Md. Nur Nabi Vs. The State 2017 (1) LNJ 349

Case No: Criminal Appeal No. 1377 of 2014

Judge: Md. Nizamul Huq. J.

Court: High Court Division,

Advocate: Mr. Shihabuddin Mahmud,

Citation: 2017 (1) LNJ 349

Case Year: 2016

Appellant: Md. Nur Nabi

Respondent: The State

Subject: Criminal Law

Delivery Date: 2017-06-20

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Md. Nizamul Huq, J

And

Md. Faruque (M. Faruque), J.

Judgment on

31.01.2016 and 01.02.2016

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Md. Nur Nabi

. . Convict-appellant

-Versus-

The State

...Opposite-party

Evidence Act (I of 1872)

Section 3

Last seen theory—In this case only theory of last seen has been applied but after the last seen also there are evidence that the accused gave explanation to effect that the accused told that the victim has gone to his grandfather’s houses as such a suspicion is there regarding involvement of the appellant in the murder and a suspicion however strong that might be cannot be the basis of conviction. In absence of reasonable explanation from the accused side it was held that-the last seen theory to implicate him is applicable. In this case there is an explanation given by the accused and that explanation could not be negated by the prosecution side and as such this decision does not apply suitable in favour of the prosecution in the facts and circumstances of the case. It is seen that in this case there was no other reasonable explanation except that the persons was present with the deceased and in the instant case there is a reasonable explanation as to the said departure of the victim from the group of the company because if the statement of the accused is believed that the victim has gone to the house of his   grandfather, then the last seen theory with the victim and the accused does not remain and something more fact come about the existence of the victim in other places but those things have not come before this court after reasonable  explanation given by the accused.                      . . .(37 and 41)

Evidence Act (I of 1872)

Section 60

Hearsay Evidence—In the said matter, we find one explanation by the accused that the victim has gone to the grandfather house. That explanation has tried to be negated by the statement stating that Abdul Hamid came and said that the victim has not gone to grandfather house and this statement is a hear say evidence received from Abdul Hamid by Kulsum. Until and unless Abdul Hamid comes to the court and says this, this statement of Kulsum remains hear say evidence and can not be accepted in the eye of law.       . . . (41)

Evidence Act (I of 1872)

Section 3

Benefit of doubt—When reasonable explanation has been given the accused is entitled to get benefit of doubt. At the instant case we have already discussed that there is some sort of departure from the FIR in the evidence and the effect of departure also we have considered the learned advocate for the defence has placed some decisions which we have mentioned earlier. In all the decisions we get if there is departure from the FIR then the accused may get benefit in the case and the value of departure will consider how much benefit the accused can claim from the case. Regarding the identification of the body it was also stated that the father identified the body seeing the red shirt only. The body was at such a condition that the body could not be identified. On perusal of this it is clean that medical jurisprudence does not show to support that this body was under water within less than three days time. Considering all these things we are of the view that in these aspects also the case of the prosecution has failed, to be proved beyond reasonable doubt. Considering all these things we are of the view that in the instant case upon consideration of the facts and circumstances of the case and on materials on record the prosecution could not prove this case against this accused appellant beyond all reasonable doubt and as such the accused is entitled to get acquittal.                                           . . .(42)

Evidence Act (I of 1872)

Section 118

Child Witness—We got the evidence of P.W-2 that Majid also attended the marriage ceremony. He is a child witness in all respect and normally child witnesses do not give any false statement but it should also to be remembered in mind that they can lie if trained, specially when enmity between the parties are admitted. In the instant case, we find that this P.W-10 a child witness has stated the evidence but there are some discrepancies in the evidence of P.W-2 her father and herself and regarding the statement of this witness no corroboration is there and as such we feel that although the evidence of this witness cannot be discarded as a whole but it cast a doubt in our mind as to the absolute truthfulness of this evidence.                 . . .(42)

Evidence Act (I of 1872)

Section 45

Time of Injury—With respect the time and manner of occurrence the learned advocate for the appellant has seriously raised question. He has shown us the postmortem report which does not show any age of injury in the post mortem report although there is no column to write age of injury but in a certificate of report it is a duty of the doctor to write the age of injury in that. In absence of that it is not possible to prove at what time the injury took place. In the instant case we also find that no age of injury has been given and as such the prosecution lack in material facts to show that when the occurrence of actual death or injury was caused.    . . . (42)

Mr. Shihabuddin Mahmud, Advocate

. . .For the appellant

Mr. Md. Moniruzzaman (Rubel), D.A.G

with

Mr. Abul Kalam Azad Khan,

Mr. Md. Abdul  Bari, A.A.Gs.

. . . For the State

JUDGMENT

Md. Nizamul Huq, J: This appeal has been filed by Md. Nur Nabi, the convict appellant against the judgment and order dated 27.01.2014 passed by the learned Sessions Judge, Noakhali in Sessions Case No. 150 of 2009, arising out of Kabirhat Police Station Case No.12 dated 22.07.2008, corresponding to G.R No. 877 of 2008 under Section 302/34 of the Penal Code convicting the appellant under Section 302 of the Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of  Tk. 10,000/- (ten thousands) in default to suffer rigorous imprisonment for a further period of 01(one) year.

2.            The prosecution case in  short is this that one Md. Abu Taher, being informant lodged an FIR on 22.07.2008 at 23.30 hours with the Kabirhat Police Station contending inter alia that on 19.07.2008 the informant went out from home in the morning for work and after returning home in the evening, learn that his son MaHYPERLINK "file:///Majid"jid aged about 13 years did not return home and the daughter Kulsum Khatun aged about 10 years informed him that on 19.07.2008 at about 10.00 a.m one Md. Nur Nobi, the accused appellant called his son from home with a view to visit their paddy field and on the same date at about 12.00 noon Nur Nabi returned home alone  and as such he asked him about the where about of Md. Abdul  Majid and in reply Nur Nobi disclosed that Md. Abdul Majid went to his maternal grandfather’s house, that informant later on came to learn that Md. Abdul Majid did not go to his maternal grandfather’s house and thereafter the informant had searched for his son in all possible places and on 22.07.2008 at about 11.00 A.M one Abdur Rahman of Village Nalua announced from mosque tried to attract the attention of public that dead body of a boy was found floating on water in the paddy field of one Syed Member of Village-Chabirpaik, and being attracted by the announcement the informant and many people of the locality went there and saw the dead body and the informant had indentified the same as his son Abdul Majid, and the dead body  was removed by him from the water and kept it in a nearby dry place and by turning round and round the dead body he found that half portion of tongue was out of mouth and pressed by teeth, that the informant had enmity with father and uncles of Md. Nur Nobi over landed property and civil and criminal cases were pending among them in court and about 0.20 acres of disputed land claimed by the father and uncles of Md. Nur Nobi was under the possession of the informant and on several occasions Md. Nur Nobi’s father and uncles tried in vain to take possession over the aforesaid disputed 0.20 acres land and as such informant had grave doubt that Md. Abul Kalam, Abdul Malek, Mahbubul Hoq, Abdul Latif, Abdul Khaleque out of previous plan called out informant’s son Md. Abdul Majid through Md. Nur Nabi and called him and for taking legal action against them the informant had lodged the F.I.R.

3.            The case was investigated by the police and Charge sheet No. 95 dated 29.07.2008 under Sections 364/302/34 of the Penal Code was filed against accused Abul Kalam, Mahbub alias Mahbub Khalek and Rashid and supplementary charge sheet no.95(1) dated 29.10.2008 under Sections 364/302/34 of the Penal Code was submitted against accused appellants Md. Nur Nobi as he was minor and his trial was to be held  in the Juvenile Court under the Children Act. 

4.            During investigation the accused appellant was arrested and he was taken to Jail he was also taken up remand by the police for two days.   The inquest also held over the dead body on 22.07.2008 at 14.30 hours as per Kabirhat Police Station General Diary No. 701 dated 21.07.2008 and post Mortem examination on the dead body was held on 23.07.2008 at 9.20 hours at Noakhali General Hospital and cause of death was opined as following: “In our opinion death was due to asphyxia as a result of throttling which was ante mortem and homicidal in nature.”

