Shamsuddin Ahmed Master Vs. The State, 2018(1) LNJ 354

Case No: Criminal Appeal No. 4012 of 2004 with Criminal Appeal No. 4157 of 2004 with Criminal Appeal No. 4231 of 2004 with Criminal Appeal No. 4679 of 2004

Judge: Syed md. Ziaul Karim, J.

Court: High Court Division,

Advocate: Mr. Helaluddin, Advocate & Mrs. Sakila Rowshan, D.A.G.,

Citation: 2018(1) LNJ 354

Case Year: 2014

Appellant: Shamsuddin Ahmed Master & others

Respondent: The State

Subject: Penal Code (XLV of 1860) & Evidence Act (I of 1872)

Delivery Date: 2018-07-04

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Syed Md. Ziaul Karim, J

And

Sheikh Md. Zakir Hossain, J.

Judgment on

14.09.2014 and 15.09.2014

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

}

Shamsuddin Ahmed Master,

...Convict-appellant

(In Criminal Appeal No. 4012 of 2004)

Versus

The State,

. . .Respondent

With

1.   Siddique Ahmed,

2.  Iqbal Bahar,

3.  Abbas

4.  Babul

...Convict-appellants

(In Criminal Appeal No. 4157 of 2004)

Versus

The State

. . .Respondent

With

1. Mosarrafuddin alias Bappu

2.   Surat Alam,

3.   Tomon alias Jabed Hossain,

. . . Convict appellants.

(In Criminal Appeal no. 4231 of 2004)

Versus

The State,

. . . Respondent.

With

Suman

. . . Convict-appellant

(In Criminal Appeal No. 4679 of 2004)

Versus

The State

Respondent

Penal Code (XLV of 1860)

Sections 299, 300 and 304 Part I

Evidence Act (I of 1872)

Section 45

Now it is to be seen if the injuries of the deceased Khorshed are of such a nature as to constitute ‘murder’. The two injuries in the occipital region are the cause of death as the expert evidence of PW. 6 and PW-20 shows, while the other injuries are simple in nature. It is difficult to hold that these injuries were caused with the intention to cause the death, nor such injuries appear to be sufficient to cause death in the ordinary course of nature. But these injuries, though caused intentionally, are of such a nature that these are "likely to cause death". We do not think that this criminal act of causing the death falls into any of the four categories of criminal acts which constitute ‘murder’ as described in S. 300 of the Penal Code. We rather find that this criminal act was done with the intention of causing such injuries as are likely to cause death, as described in section 299 of the Penal Code. As such, it constitutes culpable homicide not amounting to murder, punishable under section 304 Part I of the Penal Code.                                                         . . .(111)

Nazrul Islam and others Vs. The State 45 DLR 142; Moinullah and another Vs. The State 8 BLD 100; Abul Bahar alias Abul Bahar and others Vs. The State 5 BLD 84; Lal Mia alias Lalu Vs. The State 1988 BCR(AD) 147; Government of Bangladesh Vs. Montu alias Nazrul Haque and others  44 DLR (AD) 287; Abdul Khaleque and others Vs. State 48 DLR 446; Abul kashem Vs. State 7 BLC  384; Abdul Quddus Vs. The State 43 DLR (AD) 234; Yogeshwar Gope Vs. The State BCR 2006 267; State Vs. Sree Ranjit Kumar Pramanik 45 DLR 660; The State Vs. Giasuddin and others 18 BLD 254; State Vs. Abdus Sattar and others 43 DLR (AD) 44; Dipok Kumar Sarkar Vs. The State 8 BLD (AD) 109; 40 DLR 58; 42 DLR (AD)31; 10 MLR (AD) 175; PLD 2001 SC 333; PLD 2000 Kar 128; PLD 1999 Lah 56; AIR 2003 SC 3975; 57 DLR (AD) (2005) 75; 1968 P Cr. LJ 1251; 7 MLR (2002) 119; 51 DLR 103; 1968 Cr.LJ 962; Noor Md. Vs. State 1999 MLD 60; Md. Azeem Vs. State 1998 175; Deepak Vs. State 1989 Cr.L.J. 143 (MP); Radhakrishnan Vs. State (1989)1 Crimes 721(Mad)(DB); Bikkar Vs. State (1989) 2 Crimes 1(SC); Harish Vs. State (1989) 2 Crimes 72 (Del) (DB); Amrik Singh Vs. State of Punjab 1981 Cr.L.J. 634; AIR 1981 SC 1171; 1981 SCC (Cr.) 252; 1981 Cr.L.J.(SC) 158, Murari Lal Vs. State of U.P. 1980 Cr.L.J. 1408; AIR 1981 SC 363(1979) SCC 612; Ashok V State 1989 Cr.L.J. 2124; AIR 1989 SC 1890; (1989) 2 Crimes 423; Sate Vs. Montu alias Nazrul Islam and other 44 DLR AD-287 and Joyaray Vs. State of Tamil Nadu 1976 Crl. L.J. 1186(SC) ref.

