Md. Rafiqul Mondal Vs. The State [4 LNJ (2015) 361]

Case No: Jail Appeal No. 1199 of 2006

Judge: Md. Abu Zafor Siddique,

Court: High Court Division,,

Advocate: Mr. Yusuf Mahmud Morshed,Mr. Kazi Ebadat Hossain,Mr. Md. Khabir Uddin Bhuiyan,Mr. Md. Fazlur Rahman Khan,,

Citation: 4 LNJ (2015) 361

Case Year: 2015

Appellant: Md. Rafiqul Mondal

Respondent: The State

Subject: Principles of Natural Justice,

Delivery Date: 2013-05-30


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Zubayer Rahman Chowdhury, J.
And
Md. Abu Zafor Siddique, J.

Judgment on
30.05.2013
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}
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Md. Rafiqul Mondal
...Accused-appellant
-Versus-
The State
. . .Respondent
 
 
Code of Criminal Procedure (V of 1898)
Section 342
Section 342 of the Code of Criminal Procedure is based on the principle “audi alteram partem” that is no one should be condemned unheard. It is the utmost duty of the Court of law to give an opportunity to an accused to defend himself. The real object of section 342 of the Code of Criminal Procedure is inviting the attention of the accused-person to the points raised in the evidence which are against him for which he may be convicted. . . . (30)

Evidence act (I of 1872)
Section 8
We have not found, upon scrutiny of the evidence and the materials on record, anything to show any motive or intention on the part of the prosecution witnesses to falsely implicate the appellant in this case, rather, we find strong circumstantial evidence. All the P.Ws. are natural witnesses and their evidences are consistent and inspires confidence in our mind to be accepted as truthful. Their evidence had also been corroborated by the informant....(37)

Yogeshwar Gope Vs. State, 58 DLR (AD) 73; Tungo Veskata Krishnaiah Vs. State of Andra Prodesh, (1985)29 ML.Jr(Cr) 130, at page 140-141 and Sheik Muksed Ali Vs. The State, 10 M.L.R. (AD) 27 ref.

Mr. Md. Khabir Uddin Bhuiyan, Advocate
. . . For the accused-appellant.

Mr. Md. Fazlur Rahman Khan, D.A.G with
Mr. Md. Yusuf Mahmud Morshed and
Mr. Kazi Ebadat Hossain, A.A.G.
. . . For the State.
 
Jail Appeal No. 1199 of 2006
JUDGMENT
Md. Abu Zafor Siddique, J:
 
This Jail Appeal is directed against the judgment and order of conviction and sentence dated 27.11.2006 passed by the learned Sessions Judge, Nowgoan in Session Case No.115 of 2006 arising out of Niamotpur Police Station Case No.4 dated 10/04/2006 corresponding to G.R. No.36 of 2006 under section 302 of the Penal Code and sentencing the appellant to suffer rigorous imprisonment for life and also to pay a fine of Tk.5,000/= in default to suffer rigorous imprisonment for 1 year more.
 
The prosecution case, in short, is that on 10.04.2006 one Zamal, son of deceased Kabari, as informant, lodged an ejahar with Niamathpur Police Station, Nowgong alleging inter alia, that on 18.06.2003 at about 7.00 hours, he came to know that his mother Kabari @ Zahirun died at her 2nd husband’s (Rafiqul Islam Mondal) house at Bahadurpur. Thereafter, he rushed to the place of occurrence along with his maternal uncle and other relatives and they saw the dead body. He heard from the local people that accused Md. Rafiqul Islam (husband of the deceased) had killed his mother and was trying to quickly dispose of the dead body, but he opposed. Thereafter, the elder brother of the accused started a U.D. Case with Niamatpur Police Station. The police prepared the inquest report and sent the dead body to the Sadar Hospital, Nowgong for Post Mortem. 
 
The case was investigated by the police. After investigation, the investigating officer found prima-facie case against the accused-appellant and he submitted charge-sheet against him under section 302 of the Penal Code.
 
After investigation, the case record was transmitted to the learned Sessions Judge Nowgoan for trial and it was registered as Session Case No.115 of 2006. Charge was framed against the convict appellant under section 302 of the Penal Code and the same was read over and explained to him to which he pleaded not guilty and prayed to be tried in accordance with law.
 