5.            One statement of Bibi Kulsum was recorded by the Magistrate on 04.08.2008 and in her statement she stated that on 19.07.2008 at about 8.00/9.00A.M. her brother Majid (victim) played with her and some stage Nur Nobi came there and asked Majid to go with him for viewing their paddy field, that Majid told Nur Nobi that he would go to Chittagong and in reply Nur Nobi told that he also would go to Chittagong with him but before that they would go to see their paddy field and accordingly both of them went out form home to see paddy filed, at about 12.00 A.M. Nur Nobi returned home and in reply to the question made by the Bibi Kulsum, Nur Nobi told that Majid went to his maternal grandfather’s house, at about 3.00 P.M another brother of victim came home with food for her and the witness asked him about Majid and in reply he told that Majid did not go to the house of her maternal grandfather’s house, that on that date marriage ceremony of her maternal uncle was held at her maternal grandfather’s house and except she and Majid all other members of their family went to join in the marriage ceremony.

6.            In this case the trial against Nun Nobi being a minor was held in the Juvenile Court where charge under sections 302/34 of the Penal Code was framed against this accused-appellant. Upon which he pleaded not guilty and claimed the trial.

7.            During trial the prosecution examined 13(thirteen) witnesses in support their case and the defence examined none. The accused was examied under Section 342 of the Code of Criminal Procedure and he again claimed innocence and denied to give any defence witness.

8.            Upon compilation of the trial the learned Judge by his judgment and order of conviction and sentence dated 27.01.2014 found the appellant guilty under Section 302 of the Penal code and sentenced him to suffer imprisonment for life and to pay a fine of Taka 10,000/- in default to suffer rigorous imprisonment for further 01(one) year.

9.            Against the said judgment and order of conviction and sentence the accused appellant filed appeal in this court being Criminal Appeal No. 1377 of 2007. The appeal has been admitted and it is now before us for hearing.

10.        P.W-1, Constable 580 Shahidul Haque stated in his evidence that he was posted in Companigonj Police Station as constable. On 22.07.2008 he was posted as a constable in District of Noakhali at Kabirhat Police Station. On that day he went to Paik Para village of Kabir Hat Police Station with S.I Shohel Mosharaf Hossain. Dead body of Abdul Majid was recovered from inside a paddy field. Abdul Majid is aged about 11(eleven) years. The said Daroga prepared inquest report and the dead body was decomposed. As a result no specific idea regarding the injury could be gathered.  On the direction of the Daroga, he took the dead body to the Morgue, where Postmortem was done. After the Postmortem in Noakhali General Hospital, the dead body was given to the relatives of the victim.  He gave the red check shirt from the body of Mojid to investigating Officer. His Cross-examination was declined. 

11.        P.W-2 Md. Abu Taher, the informant of this case stated in his evidence that his son Abdul Majid has been killed. On 19.07.2008, Saturday at about 10.00 a.m he was called by accused Nur Nobi, to see the paddy. He did not see that. At that time he was present in a marriage ceremony adjacent to their house. His daughter Kulsum was in his house at that time. After returning home he did not see Abdul Majid in the house. Kulsum told that Nur Nobi has called Majid out. When asked Nur Nobi replied that, Majid has gone to the house of his grandfather. That house was searched but he could not be traced out. After three days, it was propagated in mike, that a dead body of a boy has been recovered in the paddy filed of Sayed Ahmed. Hearing this he went there, saw the dead body of Majid and identified it.  Witness Abdur Rahman  in this respect informed the local Chairman Rahim. The Chairman informed the police. The police came and recovered the dead body. The dead body was about to decompose and red shirt was with the dead body of Abdul Majid. The daroga prepared the inquest report. He proved the inquest report and his signature therein, which is marked as exhibit-1 and 1/1. He doubted that Abul Kalam, Mahabub, Manik, Khalek and Latif are murders and they have called Majid by Nur Nobi and  Nur Nobi told them falsely that Majid has gone to her grandfather’s house and he lodged the ejahar. The ejahar and his signature therein, are marked exhibit 2 and 2/1. The police sent the dead body for post mortem examination to morgue. After the post mortem examination he received the dead body and buried it Police seized the red color Shirt and Lungi of Majid from his body and also took two pictures of the dead body which is marked as exhibit-3 and 3Ka.  In cross-examination he stated that his brother in law is kamal. He went to the marriage of Jarina daughter of Kamal. His wife Amena Khatun, son Abdul Shahid, daughter Shakhina Khatun, son of Abdul Hamid and son Abdul Hannan went to marriage with him.   They went to marriage on Friday and he returned on Saturday. After that Abdul Majid and others returned home.  He returned home at about 10.00 a.m. The marriage ceremony was on Friday, Majid was serving in a tea stall. From then came home on Friday for the marriage and he attended the marriage ceremony. On that date at noon Majid returned home. Kulsum did not go to marriage ceremony, she is a student of class two.  Her present age is 08 (eight) years. It is not a fact that Kulsum went to the marriage ceremony also. He has got case with father of accused Nuru Nobi.  Abul Kalam, the father of Nur Nabi filed criminal case against him before this occurrence and there is boundary dispute with them. It is not a fact that Kulsum did not tell him that Nuru Nabi called Majid. Kulsum told in presence of the home people that Majid called Nuru Nobi. It is not a fact that Kulsum stated as trained by him, or actually accused-Nur Nobi has not called his son Abdul Majid. The house of Kader’s father is at the south of his house. He cannot say the name of the father of Kader. In the west, the house of Rafique is there and in the east is Kabir’s house.  People live in those houses. Kader will give evidence. Witness Nuruzzaman is his beai. Witness Nur Nobi is his younger brother. Saddam and Abul are sons of his brother. Sakhina is his daughter. Hamid is his son. Ilias is the husband of his nice.  Witness Samsunnahar is the wife of his brother. Witness Nurjahan is his sister. The dead body of Majid was decomposed and swelling condition. There was sign of injury in the tongue. Red marks was there in the body. Accused Nur Nabi earlier did not work in a tea stall. It is not a fact that accused Nur Nobi does not stay in their house. The police has arrested accused Nur Nabi from Noakhali Poura Market.  He did not lodge any General Diary between 19.07.2008 and 22.07.2008 in any police Station.  He did not make any miking after Majid became traceless. It is not a fact that he managed Kulsum to make a statement that Nur Nabi has called Majid or because of enmity he gave false evidence against Nur Nobi.  There was no Salish regarding Majid before occurrence. It is not fact that Majid has been murdered by any other person or that accused Nur Nabi has been entangled in this case for enmity falsely. Age of late Majid was about 12 (twelve) years. He cannot say the age of accused Nur Nabi. Daroga wrote the ejahar on the stated of him. After writing, it was typed in a computer. Then he seized there admittedly truth. He has gone through that. It is not fact that actually the real murderers have been kept hiding. Because of enmity, false case have been lodged against accused Nur Nabi or for nothing he has been doubted or in a false case I deposed falsely.

12.        P.W.3 Md. Nurer Zaman stated in his evidence that he knew deceased Majid. On 22.07.2008 at about 11.00 a.m he was going to his house from the tea stall of Rabi.  His home is at village Chabir Paik village of Kabir hat Police Station in District of Noakhali.  He saw people running. He heard the declaration made by Abdur Rahman in mike regarding a dead body of a boy.  He saw a dead body lying with face on the ground in the paddy field of Syed Member where was the dead body of Abdul Majid. Red shirt was in the body of Majid. Police came and recovered the dead body and prepared inquest report, then sent it to the morgue for post mortem. The dead body was almost decomposed and soiling. He proved the inquest report and his signature therein and marked as exhibit 1, 1/2. Abu Taher told that accused Nur Nabi took Majid on Saturday 19.07.2008 to paddy. After that Majid was not seen living. The dead body was recovered after some days. He also told of many other accused-persons. There are other cases against those persons. The instant case is only against the minor accused. In cross examination he stated that he went home after hearing declaration in the mike and seeing the dead body. He against went there when police came after 12.30 p.m. He signed the inquest report at about 1 p.m. There are dispute between Abu Taher with father and uncle of Nur Nobi. Abu Taher is his beai. The accused-persons are also his relatives. It is not a fact that Abu Taher did not tell him that Nur Nabi called Majid. He did not hear the prior occurrences of recovery of the dead body. After recovery of dead body he heard about it. At that time the marriage of daughter of the brother in law of Abu Taher was there. He does not surely know whether Majid served in a tea stall also he does not know about the theft and Salish.  He heard after arrest of Nur Nobi by police that accused Nur Nobi work in tea stall. Accused Nur Nobi was present in the court today. It is not a fact that he did not hear anybody to tell the name of Nur Nabi as killer of Abdul Majid, son of Abu. Taher. It is not a fact that on 19.07.2008 Abu Taher did not tell him the fact of calling Abdul Majid by Nur Nobi or that he deposed falsely in the interest of Abu Taher as he is his relative.