Mr. Helaluddin, Advocate,

. . . For the convict-appellant

(In Criminal Appeal No. 4012 of 2004)

Mr. A.K.M. Foez, Advocate, with

Mr. Sahadat Hossain, Advocate

. . . For the convict-appellants.          

(In Criminal Appeal No. 4157 of 2004)

Mr. Helaluddin, Advocate,

. . . For the convict appellants

(In Criminal Appeal No. 4231 of 2004)

Mr. Khondakar Mahbub Hossain, Sr. Advocate, with

Mr. Belayet Hossain, Advocate

. . . For the convict-appellant

(In Criminal Appeal no. 4679 of 2004)

Mrs. Sakila Rowshan, D.A.G. with

Mrs. Sharmina Haque, A.A.G. and

Mr. Md. Shorowardi, A.A.G.

. . . For the State-respondent

(In Criminal Appeal no. 4679 of 2004)

JUDGMENT

Syed Md. Ziaul Karim, J: By these appeals convict-appellants have challenged the legality and propriety of the Judgment and order of conviction and sentence dated 20-10-2004 passed by learned Sessions Judge, Cox’s Bazar, convicting the appellants Sumon and Babul under Section 302 of the Penal Code and sentencing each of them to suffer imprisonment for life and also to pay a fine of Tk.10,000/- each in default to suffer rigorous imprisonment for one year more.

2.            Convicting appellants namely Sumon, Shamsuddin Ahmed Master, Iqbal Bahar and Abbas under section 324 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for three years.

3.            Convicting appellants namely  Siddique Ahamed, Mosarraf uddin alias Bappu, Surat Alam Taman alias Jabed Hossain and Firoj Ahamed (non-appellant) under Section 323 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for one year.

4.            However, acquitted other two co-accused namely Jahangir Alam and Faridul Alam. Convict Firoj Ahamed served out its substantive sentence and did not prefer any appeal.

5.            All these appeals having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment.

6.            The prosecution case as projected in the first information report (briefly as FIR) and unfurled at trial are that on 11-05-2000 at 9 p.m. after completion of salish with accused, Khorshed Alam(since deceased),along with his brothers namely Sagir Ahmed(P.W.1)), Jalil Ahmed(P.W. 12), Oli Ahmed(P.W.7) were returning towards their home and  on the way to home from Court Bazar Station,  when they happened in front of the house of Bhulu member at Valukia road adjacent to Ratna Palong Buddhist Monastery, then all the FIR named accused numbering twelve being armed with deadly weapons suddenly attacked them. Accused Sumon, and Babul inflicted kiris blow upon the head of the deceased. Accused Abbas and Shamsuddin Master inflicted dagger blow upon the right arm and chest of the deceased respectively. Accused Sumon and Iqbal Bahar dealt blow upon the head and right leg respectively upon Sagir Ahmed (P.W.1), accused Faridul and Jahangir forcibly took one Radu wrist watch worth of Tk. 25,000/- from Md. Sagir (P.W.1). They also snatched away Tk.10,500/- from him. Accused Firoz and Siddique dealt lathi blow upon him causing serious bleeding injuries.

7.            Accused Jahangir and Firoz snatched away Tk.5,200/- from Jalil Ahmed (P.W.12), accused Surat, Mosharraf and Tomon dealt indiscriminately lathi blows to other witnesses.

8.            Accused Sumon, Iqbal Bahar Babul and Siddique forcibly entered into the dwelling hut of deceased brother’s wife Maleka (P.W.3) and mercilessly beaten her causing seriously bleeding injuries. Of them accused Iqbal dealt a kiris blow upon the right hand of Maleka Begum. Having had heard the incident witnesses rushed to the scene. Afterwards seriously wounded Sagir Ahmed (P.W.1) and Khorshed Alam were shifted to Cox’s Bazar hospital in critical conditions; other injured Oli Ahmed (P.W.7) and his wife Maleka (P.W. 3) were admitted to Ukia hospital.

9.            Later Khorshed was shifted to Chittagong Medical College hospital, then to the Nibidita Hospital wherein on 13-05-2000 at mid-night he succumbed to the injuries. With these allegations prosecution was launched by lodging an FIR by brother of deceased Md. Sagir Ahmed (P.W. 1) as informant which was recorded as Ukia Police Station Case no. 8(5) of 2000 corresponding to G.R. no. 45 of 2000.

10.        The Police after investigation submitted charge-sheet under sections 143, 447, 448, 354, 323, 326, 307, 302, 379, 34 of the Penal Code accusing twelve accused including the appellants.

