly by witnesses, things or documents. To all other forms, the term ‘ circumstantial evidence’ is applied; which may be defined, that modification of indirect evidence, whether by witnesses, things or documents, which the law deems sufficiently proximate to a principal fact or factum probandum to be receivable as 'conclusive' when the connection between the principal and evidentiary facts- the factum probandum and factum probnans- is a necessary consequence of the laws of 'Nature '; presumptive’ when the inference of the principal fact from the evidentiary is only probable whatever be the degree of persuasion which it may generate. Circumstantial evidence is the evidence of circumstances as opposed to what is called direct evidence. Evidence which proves or trends to prove the '' factum probandum'' indirectly by means of certain inferences of deduction to be drawn from its existence or its connection with other 'facts probantia' it is called circumstantial evidence. Authorship of a document can be proved like any other fact, by both direct as well as circumstantial evidence.
 
55.    Circumstantial evidence means the evidence afforded not by the direct testimony of an eye-witness to the fact to be proved, but by the bearing upon that fact or other and subsidiary facts which are relied upon as inconsistent with any result other than truth of the principal fact. Circumstantial evidence may be best understood by comparison with direct evidence. It is not evidence direct to the point in issue, e.g. the statement of a person that he saw another give a fatal blow to the deceased, but evidence of various facts other than the facts in issue which are so associated with the fact in issue that taken together they form a chain of circumstances leading to an inference or presumption of the existence of the principal fact. Ina sense circumstantial evidence is also direct as the testimony must be that of persons who saw, heard of perceived the series of other the facts referred to before. ″Circumstantial evidenced is merely direct evidence indirectly applied. And direct evidence, when closely analysed, is found to possess the inferential quality; Circumstantial evidence is something from which facts in issue are to be inferred. It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic in contentions and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis. Circumstantial evidence means a fact on which an inference is to be found. The facts must be closely knitted and must carry conviction to the mind of a Judge. The dogs of the dog squad pointing towards the accused cannot be said to be a circumstance which can exclude the possibility of guilt of any person other than that of the accused or be compatible only with the hypoesthesia of guilt of the accused.
 
56.    The circumstantial evidence in order to sustain conviction, must be complete chain and in capable of explanation of any other hypothesis than that of the guilt of the accused. It must be qualitatively such that on every reasonable hypothesis, the conclusion must be that the accused is guilty not on fantastic possibilities not fresh interference, but rational deduction which reasonable minds make from the probative force of facts if circumstances (AIR 1984 SC 1622, 1994 BLD 33). Where all the evidence is circumstantial it is necessary that cumulative its effect should be to exclude any reasonable hypothesis of the innocence of the accused (1985 BLD (AD) 301). The circumstances from which the conclusion of guilt is to be drawn should be fully established and the circumstances should be of conclusive nature and tendency. There must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that all human probability the act must have been done by the accused and the accused alone ( AIR 1990 SC 214).
 
57.    Court has to conclusively decide the guilt or otherwise of the accused in clear terms but cannot leave the accused to be punished by Allah. This is peculiar and unknown method which the Apex Court strongly disproved and upon reassessment of the evidence on record convicted accused–respdt. since acquitted by High Court Division (10 MLR(AD)175).
 
58.    Sentence can be awarded on circum-stantial evidence provided all circumstances constituted a chain and no link is missing and their combined effect in that the guilt of the accused is established beyond any shadow of doubt (PLD 2003 SC 704). The onus is on the prosecution to prove that the chain is complete (AIR 1984 SC 1622). Where various links in a chain are in themselves complete then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity (41 DLR 11).
 
59.    Where circumstances even if proved, there is a missing link and those circumstances can not lead to any irresistible conclusion that there was no other hypothesis except the guilt of the accused (61 DLR 310).
 