13.        P.W.4 Md. Elias stated in his evidence that he knew deceased Majid. His father Abu Taher is a neighbor of him. On 22.07.2008, Tuesday at about 11.00 a.m the dead body Abdul Majid was recovered from the paddy field of Syed Member. Abdul Malek, Son of Syed Member went to Paddy field to see the paddy and seeing the dead body he informed Abdur Rahaman. Abdur Rahman informed everybody regarding the recovery of dead body.  He went there and saw the dead body. Regarding the recovery the dead body it was declared in the mike of mosque. Local Union Parishad Chairman was informed. Hearing the declaration of mike from mosque Abu Taher came and identified the dead body on seeing the red shirt in the dead body. Police came and recovered the dead body. It was kept in the front of the house of Abdur Rahaman. The dead body was almost decomposed. The tongue was outside. The skin some places were loosed. Police came and prepared inquest report. At that time Abu Taher  informed that accused Nur Nobi on 19.07.2008, Saturday called Majid. He knows accused Nur Nobi. Who is present in the court. He was cutting grass in the paddy field at near the house of Sayed Member. He saw Majid and accused Nur Nobi at the bulk of the paddy filed. On that day at that time in the said paddy filed Abul Kalam, Mabul Haque, Abdul Latif, Kahlek and Malek was there. Abu Taher expressed that through accused Nur Nobi his son was called and then killed by Abdul Kalam, Abdul Haque, and Latif, Malek etc. In cross-examination he stated that informant Abu Taher is resident of his locality. The name of his wife is Maya Begum and mother in law’s name is Hazera Khatun.  Abur Taher and Hazera Khatun are full brother and sister. Informant Abu Taher is his full uncle in law and he is neighbor of Abu Taher.  He came to depose as a neighbor. Mojid used to work in a tea stall. He cannot say whose tea stall was that. At that time Majid was aged about 10/11 years. Kulsum at present is aged about 8/9 years.  Nurnabi himself plough in his house.  Latter on he heard that accused Nur Nobi worked also in a tea stall of Municipal Market of Maijdi. Since long there is dispute between Abut Taher and father, uncle of accused Nur Nobi.  The occurrence is of month July.  In our their locality no paddy was there in their paddy filed in the month of July. At that time it was the month of Ashar. At the south of his my house, the house was of the the people who came from Hatia. At the North is the house of Chunnu. At the west is the house of Chowkider.  The people of those houses also came to see the dead body. The place from where the dead body was recovered was in front of the House of Abdur Rahaman Biswas. Abu Taher told regarding the occurrence on the date of recovery of the dead body regarding the calling of Majid by accused Nur Nabi, Local people were there. He does not remember name of all of them. Majid had Lungi in his wear. It is not a fact that, Abu Taher did not state in his presence regarding the calling of Majid by Nur Nobi.  There are trees surrounding his house and there is yard in front of the house.  There is also cowshed and Kitchen room in the house. His house at the North Biti, cow shed is at the South Biti and his kitchen is at the west Biti. The east side and south side is opened.  It is not a fact that accused Nur Nobi has been implicated falsely in this case or informant Abu Taher is his maternal uncle in law as such he gave false evidence. The dead of Abdul Majid could be indentified because of shirt, the shirt is read shirt.  Abdur Rahaman is the leader of local area or the Member of Local Union Parisad. Abdul Malek (Manik) first of all saw the dead body in the field and informed others. At that time there was paddy in the paddy trees which was not ripen, Chara only came out. It was not ripen. It is not a fact that he did not see Abdul Majid and Nur Nobi in the bulk of paddy field nor gave false evidence in the false case lodged against Nur Nabi.

14.        P.W-5 Md. Abdur Rahaman stated in his evidence that he is an agriculturist. His village is at Nalua, under Police Station Kabir Hat and District- Noakhali. On 22.07.2008, Tuesday at about 10.00 to 10.30 a.m Abdul Malek, son of Syed Member informed them that a dead body is lying in the paddy field. Abdul Malek came to their house and informed them. He went to the paddy filed and saw the dead body. When he went he called Ilias with him. He is the secretary of Sabir Paik Jame Mosque and the matter of recovery of the dead body was propagated from the mike of that mosque. Local Union Parisad Chairman Abdur Rahim was also informed.  He informed the police regarding this. People came from all around and Abu Taher also came. He identified the dead body of his son Majid by seeing the shirt. The dead body was almost decomposed. The tongue was almost out. Police came and recovered the dead body. The inquest report was prepared. Where he put his signature. The report and signature are marked exhibit-1 and 1/3. Later on the dead body was sent to morgue.  He has not heard how the deceased died. Abu Taher only told that his son was called by accused Nur Nobi on 19.07.2008. After that Majid was not found. On 22.07.2008 the dead body was recovered. In cross examination he stated that it is not fact that the matter of calling Majid by accused Nur Nobi was not told by Abu Taher to Daroga in presence. He knew Majid.  Abu Taher the father of Majid identified the dead body by seeing the shirt. Majid use to work in different tea stall. He worked in tea stall of that Bazar of Abdulla Mia in the tea stall of Raja Mia.  Friday was the date of marriage ceremony of Majid’s maternal uncle Kamal. He went to that ceremony. Abu Tahers house is about one kilo miter distance from marriage house.  Before telling to the Daroga he did not know anything regarding the abduction of Majid. He did not know even that Majid is not available. There are cases and dispute over the lands in between father, uncle of accused Nur Nobi and Abu Taher.  He became sure that the dead body is of Majid by seeing the shirt. His father Abu Taher has confirmed it. After Nur Nobi was arrested then he heard that he was arrested  from Poura Market ( Maijdi). Nur Nabi never misbehaved with him. He knows him as a good boy. The Paddy which was available in the paddy field where dead body was recovered was about to start ripening. Paddy field was there in and around also. 3/4 feet water was there in the paddy field. The bulk could not be seen, it was some merged. Malek has not been examined. He was absconding.   God knows whether he had any weakness in his mind upon seeing the police. Abu Taher might have told before police regarding taking of his son Abdul Majid by accused Nur Nabi falsely but he has heard it by his own ear that Abu Taher told it. Only God knows whether the occurrence is true or false.

15.        P.w-6 Hafez Abul Kalam Azad stated in his evidence that he knew Majid.  He is the Imam of Chabir Paik Jamee Mosque of Kabir Hat Upazilla. The house of informant Abu Taher is about 100(one hundred) Yard distance from the mosque. The paddy field of Syed Member is about 250(two hundred fifty) Yard distance from the mosque. On 22.07.2008 on Tuesday the dead body of Majid was recovered from that paddy field. On Wednesday before Asar prayer he led the Janaja prayer of Majid. The dead body was decomposed spreading bad smell. The Janaja was held after post mortem. Kabir a Musulli of Masquo informed him through mobile Phone that the dead body of Majid has been recovered.  He told to pray Janaja. Kulsum told him that on 19.07.2008 accused Nur Nobi at about 10.00 a.m to 10.30 a.m. called Abudl Majid to in the name of seeing the paddy. Majid then went with Nur Nabi. After that Majid was not found alive. Later on the dead body was recovered from the paddy filed of Syed Member. Investigation Officer has examined him. Said Kulsum is the daughter of Abu Taher. In cross examination he stated that he has not stated before the I.O regarding the talk of him with Kulsum daughter of Abu Taher.  On the next date of the Janaja he had the above mentioned talk with Kulsum. It is not a fact that Kulsum did not tell him that Nur Nabi called Majid to see paddy in the field.  Deceased Majid used to work in tea stall.  Majid committed theft of the money of workers who work for mosque and that money was returned by Abu Taher the father of Majid.  I have also heard regarding the bad habit of Majid from the teal stall.  He knows accused Nur Nobi.  He heard that he worked in a Chicken Farm at the north. Latter on he heard that he worked in a tea stall of Maijdi.  Kulsum is aged at about 8/9 years. Only God knows whether the statement of Kulsum has been taught by her father Abu Taher. Accused Abu Taher has also told him regarding the calling of Majid by accused Nur Nabi basing on the statement of Kulsum.  It is not a fact that he heard wrongly regarding the statement of Kulsum or being influenced by Abu Taher keeping secret the proof he gave false evidence or Kulsum told him false. It is a matter of Kulsum whether she spoke the truth.  It is fact that I have heard it and I have been told. There is earlier dispute between Abut Taher and  the father and uncle of Nur Nabi. It is not fact that, Abu Taher did not tell him regarding anything in respect of Kulsum.