11.        Eventually the case was taken up for trial by the learned Sessions Judge, Cox’s Bazar wherein the accused were called upon to answer the charge under sections 302, 34 and 326 of the Penal Code to which the accused on dock pleaded not guilty and claimed to be tried.

12.        In course of trial the prosecution in all produced twenty witnesses and examined nineteen witnesses out of twenty eight charge sheeted witnesses. The defence examined none.

13.        After closure of prosecution case the accused on dock were examined under section 342 of the Code of Criminal Procedure again they repeated their innocence but led no evidence in defence.

14.        The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication.  It was divulged in defence that due to previous enmity and internal feud, they were falsely implicated in this case out of vengeance at the instance of local rivals.

15.        After trial the learned Judge convicted the appellants and another namely Firoz Ahmed (non appellant) as aforesaid. However acquitted other two  co-accused namely Jahangir Alam and Faridul Alam holding :

(a)         The prosecution successfully proved the charge of murder against the appellants Sumon and Babul;

(b)         The evidence regarding other co-convicts are consistent uniform and corroborative with each other with all material particulars.

(c)          Fatal blows as inflicted by accused Sumon and Babul were well corroborated by the doctor who held autopsy and the injuries inflicted upon the other witnesses were also corroborated by all the prosecution witnesses.

         Feeling aggrieved by the aforesaid judgment and order of conviction and sentence, the appellants preferred the instant appeal.

16.        The learned Advocates appearing for the convict-appellants seek to impeach the impugned judgment and order of conviction and sentence on three fold arguments:

17.        Firstly:   The manner of occurrence as stated in the first information report were not consistent with the evidence as adduced by the prosecution in the Court and no incriminating alamats were seized from the alleged place of occurrence which cast a serious doubt upon the  prosecution case.

18.        In support of their contentions they refer the case of Nazrul Islam and others vs. The State 45 DLR- 142 held:

   "Where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy. "

19.        In the case of Moinullah and another vs. The State 8 BLD 100 held:

   " Non-examination of important witnesses conversant with the facts of the case and non-seizing of alamats such as bloodstained earthy and wearing apparel of the accused- Whether for withholding such vital evidence adverse presumption should be drawn against the prosecution-Non examination of impartial witnesses gives rise to a presumption adverse to the prosecution case- Had they been examined, possibly they would have disclosed the truth or at least they would have stated something which might not be favourable to the prosecution story- Withholding such material witnesses caused serious prejudice to the defence- Failure to seize bloodstained earth from the place of occurrence and wearing apparels of the accused raises an adverse presumption against the prosecution story rendering the same as unacceptable.″

20.        Secondly: In all criminal cases prosecution is to prove its case beyond all reasonable doubt, particularly in respect of motive in this particular case prosecution measurably failed to discharge its duty rather they shifted onus to the accused which is absolutely an illegality. 

21.        In support of their contentions they refer the case of Abul Bahar alias Abul Bahar and others vs. The State 5 BLD 84 held:

   " Criminal Trial- Duty of prosecution- Prosecution is to call all the witnesses to prove the case- If all the witnesses are not called without sufficient reason being shown the court may draw adverse inference against the prosecution-But the prosecution is not bound to produce a witness if he is not expected to give true evidence though he was mentioned in the F.I.R. and charge-sheet- Non production of witnesses named in the charge-sheet and FIR have weakened the prosecution case and as such an adverse inference should reasonable be drawn against the prosecution- Prosecution should produce essential witnesses to unfold narrative on which  the prosecution is based. "

22.        In the case of Lal Mia alias Lalu vs. The State 1988 BCR(AD) 147 held:

"The accused appellant and six others were convicted by the trial court under sections 302,34 and 148 of the Penal Code and was sentenced to transportation for life and one years rigorous imprisonment respectively. The High Court Division upheld the order of conviction of the appellant under section 302 and 148 and acquitted the six others of the offence under sections 302, 34 but upheld the order of conviction and sentence under section 148. Leave to appeal was granted to consider the question whether the conviction and sentence of the appellant under section 302 of the Penal Code was justified. "

23.        Thirdly:  For the sake of arguments if the -prosecution succeeded to prove its case of inflicting blows upon the deceased Khorshed Alam, then the same will not come within the ambit of section 302 of the Penal Code as defined in section 300 of the Penal Code.