60.    In  a case based on circumstantial evidence the prosecution is under an obligation to establish fully and cogently each of the circumstances, which they want to rely upon [1992(2) Crimes 858]. The proved circumstances should be of conclusive nature and definite tendency unerringly pointing towards the guilt of the accused. It is not necessary that each circumstances by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused and no link in the chain should be missing (PLJ 1999 SC 729). If the circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. In assessing evidence ordinary human probabilities but not the imaginary possibilities to be considered. When there is no direct witness to the commission of murder and the case rest entirety on circumstantial evidence, the circumstances relied on must be fully established. It is necessary to distinguish between primary or basic fact and inference of fact to be drawn from them. The Court has to consider the evidence and decide whether the evidence proves a particular fact or not whether the fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with that aspect of the problem, the doctrine of benefit would reply and an inference of guilt can be drawn only if the proved fact are inconsistent with the innocence of the accused and are consistent only with his guilt( 1990 SC 214).
 
61.    The law in respect of circumstantial evidence is well settled, circumstantial evidence can only be acted upon if each and ever circumstance is individually and conclusively proved and the circumstances so proved mist collectively lead to the only conclusion that the accused persons are not guilty of the crime. The proved circumstances must form a chain so complete by itself that they should  result in the only conclusion of being consistent with the guilt of the accused (1989(2) Crimes 240 Delhi, 37 DLR (AD) 87). If there be any missing link the accused will escape through it, for in that case the prosecution case will not be proved upto the hilt (9 BLT(AD) 107).
 
62.    The rule as regards sufficiency of circumstantial evidence to be the basis for conviction is that the facts proved must be incompatible with the innocence of the accused and in capable of explanation by any other reasonable hypothesis than that of his guilt(43 DLR 512).
 
63.    The rule of circumstantial evidence is that each of circumstances must be knitted together closely so as to lead to an irresistible conclusion that the accused alone had committed the offence by excluding the possibility that any other person might have committed the offence. The chain of events must be such that the possibility of innocence of the accused is wholly excluded and such facts are incapable of explanation of any reasonable hypothesis other than the guilt of the accused. If the circumstances do not provide any conclusive  of the guilt of the accused, he cannot be convicted merely on the ground that such circumstances provide a strong ground for suspicion against the accused. If the theory of guilt and innocence are equally probable, then also the theory that favour of accused must be accepted (1991 BLD 158).
 
64.    Relying on a number of decisions of the Supreme Court of the Sub-continent certain principles which are required to be followed in the criminal cases based on circumstantial evidence have been laid down in the case of Hasan Ali and another Vs. The State reported in 38 DLR(1986) 235 and those are reproduced below:
 
“1. The circumstances for which an inference adverse to the accused was sought to be drawn must be proved beyond reasonable doubt;
2. That circumstances, if proved, must be incompatible with their innocence of the accused and incapable of explanation upon any other reasonable hypothesis that of this guilt. In other words, the inculpable facts must be such that the probability of innocence of the accused is wholly excluded ;
3. If the circumstantial evidence does not furnish conclusive proof of the guilt of the accused he cannot be convicted merely for the reason that the circumstantial evidence provides a ground for strong suspicion against him;
4. If the theory of guilt and the theory of innocence are equally probable, then also the accused cannot be convicted on such evidence.”
 
65.    In the case of Hasan Ali and another reported in 38 DLR 235 accused appellants were alleged to have gone to the house of the victim, called and brought him out and took him with them in the evening of 22-12-81 and the dead-body was found in the afternoon on the next day. In the said case it was held:
 
Merely  because the two accuseds had called and taken away the victim the previous evening it will be most unreasonable to think that none but the two accused had called and taken away the victim. At least such a conclusion is not only beyond the scope but also absolutely unsafe to stretch the imagination so far.”
 
66.   In the case of Abdul Aziz and others Vs. The State reported in 33 DLR 402 it has been held:
 
The evidence that the accused forcibly took away the deceased at night followed by the discovery of his dead-body next morning were not enough for conviction under sections 302,324 of the Penal Code.”
 
67.    In the present case there is no direct evidence of the commission of murder. Nobody saw the accused persons causing any assault on him and the whole case rests on the evidence of the P.Ws. 2–7, 12 but none of them has seen the occurrence.  The law on the point is now well settled. To put it in the words of Munir CJ expressed himself in the case reported in PLD 1950 Lahore 288(FB) in the following language :
 
To find a man guilty of a criminal offence on circumstantial evidence the facts proved must be consistent with the theory of guilt and incompatible with theory of innocence.” It is further observed in the case “no man is to be found guilty on circumstantial evidence unless the circumstances established against him are such that no reasonable hypothesis other than the guilt can be built upon them”.
 