16.        P.W-7, Abdul Barik stated in his evidence that deceased Majid and accused Nur Nabi are the residents of their area. As such he knows them. Accused Nur Nabi is present in the court. On 22.07.2008 he went to the market and heard declaration in Mike that one dead body is lying in the paddy filed of Syed Member. His home is at village-Chabir Paik, Police Station- Kabir hat. He saw the dead body of Majid.  Abu Taher identified that dead body. There was a red shirt in the body. Police came and the dead body was sent to morgue after preparation of inquest report for post mortem examination. The Janaja of Majid was held on Wednesday the next day.   He was present there. He heard that accused Nur Nabi called Majid to see the paddy.  After that Majid was not found alive. After that dead body of Majid was recovered. This statement have been told by Abu Taher and his daughter Kulsum in presence of everybody. He has heard it from their mouth. The Investigation officer has examined him. In cross examination he stated that after 8/10 days of recovery of dead body the investigation Officer examined him.  He does not remember whether he has told the Investigation Officer regarding the hearing from Abu Taher and Kulsum that Nurnabi has called Majid.  It is not a fact that Abu Taher and Kulsum did not tell in his present anything that Majid was called by Nur Nobi or that he gave false evidence on being taught by Abu Taher. There is dispute between Abut Taher and the father/uncle of Nur Nobi. Deceased Majid used to work in a tea stall.  Kulsum is aged 7/8 years. He does not know whether Kulsum has by taught by her father and mother. Abdur Rahaman House is at South of place where the dead body was recovered. The dead body was almost decomposed. In presence of people by the dead body Abu Taher and Kulsum told that  Majid was called by accused Nur Nabi and he has heard it along with others.

17.        P.W-8 Ahsan Ullah stated in his evidence that  their neighbor Majid has been killed. Accused Nur Nabi is also their neighbor.  He is present in the court. Hearing the declaration in Mike of Mosque he saw the dead body of Majid in the paddy filed of Syed Member. He had red colored shirt in his dead body. Abu Taher identified that dead body. Abdul Majid is the son of Abu Taher. Police recovered the dead body and prepared inquest report and sent it to morgue for post mortem examination and after that the dead body was buried.  He was not present in the Janaja. Kulsum daughter of Abu Taher told that Accused Nur Nobi called Majid to see the paddy on 19.07.2008.  After that Majid was not found alive. Later his dead body was found. In cross examination he stated that investigation Officer examined him, he has told everything, after some days of recovery of the dead body, the Investigation Officer examined him. It is not a fact that he has not told before the Investigation Officer that he heard from Kulsum that Nur Nobi called Majid to see paddy or Kulsum or Abu Taher did not tell him that Nur Nobi called Majid. He has not heard anything regarding calling of Majid by Nur Nobi before the recovery of the dead body. The dispute between the father, uncle of Nur Nob and Abud Taher were from before.  He has heard that Majid committed theft in the cash box of shop but he was not present in any salish regarding that matter.  He knows accused Nur Nabi and know him as good.  He has not heard anything bad. He has heard that he works in a tea stall of Pouro Bazar of Noakhali town (Maijdi).  He does not know whether Kulsum’s father and mother taught him regarding this things.

18.        P.W-9 Mohammad Arfan Ullah, Judicial Magistrate stated in his evidence that he was posted in Noakhali court on 04.08.2008 in the same post on that date. He recorded the statement of witness Kulsum under Section 164 of the Code of Criminal Procedure. Power of this recording of statement was given in his favour by notification No. F Bichar-1/4- C-1/2007-215 of the Ministry of Law Justice and parliamentary affairs Bichar Shakha-1 Bangladesh Secretariat on 08.06.2008 and his name is available at the serial No. 30 of notification.  He recorded the statement of Kulsum on the basis of her statement latter on he read over and admitting truth she put left thumb impression. There are the statement of witness Kulsum and her signature therein marked  exhibit-4 and 4/1. Official seal of him is present there. In cross examination he stated that he has recorded the statement as have been told by the witness. He has no special knowledge regarding the local language of Noakhali. He has written the name of Bibi Kulsum  below the LTI of her. Investigating Officer produced Bibi Kulsum before him. He has read it to her but in the statement nothing is written regarding hearing and reading. Investigating Officer produced witness Bibi Kulsum to him and then he left the place; when the statement was recorded at that time investigation officer was not in his Khash Kamra. The age of Bibi kulsum has been written as about 10(ten) years. This witness is a first class Magistrate. It is not a fact that he has recorded the statement given by police in the name of Bibi Kulsum or without verifying he has recorded it as directed by the police.

19.        P.W-10 Bibi Kulsum Khatun stated in her evidence that she is aged 10 years old. Her house is at Chabir Paik village of Kabir Hat Police Station. Deceased Abdul Majid is her brother. She and her brother Abdul Majid were playing in the house of them. On 19.07.2008 accused Nur Nobi came to their house and called Abdul Majid to the field of Paddy. Accused Nur Nobi is present in the court today.  At about 10.00 a.m before living on his request, Abdul Majid gave some straw after cutting to give food to the cow. After that Abdul Majid left with Nur Nobi. After that Nur Nobi came back but Abdul Majid did not return.  At about 12.00 noon Nur Nobi came back alone and she asked about Majid. Nur Nobi replied that Majid has gone to his grandfather house. On that date her father and mother went to the marriage of his cousin sister Jarina. In the house she and her elder brother Abdul Majid were there.  After that another brother of them Hamid came from the house of grandfather.  She asked him regarding Majid and he told that Majid has not gone to the house of grandfather. At that time Majid was searched. After about 04(four) days, the dead body of Majid was recovered in the paddy field of Nur Nobi. She has seen the dead of her brother Abdul Majid.  It was almost decomposed and bad smell was coming out. Declaration was made in the mike of mosque and they went to see the dead body and got information that the dead body was of Majid. She has given a statement before the Magistrate regarding the occurrence. He put her left thumb impression in the statement. Even before this occurrence, Abul Kalam, father of accused Nur Nobi, wanted to kill him by downing in water. In cross examinations he stated that they are five brothers and two sisters this witness has got two brothers and one sister younger to her. It is not a fact that accused Nur Nobi did not call Majid.   She is a student of class two. Their house is at a distance of one mile. Majid could walk singly. He could go to Dhaka and Chittagong singly.  Majid before this occurrence worked in a shop of bakery. When there was Salish regarding the theft of money her father returned the money. Majid was not involved in the commission of theft of the money of the labour of the mosque. It is not a fact that on 19.07.2008 she was not present in the house and she attended the marriage of Jarian and whatever she has told involving Majid that has been taught by her father. Accused Nur Nobi used to work in a tea stall. The month of July, Saturday is of which year, she cannot say. It is not a fact that at the time of occurrence no paddy was in the field. Majid had nothing in his wearing.  At time of cutting straw he had wear lungi and shirt in his body. He has given statement before the Investigation Officer.  It is not a fact that he has not told before the I.O that accused Nur Nobi called Majid or that there is dispute between her father and the father of accused Nur Nobi regarding land, and she give false evidence against Nur Nobi on the instruction of her father. Accused Nur Nobi and themselves has same house but because of the dispute the talking and walking relationship are closed. She can write her name now. It is not fact that the accused Nur Nobi is not involved in the killing of Majid or that Majid might have been killed by some other persons as he has got habit of committing theft or that accused Nur Nobi is not at all involve in this murder nor he gave false evidence. Nobody of the tea stall has beat her brother Majid at any time. It is not a fact that the dead body of Majid was not recovered in the paddy filed of accused Nur Nobi. Before going with Nur Nobi a straw of grass was cut. It is not a fact that she and Majid did not go to the marriage of Jarina her maternal sister. She cannot say whether anybody else saw Majid going with accused Nur Nobi. There were people in the house. About 50/60 people were present. She gave correct statements. 