24.        In support of their contentions they refer the case of State, represented by the Solicitor, Ministry of Law and Justice, Government of Bangladesh vs. Montu alias Nazrul Haque and others  44 DLR(AD) 287 held:

   Culpable homicide The injuries, though caused intentionally, are of such a nature that these are "likely to cause death"   and this does not constitute ‘murder’- it constitutes culpable homicide not amounting to murder. "

25.        In the case of Abdul Khaleque and others vs. State 48 DLR-446 held:

   " There was none to stop Rashid to deal repeated blows if he had the intention to kill- he merely had struck one blow which eliminates the intention to kill. Therefore, the intention to kill is lacking-it is not a culpable homicide amounting to murder but a culpable homicide not amounting to murder. "

26.        In the case of Abul kashem vs. State 7 BLC  384 held:

   " Appellant Abul Kashem having struck a solitary blow on the head of Jeleha Khatun with a tangi in the midst of the chase and counter-chase as a result of which she succumbed to her injury. Having regard to the totality of the circumstance it can only be said that the appellant must be attributed the knowledge that he was likely to cause an injury which was likely to cause death of Jeleha Khatun and not with any intention to cause her death. The offence committed by the appellant, therefore, amounted to culpable homicide not amounting to murder, punishable under section 304 second part of the Penal Code and not under section 302 and accordingly, the sentence was modified for ten years in place of imprisonment for life. "

27.        The learned Counsels lastly submit that the judgment and order of conviction and sentence based on misreading and non consideration of the evidence on record. Therefore, the same cannot be sustained in the eye of law.

28.        The learned Deputy Attorney General appearing on behalf of the State-respondent opposes the appeal and submits that the occurrence took place on 11-05-2000 at 9:00 p.m. but at a very earliest point of time, on 13-05-2000 the FIR was lodged by the brother of deceased who was critically wounded at the time of occurrence. She adds that the charge was proved by consistent and corroborative evidence. She next submits that the appellants namely Sumon and Babul who inflicted blows upon the deceased Khurshed with the clear intention for causing death which is culpable homicidal amounting to murder and the same will come within the ambit of section 300 of the Penal Code.

29.        In support of her contentions she refers the case of Abdul Quddus vs. The State 43 DLR(AD) 234 held:

   "The testimony of the solitary eye witness could not be shaken in any manner by the defence in cross-examination for which it is difficult to disbelief her testimony as she narrated the prosecution case in details. Even a child witness can be relied if he/she is capable of understanding and replying the question intelligently. "

30.        In the case of Yogeshwar Gope vs. The State BCR 2006-267 held:

   "(a) PWs. 1-4 being father, mother and sisters of the deceased deposed before the Court  and in cross-examination put to them their evidence remained unshaken and unblemish. From the evidence of aforesaid witnesses it is also proved that they established their claim of lighting kupi light and there is nothing to disbelieve them. The occurrence taking place in the house of P.W. 1 at about 3:00 a.m. it is not unlikely that the inmates of the house would become the natural witnesses. Only because of their relationship their evidence cannot be thrown way unless the evidence is found to be untrue or tainted with motive.

31.        The learned Counsel submits that all the prosecution witnesses deposed in a very consistent manner, there were no discrepancies or  contradictions in their evidence.

32.        In support of her contentions she refers the case of State vs. Sree Ranjit Kumar Pramanik 45 DLR 660 held:

   "When discrepancies in testimony were mere discrepancies, and not contradictions, they did not affect the truth of what was stated in Court. "

33.        She adds that in a case like this motive is immaterial.

34.        In support of her contentions she refers the case of The State vs. Giasuddin and others 18 BLD -254 held:

   "When there is sufficient direct evidence to prove an offence, motive is immaterial and has not vital importance. While trying a case under section 302 of the Penal Code or hearing an appeal involving Section 302, the Court must not consider first the motive of the murder, because motive is a matter of speculation, and it rests upon the mind and special knowledge of the accused persons. Motive is not a necessary ingredient of an offence under section 302 of the Penal Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration specially when the case is based on circumstantial evidence. "

35.        The learned Deputy Attorney General lastly submits that the learned Judge of the Court below after considering the evidence on record rightly convicted the accused which calls for no interference by this Court.