68.    In the case of Eradu and others Vs. State of Hyderabad reported in PLD 1956 (SC) India Page 286 it is held:
 
It is fundamental principle of Criminal Jurisprudence that circumstantial evidence should point inevitably to the conclusion that the accused and the accused only were the perpetrators of the offence and as such evidence should be incompatible with the innocence of the accused.”
 
69.    The instant case is pre-eminently case where there is total absence of physical circumstances and link to connect the accused appellant with the crime and in that situation ocular evidence, to carry conviction, has also not come from unimpeachable source and it is also not supported by any strong circumstances, so as to over come the inherent doubt by which such evidence is necessarily affected.
 
70.    The mode of approach of the evidence adopted by the learned trial Court is unsuitable for formation of a correct conclusion in a case of this nature. The Court below found that the accused were responsible for the crime without considering that the prosecution has failed to built up a link by circumstances so as to connect the appellant with the commission of the crime. There being no direct evidence in case and the circumstantial evidence being not conclusive, we cannot agree with the conclusion reached by the court below.
 
71.    In our opinion, the circumstances by themselves without anything more, are not enough to connect the convict with the crime. It is, therefore, clear that the learned trial Court has committed a serious error of law in basing conviction of the convict on such circumstantial evidence which has failed to connect the appellant with the crime.
 
72.    In the case of Tasliumuddin alias Tasir and three others Vs. State 44 DLR 136 held:
 
The fundamental principle of criminal jurisprudence is that circumstantial evidence should inevitable be to the conclusion that the accused and the accused only were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused”
 
73.    In the case of Rahman Vs. The St ate of U.P. AIR 1972(SC) 110 held:
 
The   circumstances forming evidence must be conclusively established and even when so established they must form such complete chain that is not only consistent with the guilt but it is inconsistent with any reasonable hypothesis of innocence.
 
74.    In the case of State Vs. Khasru alias Syed Mostafa Hossain and another 43 DLR (AD) 182 held:
 
Circumstantial evidences-Its conclusiveness- assessment of evidence- This is a case in which a minor boy, the victim of murder, was called away by and seen in the company of the two young accused for the last time before disappearance and then sometime thereafter the body of the victim was found out. The fact of calling away of victim Khairul by accused Khasru was satisfactorily established as the first circumstance in support of the prosecution and witnesses have also satisfactory proved that the victim traveled with the two accused from their village Noapara to a distant place called Takerhat by bus and got down there at 4-00/4.30 PM. On 04-01-1979. This is the second circumstance proved against the accused. From this point onward upto the time of recovery of the body Khairul at about 3.00/3.30 p.m. on the following day the accused were alleged to have been along with the deceased, the third  circumstance in the absence of ocular evidence of murder, by PWs. 11 & 12. The High Court Division rejected their evidence due to apparent contradiction between their evidence and the statement made by them before the police and also for the reason that their identification of the accused in the TI parade had lost all significance in view of the fact that they had chance to see the accused. There has been no violation of any norm or procedure in assessing the evidence of the said two witnesses for which the finding of fact made by the High Court Division could be disturbed. The position therefore comes to this that the third circumstance, that of, seeing the three boys together near the bank of the river where the victim’s body was found was not satisfactory established. The circumstances of the case can never be said to be conclusive as to the guilt of accused Khasru and his brother Nowab. The High Court Division has correctly applied the rule as to circumstantial evidence in the facts of the present case.”
 
75.    These view receive support in the case of Abdus Samad Vs. The State 16 DLR (SC) 261, Anisur Rahman and others Vs. The State 1986 BLD (AD) 77, 1987 BCR (AD) 187, Taslimuddin alias Tasir Vs. The State 44 DLR 136 and the cases reported in 11 DLR(SC) 365, PLD 1956 SC 286, 33 DLR 402. Nuru and another Vs. The State 1 BLC-582 (Para-14).
 