During trial, the prosecution examined as many as 12 witnesses out of 24 cited witnesses in the charge-sheet, but the defence examined none.
 
The defence case, as it appears from the trend of cross-examination of prosecution witnesses, is that the appellant is completely innocent and he has been falsely implicated in the case.
 
Considering the facts and circumstances and deposition of the prosecution witnesses and hearing the parties, the trial Court convicted and sentenced the appellant in the manner as already stated above.
 
Being aggrieved by and dissatisfied with the aforesaid impugned judgment and order of conviction and sentenced, the convict appellant preferred the instant Jail Appeal.
 
Mr. Md. Khabir Uddin Bhuiyan, the learned Advocate appearing on behalf of the appellant submits that the learned Session Judge, Nowgoan has misread the evidence on record and misinterpreted the law in passing the judgment and order of conviction which is not tenable in the eye of law. He further submits that the convict appellant is innocent and he has been falsely implicated with the case out of enmity. He next submits that not a single independent witness has supported the prosecution case. Thus, the prosecution has failed to proved the allegations against the appellant beyond reasonable doubt. He therefore, prayed that the impugned judgment and order of conviction and sentence be set-aside.
 
Mr. Kazi Ebadat Hossain, the learned Assistant Attorney General appearing on behalf of the state, has supported the impugned judgment and order of conviction and sentence dated 27.11.2006. He submits that the alleged offence has been proved by the witnesses by adducing corroborative evidence.
 
Moreover, in the opinion of doctor “the cause of death of the deceased was due to asphyxia as a result of strangulation which is anti-mortem and homicidal in nature.” He next submits that the prosecution has been able to prove the case beyond all reasonable doubt, and as such, the appeal is liable to dismissed.
 
We have considered the argument advanced by the learned Advocates of the both sides and perused the memorandum of Jail Appeal, impugned judgment and order of conviction and sentence of the trial court, evidence on record and the relevant papers in the L.C.R.
 
Let us now discuss the relevant evidence and others material on record.
 
P.W.-1 Md. Jamal Uddin, being the informant of this case and son of the deceased, stated the same facts as stated in the FIR lodged by himself. He also proved the FIR as Exhibit-1, his signature Exhibit-1/1. In cross-examination he denied all the suggestions given by the defence.
 
P.W.-2, Ziaruddin Mollha is a neighbor and independent witness. He deposed that- “হৈ হুল্লা শুনে আসামীর বাড়ীতে যাই। দেখি আসামীর সএী মারা গেছে। দারোগা পরদিন ঘটনাসহলে আসে। মৃত. কবরীর মাথা দিয়ে রত্তু বের হচ্ছে।” He proved the inquest report as Exhibit-2 and signature Exhibit-2/1.
 
P.W.-3, Md. Ashraful is the neighbor and independent witness and he deposed that- “আসামীর সএী কবরীর মৃত্যুর পর দারোগা ঘটনাসহলে আসে। পুলিশ সুরততহাল করে।” He proved his signature on the inquest report as Exhibit-2/2.

P.W.-4, Md. Abdur Rahman is another local witness he deposed- “পুলিশ কর্তৃক আহুত হয়ে সুরততহাল রিপোর্টে সই করি।” He proved his signature on the inquest report as Exhibit-2/3.

P.W.-5, Md. Osman Ali is a neighbor and independent witness, he deposed  “আসামী মৃতা কবরীর ২য় স্বামী। কবরীর মৃত. সংবাদ পেয়ে আসামী বাড়ীতে যায়।” In his cross-examination he stated that- “ঘটনা স্বচক্ষে দেখি নাই। মৃতার লাশ পড়ে থাকতে দেখিছে।”

P.W.-6, Md. Jashim uddin another local witness. He tendered by the prosecution and also declined by defence.

