Case No: CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 353 OF 2011
Judge: Muhammad Imman Ali,
Court: Appellate Division ,,
Advocate: Biswajit Deb Nath,,
Appellant: Shafiqul Islam @ Shafi
Respondent: The State
Subject: Criminal breach of trust,Gift,Customs,
Delivery Date: 2014-06-16
IN THE SUPREME COURT OF BANGLADESH
Madam Justice Nazmun Ara Sultana
Mr. Justice Syed Mahmud Hossain
Mr. Justice Muhammad Imman Ali
(From the judgement and order dated 28th of Mach, 2011 passed by the High Court Division in Death Reference No. 53 of 2006 with Criminal Appeal No. 2533 of 2006 and Jail Appeal No. 553 of 2006)
J U D G E M E N T
MUHAMMAD IMMAN ALI, J:-
Reference was made under section 374 of the Code of Criminal Procedure which was registered as Death Reference No. 53 of 2006. The petitioner also filed Criminal Appeal No. 2533 of 2006 and Jail Appeal No. 553 of 2006. By the impugned judgement and order, a Division Bench of the High Court Division rejected the death reference and dismissed the criminal appeal and commuted the sentence of death to one of imprisonment for life.
Being aggrieved by and dissatisfied with the impugned judgement and order, the accused petitioner filed the instant criminal petition for leave to appeal before this Division.
Mr. Yousuf Hossain Humayun, learned Senior Advocate appearing on behalf of the petitioner submitted that there has been inordinate delay of more than 12 hours in lodging the F.I.R. and there is no satisfactory explanation for such delay which belies the whole prosecution case and creates a serious doubt and as such the petitioner is entitled to get benefit of doubt, that was not considered by the Hon’ble High Court Division. The learned Advocate further submitted that there was no motive for the accused petitioner to kill his wife. It is admitted in the F.I.R. that the accused petitioner was happy with his wife as her father stated in the FIR that "" ¢hh¡ql fl a¡q¡cl c¡ÇfaÉ S£he p¤M n¡¢¿¹a L¡¢Va¢Rmz'' Both the trial court and High Court Division failed to assess this very vital aspect of the case. As such the impugned judgement and order may be set aside by this Division for the ends of justice. He further submitted that both the Courts below erred in law in not considering that there is no eye witness in the case and the circumstantial evidence has got no strong basis for creating credibility of the allegation brought against the convict appellant for killing his wife, and in the absence of any eye witness and circumstantial evidence the impugned judgement and order of conviction and sentence is not tenable in law and is liable to be set aside. He also submitted that the prosecution hopelessly failed to prove the fact that the deceased, i.e. the wife of the accused appellant was in the exclusive custody of the convict petitioner, and hence the case does not fall in the category of the general principle of a wife killing case, and both the trial Court and High Court Division failed to assess this very vital aspect of the case and convicted the accused petitioner. The learned Advocate lastly submitted that the case has not been proved by any independent witness. All the witnesses are partisan and tutored by the prosecution as such the impugned judgement and order of conviction and sentence may be set aside for the ends of justice.
Mr. Biswajit Deb Nath, learned Deputy Attorney General appearing of behalf of the respondent made submission in support of the impugned judgement.
<span style="We have considered the submissions of the learned Advocate for the petitioner and the learned D.A.G. appearing for the State and perused the impugned judgement and other connected papers on record.
The sum and substance of the submissions made by the learned Advocate for the petitioner is that there was no eyewitness to the occurrence and there was no strong circumstantial evidence to prove the complicity of the accused petitioner in the murder of his wife. In this regard we have to say that not all crimes are committed in broad daylight and that many crimes are committed in the darkness of night, as in this case. It is also an established principle that conviction of an accused can be based on circumstantial evidence alone.
In the facts of the instant case there is clear evidence that the victim was in the house of her father along with her sister to celebrate Eid. Thereafter, the victim was taken by her husband from the house of her father and on the way the couple visited the victim’s sister’s house. According to the witnesses the victim was last seen with her husband when she was on her way to his house. On the following day the victim was found dead on the bank of the canal. Under the provisions of section 106 of the Evidence Act the husband has a special duty to explain what happened to his wife in the space of time when he was last seen with her and the time when her dead body was discovered since the victim was in his custody. It is the husband who is deemed to have special knowledge about the whereabouts of his wife and what happened to her in that interim period. The burden of proof is squarely on the husband to prove how his wife met her death.
In an attempt to discredit the evidence of P.W.9 Shahana Khatoon with regard to her last seeing the victim in the company of the accused, the defence cross-examined her to the effect that she did not tell the investigating officer that the victim visited her house on her way back from her father’s house. Such cross-examination would benefit the defence only if it could be shown from the cross-examination of the investigating officer that this witness did not say so at the earliest point in time when giving her evidence to the investigating officer. Hence, the evidence of P.W.9 that the victim and her husband were last seen together at her house stands.
The evidence of P.W. 2, mother of the victim, indicates that when she went to the house of the accused there was no one present and that there was blood on the bed and on the floor in the victim’s room. This witness also deposed to have seen the victim’s hair and broken bangle by the window. She denied the defence suggestion that she did not tell the investigating officer about the blood on the bed and on the floor and the broken bangle. Again, this cross-examination would benefit the defence only if it could be shown from the cross-examination of the investigating officer that the witness in fact did not tell the investigating officer what she is now deposing in court. From the evidence of the two investigating officers who were examined in the case, we do not find the contradiction taken from them.
Finally, the fact that the accused was not found in his house after the occurrence and did not surrender until about 11 months later is another circumstance which was held against the accused. There is a plethora of decisions of our Supreme Court that abscondence of the accused is a material circumstance indicating his guilt.
The High Court division has elaborately discussed the evidence and materials on record and affirmed the conviction under section 302 of the Penal Code, but commuted the sentence of death to one of imprisonment for life. We find no reason to interfere with the impugned judgement and accordingly the criminal petition for leave to appeal is dismissed.