20.        P.W-11 Nurjahan Begum stated in her evidence that   Abdul Majid is the son of her Bashur (husbands elder brother). He has been killed on 19.07.2008. At about 9.55 hours, he was called by accused Nur Nobi. The name of her village is Chabir Paik, Police Station Kabir hat. Their house and the house of Abdul Majid are side by side having distance about 100(one hundred) Yards. She saw Majid and Nur Nobi going to paddy filed jointly.  Accused Nur Nobi was present in the court. After that Majid was not seen alive. At about 12.00 noon Nur Nobi only came to the house and his body was wet.  On that day afternoon accused Nur Nobi and his father were not present in their house. After some days on 22.07.2008 the dead body of Majid was recovered in the paddy field of Syed Member.  At that time, that land was barga cultivated by Accused Nur Nobi. Regarding the recovery of the dead body declaration in the Mike of Mosque was giver. Other people along with the father of Majid went there. Majids’ father identified the dead boy as of Majid. He cried that he has saw the dead body of Mjid. It could be identified by seeing Shirt and Lungi. He has passed S.S.C examination. The Investigating Officer has examined him. In cross examination she stated that her husband’s name also is Nur Nobi, who lives in Saudi Arabia. The father’s name of accused Nur Nobi is Abul Kalam.  Her husband Nur Nobi is an accused in the case being G.R 834/2008 (sudaram) lodged by Abul Kalam. The present case was filed after the file of earlier case. It is not a fact that father of accused Nur Nobi has filed a case against her husband and as such she gave false evidence against accused Nur Nobi nor he did not see Majid and Nur Nobi talking themselves. The shirt of Majid was of sweet color.  He does not remember what was the color of Lungi. Majid’s dead body had no Lungi wearing.  There was no insasant rain on that day.  The gate of their house in Southern.  The gate of the house of accused Nur Nobi was also southern. The house of Nur Nabi is at the south of their house. Between the two houses there are garden of trees.  Accused Nur Nobi’s house is at about 100 (one hundred) Yard distance from their house.  There are dispute between Majid’s father and accused Nur Nobi’s father. Sometime there are quarrel between them. Talking relationship was closed. Majid worked at Dhaka.  The work was taking paper and pen.  Majid and Nur Nobi although were of same age but Nur Nobi was older but they used to walk and move jointly.  She saw Majid and Nur Nobi talking in front of Majid’s house at 9.55 a.m.  After that she saw them going together. At about 12.00 noon she saw accused Nur Nobi in their house. On that day Majid and her sister Kulsum was in house.  Others went to marriage of Jarina.  On that day, in the afternoon the mother of Majid came back home. It is not fact that, one day Majid and Kulsum were not in their house.  At the time of occurrence her husband Nur Nobi was in the country. It is not a fact that she did not tell to the I.O that she saw Majid and Nur Nobi jointly talking or he gave false evidence or Nur Nobi at noon took his bath quickly, She has not told to the I/O that he left after taking bath quickly. He has told everything but she does not know what the I.O has written. Majid used to work in the Poura market of Maijdee and the statement of Salish regarding Majid is false. He has not heard anything like this. In the month of July in the area Aush paddy was available and at that time Aush paddy was in the field.

21.        P.W-12 Doctor Md.  Kamal Uddin, stated in his evidence that he was posted as Resident Medical Officer in Noakhali General Hospital. On 23.07.2008 he was a Medical Officer in the same Hospital.  He was the president of Medical Board which conducted the post mortem examination over the dead body of Abdul Majid on that date. On that date the dead body was brought by constable 580Md. Shahidul Haque to the morgue. The members of Medical board were Dr. A.S.M Monir Ahmed (Resident Medical Officer) and Dr. Cornzit Majumdr (Medical Officer) the age of deceased Abdul Majid was about 11(eleven) years. No sign of injury in the dead body was found. The dead body was partly decomposed. There were accumulation of blood in the flesh of throat and shoulder. The throat was broken. Two lunches were congested. Before death, Abdul Majid was throated, resulting his death. They gave the opinion unanimously. He proved the post mortem report and his signature therein, exhibit 5 and 5/1. In cross examination he stated that he received the dead body by said G.D No. 701 dated 22.07.2008 and conducted the post mortem examination. The report shows that the dead body was decomposed. Partly decomposed was not written. They themselves saw the position of the throat and shoulder and basing on their own knowledge they have conducted the examination and explained.  It is not a fact that the report he has given is not true.

22.        P.W-13 Mosharof Hossain, stated  in his evidence that he was posted as Sub-Inspector of Nijhum island, Investigation Centre, under Hatia Police Station. On 22.07.2008 he was posted in kabir Hat Police Station and went to visit Chabir Paik village. Getting information that, a dead body was lying in that village. On that day he was posted as S.I there. He prepared the inquest report of the dead body. The dead was lying in the paddy field of Syed Member in water. The dead body was of Majid. He brought the dead body from the paddy filed and kept on the road. Abut Taher, the father of Majid, identified the dead body in front of him. There was force with him.  He prepared the inquest report in the presence of witnesses. This is the inquest report and his signature therein, marked as exhibit-1/4. The dead body was decomposed and insect were therein. No skin in the chest was there and it was soiling and the body was also soiling. No external injury was found. There was a red shirt and Lungi. The dead body was sent to morgue by Constable 580 Shahidul Hoque. Sadar General Hospital is at Noakhali. Abu Taher lodged the ejahar. On the basis of that ejahar, Officer in charge at Kabir Hat Police Station lodged the case. The hand writing and signature of Officer in charge A.K.M Kowser Chowdhury is known to him. He has served under him. The writing and signature in the ejahar and ejahar form are of Officer in charge A.K.M Kowser Chowdhury, exhibit 2,2/2, 2/3, 2Ka, 2Ka/1, 2Ka/2. Getting responsibility of investigation, he visited the place of occurrence. He prepared the sketch map and index of the place of occurrence. Seized the alamat. He proved the sketch map and index. His signature therein exhibit-6 and 6/1, 6Ka,6Ka/1. He seized old red color’s cotton chek Lungi and red check sleeve half shirt’s partly. It is alamot materials exhibits I,II. This the seizure and his signature therein exhibit-7,7/1,7Ka,7Ka/1. Accused Nur Nobi was arrested. He examined the witnesses and recorded their statement. Moreover, he arrested accused Abdul Sattar. During investigation and on statement the charge against the accused persons were proved. During investigation he took Nur Nobi in remand and he was examined.  Therein he himself admitted his guilt before him but refused to give statement before the Magistrate. Bibi Kulsum gave statement before Magistrate. She was produced before the Magistrate. He collected the post mortem report examination. In investigation and on the basis of evidence available and considering the circumstances the charge against the accused-persons were proved against Nur Nobi and 5(five) other persons. Then he submitted the memorandum of evidence for approval from the authority to submit charge sheet. Accused Nur Nobi is a child and separate charge sheet was submitted against him. In cross-examination he stated that the Lungi was at the side of the dead body. In the inquest report it has been stated and in the seizure list also explanation has been given. Abdur Rahaman, son of Nadu Miah stated before him that the dead body was recovered from the place where there was paddy. The name of deceased Abdul Majid aged about 13(thirteen) years. It was rainy season. Majid’s age was about 1 (eleven) years.  He does not know whether Majid knew swimming.  It is not fact that no witnesses told him anything regarding  calling Majid by accused Nur Nobi. Kulsum has told to him that at that time they went to   the grandfathers’ house.  It is not a fact that the investigation was not conducted properly or accused Nur Nobi has not admitted his guilt before him or regarding the admission of accused Nur Nobi he has not mentioned anywhere in the investigation process or all the witnesses were bias or all of them were partisan or false charge sheet has been submitted  Kulsum did not state implicating accused Nur Nobi or he did nor visited the place of occurrence or being influenced by the informant the charge sheet has been submitted sitting in the police Station or the statement as has been stated by Kulsum is a tutored statement or investigation reveals that Majid died of drowning  or because of the dispute over land. The investigation revealed that the case has been filed against Nur Nobi.