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

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

38.        P.W. 1 Md. Sagir Ahmed is the informant of this case and brother of the deceased.  He became injured in the occurrence.  He deposed that on 11-05-2000 at 9:00 p.m. he along with other brothers after completion of Salish with the accused, were going to their home and when they reached in front of the house of Bhulu member at Ratna Palong on the Balukia road, then accused Sumon, Iqbal Bahar, Babul, Abbas, Surat Alam, Bappu, Shamsuddin, Tomon, Faridul Alam, Jahangir Alam, Firoz Ahmed being armed with deadly weapons like dao, dagger, kiris, cut-gun, lathi, and iron rod attacked them. Accused Sumon a kiris in his hand dealt blow upon the head, accused Iqbal Bahar at his right arm causing bleeding injuries. He fell down and accused Jahangir Alam, Firoz Alam, dealt indiscriminate lathi blow upon him. Accused Iqbal dealt a kiris blow upon his right leg causing serious bleeding injuries. Accused Surot Alam, Bappu, Tomon dealt iron rod and lathi blow upon his brothers Jalil and Oli Ahmed causing bleeding injuries. Accused Babul dealt kiris blow upon his deceased brother Khorshed. Accused Abbas dealt a dagger blow upon the right arm of deceased Khorshed, accused Shamsuddin dealt a dagger blow at the chest of deceased Khorshed, then accused Sumon told that the deceased has not yet died so he again saying " n¡m¡ HM­e¡ j­l e¡C " then he dealt kiris blow upon the head of deceased Khorshed. Accused Farid, Jahangir snatched away his Radu wrist watch and cash money for Tk.10,500/-. Accused Jahangir, Firoz also snatched away Tk. 5,200/- from his brother Jalil. Afterwards the accused rushed toward Court bazaar with his injured brother Khorshed by Rickshaw.  On their alarm witnesses Nazrul Islam, Moqbul Ahemd and Syed Alam happened at the scene and carried them to the Ukia hospital. Later, he came to know that the accused also fired towards their house. Accused Sumon, Iqbal Bahar, Babul, Tomon forcibly entered into his dwelling hut and dragged out his younger brother’s wife Maleka and accused Iqbal dealt a kiris blow upon her right arm. On her screaming witness Rashid Ahmed, Rafiq  Alam, Rafiquddin,  happened at the scene and sent Maleka to the hospital. He also heard about the incident from Maleka. The injuries as inflicted upon him aswellas his brothers were found critical at Ukia hospital. Then they shifted to the Cox’s Bazar Sadar hospital wherein the condition of his brother Khurshed became more critical then they shifted him to Chittagong Medical college, from there to Chittagong Nibedita hospital wherein he succumbed to the injuries.  He proved the FIR as Exhbt. 1, and his signature on it as Exhbt. 1/1.

39.        In cross–examination he stated that at the time of occurrence 10/20 locals happened at the scene to whom he disclosed about the occurrence. He was under treatment about 20/25 days. Then he met with the Police for two or three times. He identified the accused by the light of decoration and electric light. He lastly denied the suggestion that due to some internal feud relating to some land, he implicated the accused falsely in this case and was deposing falsely.

40.        P.W. 2 Md. Nurul Islam is the cousin of the deceased and not eye witness to the occurrence. He deposed that he heard about the occurrence which took place on 11-05-2000 at 9:15  p.m. when he reached in front of the rice shop of Iskandar Sowdagar wherein he found Khurshed in a bleeding condition and he was dragging by the accused Sumon, Tomon, Bahar, Babul, Firoz, Bappu, Surat Alam, Farid Alam, Jahangir, Shamsuddin  and others towards hotel of Jahiruddin. The victim Khurshed was sited in a Chair wherein accused Shamsuddin  Master dealt a lathi blow and seriously assaulted him. He along with Chairman Akter rescued him and sent him Ukia hospital, on the following day Khurshed died. He identified the accused on dock except Jahangir.

41.        In cross-examination he stated that on 13-05-2000 he was examined by the Police. He did not see the occurrence how the deceased and others sustained injuries. He denied the suggestion that witnessing accused Sumon and Tomon was not true.

42.        P.W. 3 Maleka Begum, brother’s wife of deceased. She deposed that on 11-05-2000 at 9:00 p.m.  he found that accused Sumon, Iqbal Bahar, Babul, Abbas, Surot Alam, Bappu, Shamsuddin, Tomon, Farid Alam, Jahangir Alam and Firoz Ahmed being armed with deadly weapons running towards their house. She being afraid went back inside the room wherein accused Sumon, Babul, Tomon, Iqbal entered and dragged her to the courtyard wherein accused Iqbal dealt a kiris blow at  her right hand, Tomon took away her ring, injured Khurshed was shifted to the Chittagong medical college hospital wherein he succumbed to the injuries. She identified all the accused on dock except accused Jahangir Alam.

43.        In cross- examination she denied that she did not state to Police about entry of accused in his dwelling hut. During investigation the Police did not seize any blood stained earth from the place of occurrence. He denied the suggestion that she was deposing falsely.

44.        P.W. 4, Asia Khatun was tendered by the prosecution and the defence declined to cross-examine her.

45.        P.W. 5 Dr. Md. Asharaful Islam, P.W. 6 Dr. Md. Shahjalal were the medical officers at the relevant time at Ukia and Cox’s Bazar hospitals respectively. They examined Maleka, Oli Ahmed, Zalil and Khurshed and issued certificates to that effect. They proved it as Exbts. 2-6.