P.W.-7, Md. Mokbul Hossen is the previous husband of the deceased. He deposed that- “মৃতা কবরীর সাথে আমার পূর্বে বিয়ে হয়েছিল। তার সাথে সংসার করি। আমার ঘরে তার তিনটি সমতান হয়। আমার ছেলে-মেয়েরা ঘটনাসহলে যায় এবং ফিরে এসে বলে মৃতাকে গলা টিপে মেরে ফেলেছে।”

P.W.-8, Md. Akkas Ali deposed that- “আসামী রফিকুল আমার ভগ্ণিপতি। মৃতা কবরীকে দিয়ে ২য় বিয়ে হয়। মৃতার মৃত্যুর সংবাদ প্রাপ্তে ঘটনাসহলে যায়। মৃতাকে দেখে বাড়ীতে আসে।”

P.W.-9, Most. Arvan Nesa, She deposed that- “মৃতা কবরী আমার ননদ। তার পূর্বেও বিয়ে হয়। আসামীর সাথে ২য় বিয়ে হয়। মৃতার মৃত্যু খবর পেয়ে ঘটনাসহলে যাই ও কবরীকে মৃত দেখি, লাশ চালান দেয়, মৃতার কান দিয়ে রত্তু বের হয়েছে ও তাকে মেরে ফেলা হয়েছে শুনি।”

P.W.-10, Arif uddin, constable of Niamotpur Police Station. He deposed that- “মৃতা কবরীর লাশ মর্গে আনয়ন করি।”
 
P.W.-11, Dr. Ahmed Hossen Khan, is a Medical Officer of Nowgoan General Hospital and a member of the Postmortem Examination Board. He stated that-

“Found blakish discolorations on both side of neck and swelling Reddish frothy discharge through mouth and nose. Tongue-Protruded, some post mortem blisters over the body. O/D(1) Shows congestion of the underlying structures. Comment-Opinion kept pending till report of chemical examination of the preserved viscera is received.”
 
পরবর্তিতে আমরা viscera রিপোর্ট পাই। উত্তু রিপোর্টে বিষের অসিতত্ব পাওয়া যায় নাই। Opinion The cause of death of the deceased was due to asphyxia as a result of strangulation which is ante-mortem and homicidal in nature. He exhibited the postmortem report as exhibit-3 and his signature exhibit-3/1.

In his cross-examination, he stated that- “মৃতার মুখে ও শ্বাসনালীতে কোনরতপ আঘাত পাওয়া যায় নাই। সত্য নহে হার্ট এ্যাটাক হলেও শ্বাসরতদ্ধ হয়ে মৃত্যুবরণ করতে পারে। সত্য নহে অনুমান ভিত্তিক রিপোর্ট দাখিল করেছি। সত্য নহে সঠিকভাবে P.M. করা হলে ইহা একটি স্বাভাবিক মৃত বলে গণ্য হতো।”

P.W.-12, Md. Abdul Based, Inspector and Officer-in-charge of the Niamotpur Police Station and Investigating Officer of this case. He deposed that- “তদমতকালে যথাসময়ে ঘটনাসহল পরিদর্শন করি, খসড়া মানচিত্র, সূচি সহ আলাদা কাগজে লিপিবদ্ধ করি, সাক্ষীদের জবানবন্দি ফৌজদারী কার্য বিধির ১৬১ ধারা মতে লিপিবদ্ধ করি। আসামীকে গ্রেপ্তার করি। U.D. মামলার আলামত হিসেবে গ্রহণ করি। তদমতঅমেত আসামীর বিরতদ্ধে সংশ্লিষ্ট অভিযোগপত্র দাখিল করি।” He Exhibited sketch map, index and his signature as exhibits 5, 6, 5/1 and 6/1 respectively.

These are all evidence adduced by the prosecution.
After conclusion of recording of deposition of the prosecution witnesses, the Trial Court examined the accused-appellant under section 342 of the Code of Criminal Procedure. It appears that while examining the appellant under section 342 of the Code of Criminal Procedure the Court properly disclosed the available evidence against the appellant who were present in the dock. In reply, the accused persons claimed to be not guilty of the offence and demanded to be tried in accordance with law.

Section 342 of the Code of Criminal Procedure is based on the principle “audi alteram partem” that is no one should be condemned unheard. It is the utmost duty of the Court of law to give an opportunity to an accused to defend himself. The real object of section 342 of the Code of Criminal Procedure is inviting the attention of the accused-person to the points raised in the evidence which are against him for which he may be convicted. So, it is clear from the record that the accused-person have been given a good chance to offer their explanation as to those.