23.        These are the evidence available in this case adduced by the prosecution.

24.        Mr. Md. Moniruzzaman (Rubel), the learned Deputy Attorney General submitted that in this case there are evidence that accused Nur Nobi called Majid on 19.08.2007 and took him in the name of seeing the paddy and after that the victim Majid was untraced and within about 03(three) days on 22.08.2007 the dead body of Majid was found in the paddy field of Syed Member. He further submitted that it has been proved  beyond all reasonable doubt that accused Nur Nobi was last seen with victim Majid and a duty is cast upon accused Nur Nobi to say what happened after Majid was last seen with him and this accused or the defence side has failed to give any explanation as to subsequent facts and disappearance of the victim Abdul Majid and then recovery of the deed body of Abdul Majid establish safely the fact in favour of the prosecution that this accused Nur Nobi is the offender of kidnaping which led to death of victim Abdul Majid. As such under the law this accused-appellant is liable to be convicted under Section 302 of the Penal Code. In this case if dead body was not recovered then the accused might have been liable under Section 364 of the Penal Code. But when the dead body was recovered and accused side has failed to give any explanation as to the subsequent facts which resulted the death of victim Majid, this accused appellant is liable to be convicted under Section 302 of the Penal Code.  In this respect he placed before us, the case of Md. Salim-Vs- the State reported in 4 BLC-261 wherein it has been found-

“Last seenif the evidence of P.W-1 and 2 are read along with evidence of P.W-5 it is found that the victim Seru Mia was last found in 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 the guilty of the offence under Section 364 of the Penal Code.”

25.        Then he referred the case of Jafor Ali Versus-State-1998 SCMLR 2669 available at-526 of the Penal Code wherein it has been held that-

“Sections 364A and 302last seen evidenceappreciation of evidenceprincipleslast seen evidence is not sufficient for  establishing the guilt where it requires making conjectures to connect the accused  with the crime and where there are reasonable possibilities that someone else might have  committed the offence, but if claim of the facts in such that no reasonable inference can be drawn except that the accused has committed the offence after the victim has been last seen in his company, then in the absence of a reasonable explanation from the accused, such evidence can be relied upon for convicting him for the offence.”

26.        Then he placed before us the case of Anisur Rahaman and others-Versus- the State reported in 1986 BLD(AD)-79 wherein it was held that-

“Circumstantial evidenceabsence of reasonable explanation there is no reason to disbelieve the evidence of son and wife of the deceased who are most natural and materials witness as to the calling away of the deceased after which he was not found till his dead body was recovered that in the absence of the any other reasonable explanation if he said departure of the deceased from the company of the appellant no conclusion other then the guilt of the appellant can be drawn.”

27.        Upon placing these decisions, the learned Deputy Attorney General submitted that in this case, it has been proved beyond all reasonable doubt that the victim was called by the appellant in order to go to the paddy field and after that he became traceless and lastly the dead body was recovered and the last Seen Theory is fully applicable to reach to the conclusion that the appellant is liable for the murder and the learned trial court has rightly found that. There is no reason to discard this, and as such this appeal should also be dismissed.

28.        While on the other hand Mr. Shihab Uddin Mahmood, the learned Advocate for the appellant submitted that this is a case where there is specific departure in the evidence from the First Information Report. He further submitted that if any departure from the First Information Report appears in a case then the prosecution case becomes doubtful and credibility of the witnesses also become shaky. In support of his contention regarding departure from First Information Report, he placed before us, the case of Nowsher Mollah and others-Versus- The state, reported in 11 BLD- 295, wherein it has been held that-

“The FIR as the earliest recorded version of the prosecution case may be looked into for the purpose of comparing the same with the statements made subsequently during the trial by the prosecution witnesses. Any deviation or departure from the FIR story makes the prosecution case doubtful and casts serious doubt as to the credibility of the prosecution witnesses. Partial departure creates suspicion as to the truth of the prosecution case and total departure from the F.I.R story sometimes warrant exclusion of the prosecution evidence from consideration.”

29.        Then he placed the case of Gopal Rajgor and others-Vs- the State, reported in 42 DLR-446 wherein it was held that-

“F.I.REffect of departure from FIR storywhere the prosecution has a definite case, it must prove the whole of it; partial departure from the prosecution case affects credibility of the witnesses and complete departure makes their testimony to be entirely discarded.”

30.        Then he placed before us the case of Aminul Islam  and others-Versus- the  State, reported in 12 M.L.R-21, wherein it was held that-

“First Information Report (F.I.R) is an important piece of evidence as to the prosecution story first in point of  time for corroboration of other witness. When new story is introduced during trial which is not mentioned in the F.I.R this is subsequent embellishment of the prosecution case rendering the same doubtful.”

31.        Then he placed before us the case of Abdur Rashid-Versus- The State reported in 1MLR (HC)- 10 wherein it was held that-

“Vital contradiction between F.I.R and statements of witness implies false implication-

“The vital contradiction between the two versions of the prosecution case, one in the F.I.R and the other in the witness box,  leads us only to one conclusion that the appellants were implicated in this case falsely out of enmity.”

32.        In this point Mr. Shihab lastly submitted the case of Shere Ali and others –Versus- Emperior, reported in AIR(29)-1942 (peshawar)-51 wherein it was held that-

“Criminal trial- Story not mentioned by person in First Information Report given in court ought to be disbelieved. Where there is no mention of a certain incident in the first information report given by a person but   such incident is given by him in evidence in court, his story in Court should be disbelieved.”

33.        He then submitted the point of non mentioning of the age of injury in the post mortem report and submitted that in this case it is a vital point as to whether the time as mentioned by the prosecution was proper time and the prosecution has been able to prove the time of occurrence in this case. He submitted that in this case the time of occurrence has not been proved beyond reasonable doubt and the accused is entitled to get benefit of doubt. In support of his submission, he placed before us the case of Abdur Rashid-Versus-The State, reported in 27DLR(AD)-1, wherein it was held that-

“The doctor while holding the post mortem examination did not record the age of the injuries. In a case of murder the age of injuries is an important fact to determine the approximate time of occurrence.”

34.        Then he submitted that this case is based only upon a child witness named Kulsum P.W-10. In this case she is a child witness and the value given to the child witness is to be given very cautiously. In support of the submission he placed before us the case of Gedu Miah and others-Versus- The state, reported in 44 DLR-246- wherein it was held that-

“The competence of a child as a witness is beyond question. The only thing that requires to be done is to scrutinize his evidence with care and caution to see whether it suffers from any inconsistency. To base conviction upon his evidence it is prudent to seek corroboration. ” 

35.        Then he placed before us that the evidence recorded in this case clearly established the fact that there was bitter enmity of the parties and cases and counter cases were pending between the parties for a long time. He further submitted that in case bitter enmity is admitted between the parties then some sort of corroboration of the evidence is required. The prosecution witness should be considered carefully and some sort of corroboration must be there. In support of his submission he placed before us, the case of Sirajul Islam and others-Versus-The state, reported in 48 DLR-165 wherein it is held that-

“Where bitter enmity between the parties is admitted, some sort of corroboration of the evidence of disinterested witnesses is required as a rule of prudence.”

36.        On the same point he placed before us another decision in the case of Altaf Hossain and others-Versus- the State, reported in 54 DLR-464 wherein it was held that-

“In the context of the existing enmity between the parties, it is wholly unsafe to rely on the uncorroborated testimony of informant.”