46.        P.W. 7 Oli Ahmed is the brother of deceased and injured person. He deposed that on 11-05-2000 at 8:00 p.m. after settling a disputed matter he and his brother Khurshed Alam were returning from Ukia Court Bazar and when they reached in front of the house of Bhulu member, at 9:00 p.m. then accused Sumon, Iqbal Bahar, Babul, Abbas, Surot Alam, Bappu, Shamsuddin, Tomon, Faridul Alam, Jahangir Alam and Firoz Ahmed being armed with kris, lati, iron rod and gun etc attacked them, Sumon dealt a kiris blow upon the head of Sagir Ahmed, Iqbal Bahar dealt a kirs blow at the right arm and right leg. Accused Jahangir Alam and Firoz Alam dealt indiscriminately lathi blow. Accused Farid, Jahangir took away wrist watch worth Tk.10,500/- from his brother. Accused Babul dealt a kiris blow at the head of Khorshed accused Abbas dealt a dagger blow upon the right arm of Khurshed, accused Shamsuddin also dealt a blow on the chest of Khorshed by a dagger. Accused Surot Alam dealt a kiris blow upon the head of his brother Jalil, accused Bappu and Tomon inflicted lathi blow upon him, accused Tomon, Bappu and Surot Alam inflicted lathi, rod and kiris bows upon  Jalil. Accused Sumon dealt another kiris blow upon the head of Khurshed and dragging him in a rickshaw, Injured Khurshed was taken to Ukia hospital. From there to Cox’s Bazar, lastly to Chittagong wherein he succumbed to the injuries.

47.        In cross-examination he stated that the Police examined him after 2/3 days from the occurrence. He denied the fact that  he did not state to the Police that accused Sumon, holding kiris standing in front of the house of Bhulu member, resisted by accused persons, accused Jahangir and Farid snatched away Rado wrist watch from wounded Sagir worth Tk.10,500/-.Accused Shamsuddin dealt a blow upon the chest of Khurshed, accused Tomon, Surot Alam inflicted lathi, rod, kiris blow upon Jalil and taking him to Court Bazar hospital on boarding Rickshaw. He denied the suggestion that accused Sumon did not assault the deceased Khurshed Alam, and there was  internal feud between them and they were falsely implicated in this case.

48.        P.W. 8 Syed Hossain a local seizure list witness. He deposed that on 11-05-2000 at 9:15 a.m. to 9: 30 a.m. victim Khurshed seated in Zahiruddin’s shop wherein accused Sumon, Shamsuddin master, Surat Alam, Bappi and Babul inflicting fist and blow upon him. At that time Khurshed sustained injuries and he was taken to Ukia hospital from there to Cox’s Bazar and lastly to Chitgagong medical college wherein he succumbed to the injuries. On 14-05-2000 the Police seized some alamats namely lathi and prepared seizure list and he stood as one of the witness in the seizure list (Exhbt.7) and his signature on it Exhbt. 7/1. He also proved the seized articles as material Exhbt. I, Ia and Ib series.

49.        In cross-examination he denied the suggestion that he did not go to the P.O. for bringing tea and some unknown persons brought Khurshed in Zahiruddin’s Tea stall, was deposing falsely.

50.        P.W. 9 Rashid Ahmed, a local witness. He deposed that on 11-05-2000 at 9:00 p.m. he found all the accused came towards his house and forcibly entered inside the house. They dragged the deceased’s younger brother wife Maleka, accused Bahar inflicted kiris blow upon Maleka and assaulted her causing serious bleeding injuries. Having had heard the incident the other locals rushed there. He identified all the accused on dock except Jahangir.

51.        In cross-examination he denied the fact that some unknown persons assaulted Khurshed for dragging Farzana daughter of Shamsuddin .

52.        P.W. 10  Nazrul Islam, a local witness, he deposed that on 11-05-2000 at 8:00 a.m. he found that accused Sumon, Bahar, Babul, Abbas, Surat Alam, Pappu, Shamshu Master, Tomon, Jahangir and Firoz mercilessly beaten Khurshed and others with deadly weapons like Chori, lathi, iron rod etc. Accused Sumon inflicted kiris blow upon Sagir and Khorshed upon their head, accused Bahar inflicted kiris blow at the right hand of Sogir, accused Jahangir inflicted indiscriminating lathi blows upon Sagir, accused Babul inflicted Kiris blow upon the head of Khurshed, accused Abbas inflicted dao blow in the right leg of Khurshed, accused Jahangir, Firoz and Tomon inflicted lathi blows indiscriminately upon the Oli, Jalil and Sogir, accused persons then took injured Khurshed to Court Bazar by rickshaw.

53.        In cross-examination he stated that he was examined by the Police on 19-05-2000, and denied the fact that victim Khurshed and others were in front of  the shop of Eskander wherein he was assaulted by the accused, accused Sumon inflicted kiris blow upon the head of Sogir and indiscriminate lathi blows by Jahangir and Firoz. He denied the suggestion that he was deposing falsely.

54.        P.W. 11 Rokeya Begum, wife of the deceased’s brother and not eye witness to the occurrence. She deposed that on 11-05-2000 at 9:00 p.m. accused Sumon, Bahar, Babul, Abbas, Surat Alam, Pappu, Shamshu Master, Tomon, Farid, Jahangir and Firoz being armed with deadly weapons like lathi, Kiris, hockey stick etc. entered into their house. Accused Iqbal Bahar dragged out Maleka from her house and inflicted kiris blow upon her head when she tried to rescue her then accused Sumon inflicted lati blow upon her. On her screaming neighbours rushed to the scene and accused departed from there.