76.    In the case of the State Vs. Khasru alias Syed  Mostafa Hossain and another 43 DLR(AD) 183 held:
 
“Murder charge resting on circumstantial evidence-Accused’s motive in calling out and accompanying the victim boy- There is absolutely no material on record to show that anybody had at any stage expressed any suspicion that the accused might have had any evil motive in calling out he victim. All that the father said at the trial was that the motive for murder was to give him pain. This is no motive. He did not say why the young accused would cause him  pain. There is also no material to suggest even that there might have been some immediate and on-the–spot reason for the accused to cause violence to the victim or that they were acting at some others’ behest.”
 
77.    According to the submissions of the prosecution and observations made by the learned Judge, it indicates that the accused remained absconding from the place of occurrence for certain period, which is a circumstances leading to the inference of guilt. In our view it is mere submissions and observations of the Court below. The prosecution measurably failed to establish by evidence that soon after the occurrence, the accused had any responsibilities to discharge his duties towards the occurrence. It is well settled that mere abscondence cannot always be a circumstances leading to the inference of guilt of the accused. In this case, there is no evidence against the accused. Hence their subsequent abscondence cannot be treated as a circumstances leading to the inference of involvement in the crime. Mere abscondence cannot always be a circumstances which should lead to an inference of guilt of the accused. Sometimes out of fear and self respect and to avoid unnecessary harassment even an innocent person remain absconding for sometime.
 
78.    With this regard reliance are being placed in the cases of Monsur Ali Vs. The State 13 BLC 196. Similar views were taken in the cases of State Vs. Badsha Molla, 41 DLR 11, State Vs. Mofijuddin 4 BLD-481=10 BLC-93, State Vs. Lalu Mia, 39 DLR(AD)117, State Vs. Sree Ranjit Kumer Promanik, 45 DLR 660, Ali Vs. Crown 6 DLR(W.P.)52, Rahman Vs. The State of U.P. AIR 1972(SC)110, Shajahan Vs. The State 46 DLR-575, Mojibur Rahman Vs. The State 13 MLR-88.
 
79.    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.
 
80.    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 appellants and the crime. So we hold that there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the appellants with the crime of murder. Prosecution utterly failed to bring home guilt to the appellants beyond reasonable doubt.
 
81.    It is pertinent to point out that the learned Judge convicted one set of  accused and acquitted other set over the selfsame of evidence on record. There is no mis-match or distinction between the acquitted accused and the convicts so far as the ocular testimony is concern. The eye witnesses having been disbelieved against one set of accused should not be believed against other set without any independent corroboration.
 
82.    It is true that crime like murder 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 the murder. There cannot be conviction for murder 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).
 
83.    It further appears to us that the instant case is absolutely a case of no evidence against the appellants but the Court below without any legal evidence convicted the appellants in moral view. Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the appellants 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.
 
84.    The appellants were 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 appellants in the crime, they 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.
 
85.    Moreso in all respect, the convict appellants are 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”.
 
86.    So, there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the appellants with the crime of murder. Prosecution utterly failed to bring home guilt to the appellants beyond reasonable doubt.
 
87.    Moreover the impugned judgment and order of conviction and sentence so far as it relates to the appellants in its entirety is not well founded in the facts and circumstances of the case. We have gone through the decisions as referred by the learned Deputy Attorney General. We are in respectful agreement with the principles enunciated therein but the facts leading to those cases are quite distinguishable to that of the instant case. Therefore we are unable to accept her submissions. On the contrary the submissions advanced by the learned Counsels for the defence prevail and appear to have a good deal of force.
 
88.    In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the impugned judgment and order of conviction and sentence so far as it relates to the appellants suffer from legal infirmities which calls for interference by this Court. Thus the appeals having merit succeeds.
 
89.    In view of foregoing narrative the appeals are allowed.
  1. The impugned Judgment and order of conviction and sentence dated 27-05-2007 passed by learned Additional Sessions Judge, Narsingdi, in Session Case no.95 of 2003 so far as it relates to the appellants Masud Mia and Delwar is hereby set aside and they are acquitted from the charge leveled against them.
  2. The convict appellant Delwar Hossain Bhuiyan alias Md. Delwar Hossain alias Delwar Hossain who is now in bail be discharged from his bail bond.
  3. Convict appellant Masud Mia alias Masud be set at liberty if not detained in any other case. 
90.    The Office is directed to send down the records at once.
 
         Ed.