37.        He then placed before us that this is a case which is based on suspicion because of the fact that it is the case where nobody saw the occurrence. In this case only theory of last seen has been applied but after the last seen also there are evidence that the accused gave explanation to effect that the accused told that the victim has gone to his grandfather’s houses as such a suspicion is there regarding involvement of the appellant in the murder and a suspicion however strong that might be cannot be the basis of conviction. In support of this he placed before us the case of Niranjan Malaker and another-Versus- The State, reported in 62 DLR-387 wherein it was held that –

“Suspicion-Cannot be basis for conviction- probability however strong and suspicion however grave, can never take place of proof as because in a criminal trial presumption of innocence is a principle of cardinal importance and so guilt of the accused must be proved  beyond reasonable doubt by legal, reliable and un-impeachable evidence. Suspicion and probability, however strong and grave, can never take place of proof.”

38.        Last of all he submitted that a Judge while acts is to bear in mind that he is to be guided by the value of law and not by activism and in support of this contention, he placed before us a case of Nazmul Islam alias Nazu-Versus- the State, reported in 63 DLR-460, wherein it was held that-

“Principle of criminal   jurisprudence that an accused should be dealt with in accordance with law and before awarding any punishment a Judge should have considered the legal evidence and proposition of law and he will not act as a social activist, rather he should be guided by law giving up emotion.”

39.        In summing up the case, he submitted that this is a case which have been tried by juvenile Court and this is a case where this accused is the only accused-person. There is no other accused in this case. He further submitted that the charge sheet has been filed under Sections 364/302/34 of the Penal Code and then he submitted that by reading this penal Sections it appears that this boy was charged for abetment of commission of offence but the accused has been convicted under section 302 only and section 34 is not there. That means he is the prime convict in this case. Now charging a person for abatement, it is not legal to convict that person under the main offence and admittedly this is a case of Juvenile Trial under Children Act. The new Children Act has come into existence where the sentence is maximum 10 years detention but this accused person has been given sentence of life imprisonment which is not supported by the Children Act and as such even if the accused-person is found guilty  of the offence then sentence has been passed beyond jurisdiction, and it establish that the trial court did not apply his judicial mind in passing sentence upon the appellant.

40.        We have heard the learned advocate appearing for the appellant and the learned Deputy Attorney General and perused the materials on records. In this case the date of occurrence has been shown in  the FIR as 19.07.2008, on Saturday  at night and the FIR was lodged on 22.07.2008 at 23.30 hours and in the FIR it has been stated that on 19.07.2008, Saturday in the morning the informant went out of the house and after works returned home and heard that his son Majid aged about 13 years has not  returned home  and his daughter Kulsum age 10(ten) years informed him and told that on that date at about 10.00 a.m Nur Nobi aged 15 Years of the same homestead has taken his son to see the paddy field and on that date at 12.30 p.m
Nur Nobi returned home and Kulsum asked him as to why Abdul Majid  has not come and where is Abdul Majid and Nur Nobi replied that he has gone to grandfather house. Later on she searched but did not get in the house of grandfather and got information that he has not gone to that house.  After that on 22.07.2008 at about 11.00 a.m from mosque Abdur Rahaman of Nalua village by mike informed that in the paddy field of Syed member of Chabir Paik village, the dead body of one boy is floating. On getting that information he and village people went there and by seeing the red chek shirt half sleeve shirt in the dead body.  He identified that the dead body was of his son Abdul  Majid and there was no Lungi in his body. The dead body brought from the water to a dry place at the side of the road and it was found that half of the tongue was outside the mouth. The tongue is pressurized by the teeth of both the sides. 

41.        It was also stated in the FIR that they have got dispute over land with father and uncle of Nur Nobi and Civil case is pending in the court beyond that an area of .20(twenty) decimals of homestead lands is in their possession and the defendant side that is the father and uncle of Nur Nobi tried to take possession of homestead land on many occasion but failed and upon that grudge, through accused Nur Nobi, Son of Abul Kalam called and took Abdul Majid from the house to the paddy  land and Accused Abul Kalam, Abdul Malek, Mahbubul Haque, Abdul Latif, Abdul Khaleque etc. and others killed his  son Abdul Majid and he doubts it. He informed the matter to the local Union Parishad Chairman and who informed the Police Station. The Police came from the Police Station and prepared inquest report and then sent the dead body to morgue. As such legal action against them should be taken. The informant was also examined as P.W-2 who in his evidence stated that on 29.07.2008, Saturday, 10.00 a.m accused Nur Nobi called his son Abdul Majid in the paddy field, he did not see it himself. He was then engaged in a marriage ceremony near his house and at that time his daughter Kulsum was in the house. He returned home and did not found Abdul Majid. Then daughter Kulsum told that Majid has been called by Nur Nobi and when Nur Nobi was asked he said that Majid has gone to his grandfather house. Two things we get here, one is that in the First Information Report, the informant said that he was busy, he went out of the house for his work after completion of the work he came back to his house. After that nothing has been stated in the FIR regarding the fact of any marriage ceremony and in the evidence he has not  stated regarding going out for work but regarding in the marriage ceremony which is absent in the FIR. It further appears from both the FIR and the statement P.W-2 that on query of Kulsum accused Nur Nobi replied that Majid has gone to his grandfather house. This information P.W-2 received from her daughter Kulsum and Kulsum in her evidence as P.W-10 stated that Nur Nobi returned at about 12.00 noon, he was asked regarding Majid and Nur Nobi told that Majid has gone to his grandfather house. On that date there was the marriage ceremony of Jarina and at that time in the house only Kulsum and his brother Abdul Majid were there. It is in evidence that this  P.W-2 has got children  and wife and out of them, five went to the marriage ceremony except Son Abdul Majid aged at 13 years and daughter Kulsum aged at 10 years. Then Kulsum told her father that Nur Nobi told that after that her brother Hamid came from the  grandfather house and on query he said that Majid has not gone to grandfather house. This Hamid is the brother of Kulsum who negated the defence plea that victim went to the house of grandfather has not been examined in this case and no reason has been given as to why he was not examined. Although he is a vital witness in this case regarding the negation of the defence plea that victim has gone to the house of grandfather, when there is an explanation given by the accused that victim has gone to his grandfather house we cannot say that accused has not given any reply to going of the victim and last seen theory between these two cannot be established when an explanation was   given by one of the persons regarding this. In the said matter, we find one explanation by the accused that the victim has gone to the grandfather house. That explanation has tried to be negated by the statement stating that Abdul Hamid came and said that the victim has not gone to grandfather house and this statement is a hear say evidence received from Abdul Hamid by Kulsum. Until and unless Abdul Hamid comes to the court and says this, this statement of Kulsum remains hear say evidence and can not be accepted in the eye of law. Had Abdul Hamid examined in this case and this story was stated by him that the deceased went to the house of grandfather. Then negation of the defence case could have been established but in this case that has not been done, that means in this case there is last seen theory but with an explanation and we cannot held that no explanation was given in this case by the accused person. The learned Deputy Attorney General has placed before us, the case of Jafor Ali-Versus-The state reported in 1988  SCMR-2669- wherein it is clearly stated that- last seen evidence is not sufficient for establishing the guilt where it required making  a conjecture to connect the accused with the crime and where there are reasonable possibility that someone else might have committed the offence, no reasonable ground can be drawn that the accused committed the offence after the victim has been last seen there. In absence of reasonable explanation from the accused side it was held that-the last seen theory to implicate him is applicable. In this case there is an explanation given by the accused and that explanation could not be negated by the prosecution side and as such this decision does not apply suitable in favour of the prosecution in the facts and circumstances of the case. The case of Md. Salim-Versus-The state, reported in 4BLC-261, it is an established principle that the evidence of witnesses it is found that victim was last seen in the company of the accused-person including the appellant then he is liable to be convicted but in this case this point of explanation given by the accused was not there and as such in this facts and circumstances of the case this decision does not suitably apply in the instance case. In the case 1986BLD(AD)-79 we get that in the absence of any other reasonable explanation as to the said departure of the deceased from the company of the appellant no conclusion other than guilt of the  appellant can be drawn.  It is seen that in this case there was no other reasonable explanation except that the persons was present with the deceased and in the instant case there is a reasonable explanation as to the said departure of the victim from the group of the company because if the statement of the accused is believed that the victim has gone to the house of his   grandfather, then the last seen theory with the victim and the accused does not remain and something more fact come about the existance of the victim in other places but those things have not come before this court after reasonable  explanation given by the accused.