55.        In cross-examination she denied the suggestion that she was deposing falsely.

56.        P.W.12 Abdul Jalil, brother of the deceased Khurshed and also an injured person. He deposed that on 11-05-2000 at 8:00 p.m. when he along with his brother Sogir, Khurshed and Oli on the way to their home reached in front of the house of Bhulu member, then accused Sumon, Pappu, Abbas, Surat alam, Shamsuddin, Farid, Tomon, Jahangir and Firoz being armed with lathi, kiris and local gun attacked them. Accused Surat Alam inflicted kiris blow on the head of Sogir, accused Iqbal on the right arm of Sogir, accused Jahangir and Firoz dealt indiscriminate lathi blows upon the head of Sogir, accused Babul dealt kiris blow upon the head of Khurshed, Abbas dealt a dagger blow at the right arm of Khurshed, accused Shamsuddin Master dealt blow at the chest of victim Khurshed, accused Sumon inflicted another kiris blow upon the head of Khurshed saying Khurshed has not yet died, accused Surat Alam inflicted kiris blow, accused Bappu and Tomon inflicted indiscriminate lathi blows upon the head of Khurshed and Oli. Accused persons con-jointly carried his injured brother Khurshed to Court bazar by Rickshaw. On their alarm witnesses rushed to the spot and carried them to Ukia hospital from where Sogir and Khurshed were taken to Cox’s Bazar hospital. From there Khurshed was shifted to Chittagong for better treatment wherein he succumbed to the injuries on 13-05-2000. He identified all the accused on dock except accused Jahangir.

57.        In cross–examination he stated that on 17-05-2000 he alone was examined by the Police. He denied the suggestion that he did not state to the Police which he stated before the Court, and to save them from the incident of assaulting Farzana the instant case was lodged.

58.        P.W. 13 Nurul Alam, is a local witness and heard the occurrence. He deposed that on 11-05-2000 at 9:00 p.m. Abbasuddin Chairman, Didarul Alam, Secretary, Farid and Abul Kashem were sitting in the tea-stall of Zahiruddin. One person informed that Khurshed was attacked and about 100/120 locals tried to rescue him. He was declared hostile by the prosecution.

59.        In cross-examination by the prosecution he denied the fact that he witnessed the occurrence  of inflicting blows upon Khurshed, Jalil, Oli and Sogir and being biased by the accused he deposed falsely.

60.        P.W. 14 Syed Alam, a local witness. He rushed to the scene after occurrence. He deposed that on 11-05-2000 at 8:30/9-00 p.m. on the way to his home he found Jalil, Sogir, Oli and Khurhsed were ahead of him when they reached in front of the house of Bhulu member 10/12 persons attacked Jalil and others. By the electric bulb he recognised Sumon, Tomon, Babul, and Abbasuddin and they beat Jalil and others and took Khurshed by rickshaw. He also identified the accused on dock.

61.        In cross-examination he denied the suggestion that he did not witness the occurrence.

62.        P.W. 15 A.S.P. Md. Abdul Hamid. He deposed that on 13-05-2000 he was attached with Ukia Police Station as Officer in charge. He recorded the FIR and filled up of its form Exhbt. 7 and handed over the investigation to S.I. Zakir.

63.        In cross- examination he stated that he received the FIR through Syed Ahmed with medical certificate.

64.        P.W. 16 Md. Shahjahan Hawlader. He deposed that on 23-07-2000 he was posted as O/C at Ukia Police Station. He took up the investigation. He visited the place of occurrence and after his transfer he handed over the case record to the S.I.  Zakir for investigation.

65.        P.W. 17 A.S.I. Nimai  Chandra Pal. He held inquest upon the cadaver of Khurshed and submitted a report, he proved the same as Exhbt. 9 and his signature on it 9/1. He also put the challan of the dead-body  as Exhbt. 10.

66.        In cross-examination he stated that at room no.102 of Nibidita hospital, he held inquest, identified by Rashid Ahmed elder brother of the deceased.

67.        P.W. 18 S.I. Md. Fazle Rabbi, he deposed that 03-11-2000 he was attached with Ukia P.S. and subsequently the case was entrusted to him for investigation. He visited the place of occurrence and he examined some of the witnesses. After concluding investigation he submitted charge sheet.

68.        In cross-examination he denied the suggestion that he submitted a perfunctory charge-sheet.

69.        P.W.19 S.I. Zafar Ali. He deposed that he partly investigated the case. He prepared sketch map with index which he proved it as Exhbt. 11 and his signature on it as Exhbt. 11/1, Index Exhbt. 12 and his signature on it as Exhbt. 12/1. Later he handed over the investigation to O/C Ukia Police Station.