We have scrutinized the depositions of the prosecution witnesses along with the materials on record with attending facts and circumstances of this case in our own way to ascertain whether the trial court committed any illegality in passing of the impugned judgment.

It appears that- P.W.-1, stated ঘটনাসহলে গিয়ে তার মায়ের শরীরের যখমের চিহু দেখে ও মায়ের কান দিয়ে রত্তু বের হতে দেখিয়াছে। আসামী রফিকুল কবর খুঁড়ে তড়িঘরি করিয়া তাহার মায়ের মরদেহ কবরসহ করিতে যাচ্ছিল। সে বাঁধা দেয় এবং থানায় খবর দেয়। P.W.-2 stated that- মৃত. কবরীর মাথা দিয়ে রত্তু বের হচ্ছে। P.W.-9 deposed that- “মৃতার কান দিয়ে রত্তু বের হয়েছে ও তাকে মেরে ফেলা হয়েছে শুনি। P.W.-11 is the medical officer of the concern medical board and he has proved the postmortem report given by them and he has also proved their opinion. “The cause of death of the deceased was due to asphyxia as a result of strangulation which is ante-mortem and homicidal in nature.” P.W.-12, investigating officer of this case. After his investigation having found a prima-facie case he submitted charge-sheet against the appellant under section 302 of the Penal Code.

The learned Advocate for the appellant has tried to raise a question that since the witnesses are the close relatives and neighbours of the deceased, they are the interested witness of this case.
 
On the question of interested witnesses, we have considered the case of Yogeshwar Gope -Vs.- State, reported in 58 DLR (AD) 73, wherein the Apex Court held that;

''Only because of relationship of witnesses evidence connot be thrown away unless the evidence is found to be untrue or tainted by motive.”
 
We have also taken notice of the views expressed in the case of Tungo Veskata Krishnaiah –Vs.- State of Andra Prodesh (1985)29 ML.Jr(Cr) 130, at page 140-141(AP) which run as follow:

“Where a witness is a natural witness to the occurrence and her evidence is consistent and it inspires confidence to accept her evidence to be truthful, her evidence alone is sufficient to base conviction.”
 
We are respectfully relying upon the views noted above. We have not found, upon scrutiny of the evidence and the materials on record, anything to show any motive or intention on the part of the prosecution witnesses to falsely implicate the appellant in this case, rather, we find strong circumstantial evidence. All the P.Ws. are natural witnesses and their evidences are consistent and inspires confidence in our mind to be accepted as truthful. Their evidence had also been corroborated by the informant. As such, we do not find any substance in the submission of the learned Advocate for the appellant. On the other hand, we find that the prosecution witnesses have been able to prove the case beyond reasonable doubt. The medical report also has supported the prosecution story.

We have also taken notice of the views expressed in the case of Sheik Muksed Ali -Vs.- The State reported in 10 M.L.R. (AD) 27, which run as follow:

“When it is established that the husband and his deceased wife were residing in the same house at the time of the occurrence the husband owes an obligation to explain the circumstance under which his wife died. When the explanation so offered is proved false and the victim is found to have died due to injuries which were ante mortem and homicidal in nature, the conviction and sentence of the convict husband is held by the apex court to be perfectly justified.”

Considering the fact and circumstances of the case, we are of the  view that the trial Court has rightly found the accused-appellant guilty of murder as charged as per section 302 of the Penal Code and sentenced him to imprisonment for life and a fine of Tk.5,000/-.

Therefore, we do not find any illegality in the impugned judgment and order of conviction and sentence dated 27.11.2006 and consequently, it does not call for any interference by this Court.

In the result, the appeal is dismissed.

The order of conviction and sentence dated 27.11.2006 passed by the learned Sessions Judge, Nowgaon in Session Case No.115 of 2006, arising out of Niamotpur P.S. Case No.4 dated 10.4.2006, corresponding to G.R. No.36 of 2006 is hereby affirmed.

Send down the lower Court records to the concerned Court along with a copy of the judgment at-once.

Ed.