42.        As such this case does not support the prosecution at all rather it supports the defence case. When reasonable explanation has been given the accused is entitled to get benefit of doubt. At the instant case we have already discussed that there is some sort of departure from the FIR in the evidence and the effect of departure also we have considered the learned advocate for the defence has placed some decisions which we have mentioned earlier. In all the decisions we get if there is departure from the FIR then the accused may get benefit in the case and the value of departure will consider how much benefit the accused can claim from the case. In the instant case that there was no statement that there was marriage ceremony where the inmates of the house of the victim attended and P.W-2 that is the  father of the victim went to attend the marriage ceremony with his family. The marriage ceremony is not mentioned in the FIR rather in FIR it is stated that he went for his work and in the evening he has returned after completion of the work. This difference in the FIR and the statement of witnesses according to us is not so fatal because this witness No.2 was not present for the whole day in his house. This departure from the FIR so far this part is concerned is not so vital and as such it does not affect the prosecution in the instant case. But regarding attending in a marriage ceremony we get from P.W-12 that he attended the marriage of Jorina, with his wife, son Shahid daughter Shakhina, son Abdul Hamid, son Abdul Hannan on Friday and returned on Saturday. After that Abdul Majid and others returned home. He told that he returned at about 10.00 in the morning. That means P.W-2 admitted that victim Abdul Majid also attended the marriage ceremony but the other witnesses we get that Abdul Majid did not attend the marriage ceremony. He was present in the house along with sister Kulsum. At one stage of  the cross examination this P.W-2 stated that he returned from marriage on Saturday, after that Abdul Majid and others return home, immediately after he stated that  Abdul Majid attended the marriage ceremony and on Friday he returned home. We find this type of discrepancies in the evidence of P.W.-2 and as such we cannot put reliance upon the evidence of this P.W-2 the father of the victim.  It is also in evidence that out of 7(seven) children except Kulsum all others attended the marriage ceremony. Kulsum is aged about 08(eight) years at that time. It is very difficult to believe that the parents along with 6 children attended the marriage ceremony except this Kulsum aged 08 years, that also put some doubt in the evidence adduced by P.w-2 and the case of prosecution that Kulsum did not attend the marriage ceremony. Then upon perusal her statement that on the date of examination she is aged 10(ten) years and accused Nur Nobi took Abdul Majid towards the paddy field and on her request Abdul Majid cut some straw to give food to cows and when at 12.00 noon, Nur Nobi returned and she asked regarding Majid and was told that Majid has gone to his grandfather house and on that date her father and mother went to the marriage ceremony of Jarina her cousin sister  and she along with Majid was in house. We got the evidence of P.W-2 that Majid also attended the marriage ceremony. He is a child witness in all respect and normally child witnesses do not give any false statement but it should also to be remembered in mind that they can lie if trained, specially when enmity between the parties are admitted. Regarding child witnesses a decision has been placed which is reported in 44DLR-246 wherein it is clearly stated that the confidence of the child witnesses is beyond question but it requires to be scrutinized  with caution to see whether this suffer from inconsistency. To give conviction upon this evidence it requires corroboration. In the instant case, we find that this P.W-10 a child witness has stated the evidence but there are some discrepancies in the evidence of P.W-2 her father and herself and regarding the statement of this witness no corroboration is there and as such we feel that although the evidence of this witness cannot be discarded as a whole but it cast a doubt in our mind as to the absolute truthfulness of this evidence. P.W-11 Nur Jahan is a lady who claims to be eye witness of going the victim and the accused appellant jointly. This witness is the wife of Nur Nobi who happens to be full brother of the informant. Moreover, about hundred yard distance whether it is possible for her, to see and indentify these two boys aged about 12/13 years to go jointly towards paddy field is a question which arose in our mind. It is further admitted that this Nur Nobi the husband of the witness has got disputes with the parents of the accused-appellant and he also accompanied the informant to the police Station to lodge FIR but this Nur Nobi has also not been examined in this case. Had the fact of identification by Nur Jahan was true then surely on 22.07.2008 when the ejahar was lodged this witness  and her husband Nur Nobi along with informant could have brought this matter of identification by Nurjahan in the First Information Report. But that is not there.  Another thing struck our mind that from 19.07.2008 this boy was missing, but what prompted the father and other persons not to lodge any G.D entry nor lodge any case in the police Station and according to the prosecution the fact of calling the victim by the accused Nur Nobi was there within the knowledge of Kulsum, her father, Nur Jahan and what prompted them not to file the case against him in this respect.  Upon perusal of the whole record we do not find any material before recovery of the dead body of the victim that anything has been done by the prosecution side in this respect.  The dead body was recovered on 22.07.2008 and after that the information was given to the local chairman, and then to the police station, resulting coming of the police and other things happened. There is no reason and explanation given by the prosecution side as to why they did not take any step in between these three days after victim Majid was abducted or taken away. With respect the time and manner of occurrence the learned advocate for the appellant has seriously raised question. He has shown us the postmortem report which does not show any age of injury in the post mortem report although there is no column to write age of injury but in a certificate of report it is a duty of the doctor to write the age of injury in that. In absence of that it is not possible to prove at what time the injury took place. In the instant case we also find that no age of injury has been given and as such the prosecution lack in material facts to show that when the occurrence of actual death or injury was caused. In support of this point Mr. Mahmood has placed before us a case of Abdur Rahid -versus- The State reported in 27 DLR (AD)-1. Wherein it has been found that the doctor while holding the post mortem examination did not record the age of the injury, in a case of murder the age of injury is an important fact to determine the approximate time of occurrence and in the instant case the approximate time of occurrence could not be established for not noting the age of the injury by the doctor and that falls upon the prosecution that the time of occurrence has not been established. In this case upon perusal of the post mortem report we find that the position of the dead body was decomposed and in the opinion that doctor   said death was due to asphyxia as a result of throttling which was anti mortem and homicidal in nature. No sign of injury was available in the whole body but it is in evidence that the dead body was decomposed. The dead body was recovered from under water in a paddy field. Mr. Shihab Uddin Mahmood has placed before us from the medical jurisprudence of Modi that if a body kept in water for four or five days, then very little change if water is cold. Rigor mortis may persist. If it is from five to seven days, then the skin of the hands and feet becomes sodden and bleached. The face appears softened and has a faded white colour. Regarding floatation of a body he submitted that the gases of decomposition developed within a sub merged body cause it to rise to the surface, unless it is entangled in weeds ropes or any other impediment. In India a submerged body comes to the surface within 24 hours in summer and within two or three days or more (rarely more than a weak) in winter. He submitted that because the time was of July, within two or three days this body must be floated in the water but the instant case he said that dead body was recovered from under water in a paddy field. According to him this time given by the prosecution of alleged kidnapping and then recovery etc. does not tally with the medical jurisprudence and a doubt is created as to the manner and time of occurrence. Regarding the identification of the body it was also stated that the father identified the body seeing the red shirt only. The body was at such a condition that the body could not be identified. On perusal of this it is clean that medical jurisprudence does not show to support that this body was under water within less than three days time. Considering all these things we are of the view that in these aspects also the case of the prosecution has failed, to be proved beyond reasonable doubt. Considering all these things we are of the view that in the instant case upon consideration of the facts and circumstances of the case and on materials on record the prosecution could not prove this case against this accused appellant beyond all reasonable doubt and as such the accused is entitled to get acquittal.

43.        Thus the appeal is allowed. The judgment and order of conviction and sentence passed by the Sessions Judge, Noakhali in Sessions Trial Case No. 150 of 2009 arising out of Kabirhat Police Station Case  No. 12 dated 22.07.2008, under Section 302/34 of the Penal Code, 2008 , corresponding to G.R. No. 877 of 2008 convicting the appellant under Section 302 of the Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay of Tk. 10,000/- (ten thousand) in default to suffer rigorous imprisonment for a further period of 01(one) year  is here by set aside. The accused appellant is acquitted from the charges leveled against him.

         Let the accused be released from custody forthwith if not wanted in connection with any other case. Send the lower court records immediately.

Ed.



Criminal Appeal No. 1377 of 2014.