70.        In cross-examination he stated that witness Oli Ahmed did not state about inflicting blow by Iqbal Bahar upon Sogir. He denied the suggestion that he made a perfunctory investigation.

71.        P.W. 20 Dr. Abdul Hye deposed that on 13-05-2000 he was posted in the Chittagong Medical College hospital in Forensic Medicine Dept. He held autopsy upon the cadaver of deceased Khurhsed Alam and found the following injuries:

72.        One lacerated wound with stitches 11" size right parietal region of scalp and lacerated wound 2" mid parietal region with diffused haemorrhage at the side.

73.        Bruise (a) right arm middle part back side 1" x ¼" , (b) right anterior chest 1" x ½ " below right nipple, (c) right wrist 2 " x ½ ", (d) back of chest 3" x ½ " below both scapula transverse.

74.        Brain: subdural clotted blood ¼", thickness present over all lobes of the brain.

75.        He opined that death was due to head injury with intracranial haemorrhage causing shock and failure of the vital centers which was ante-mortem in nature. He proved the post mortem report as Exhbt. 15 and his signature on it as Exhbt. 15/1.

76.        In cross-examination he stated that the injuries caused by blunt weapon.

77.        These are all of the evidence on record as adduced by the prosecution to prove the charge.

78.        Now the question calls for consideration how far the prosecution proved the  charge under Sections 302, 34 and 326 of the Penal Code against the appellants. Such question along with the submissions of the defence should be answered in the following manner:

79.        In approaching and answering to the points drawn up, the cardinal principles of criminal jurisprudence in awarding conviction followed by sentence upon an indicted person demands meditation. A legal survey of law, appraisal of evidence, browsing eye on materials brought on record, analysis of fact and circumstance of the case, inherent infirmities disturbing and striking facts of prosecution case are also required to be taken into consideration. Rival contentions surged forward from both sides shall be also addressed and considered by us.

80.        Fundamental principles of criminal jurisprudence and justice delivery system is the innocence of the alleged accused who should be presumed to be innocent until the charges are proved beyond reasonable doubt on the basis of clear, cogent and credible evidence and that onus of proving everything essential to the establishment of charge against the accused lies upon the prosecution which must prove charge substantially as laid to hilt and beyond all reasonable doubt on the strength of clear, cogent credible and unimpeachable evidence. In a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests on the prosecution and on its failure, it cannot fall back upon the evidence adduced by the accused in support of his defence to rest its case solely thereon. Proof of charge must depend upon judicial evaluation of totality of evidence, oral and circumstantial, and not by an isolated scrutiny. Prosecution version is also required to be judged taking into account the overall circumstances of the case with a practical, pragmatic and reasonable approach in appreciation of evidence.

81.        It is always to be remembered that justice delivery system cannot be carried away by heinous nature of crime or by gruesome manner in which it was found to have been committed and graver the charge is greater is the standard of proof required. It should also bear in mind that if the accused can create any doubts by adducing evidence or cross examining the PWs in the prosecution case, the accused is entitled to get benefit of doubt. It is conveniently observed that though sad, yet is a fact that in our country there is a tendency on the part of the people to rope in as many people as possible for facing trial in respect of any criminal case. It has been even found that innocent person, including aged infirm and rivals, are booked for standing on dock. Some are acquitted by the Court of first instance and some by appellate Court, but only having been in incarceration for years. Such efforts on the part of relatives of victim and other interested persons invariably is done and thus it becomes difficult on the part of a Court to find out the real culprit. Under such circumstances and in view of the prevalent criminal jurisprudential system, a judge is to find out the truth from a bundle of lies and to shift the grain out of chaff. A Judge does not preside over a criminal trial merely to see that no innocent person is punished. A Judge, also presides to see that guilty man does not escape. Both are public duties. Law therefore, cannot afford any favour other than truth and only truth.

82.        We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a)      The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b)      The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c)      In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d)      There must be clear and unequivocal proof of the corpus delicit.

e)      The hypothesis of delinquency should be consistent with all the facts proved.

         Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

83.        On going to the materials on record it transpires that the prosecution in all produced twenty witnesses. Of them, examined nineteen witnesses. P.W. 1 is the informant and brother of deceased. He along with his other two brothers P.Ws. 7 and 12 witnessed the occurrence and became wounded by the accused. P.Ws. 2, 8, 9, 10,11, 13 and 14 are the local witnesses and heard the occurrence.  P.W. 3 also an injured lady at the later incident.  P.Ws. 5 and 6 are the doctors who examined the victim at a very early stage in the hospital.  Of them, P.W.5 examined P.Ws. 3 and 7, P.W. 6 examined, P.Ws. 1, 12 and deceased  and also issued certificates.

84.        P.Ws. 15, 16, 17, 18 and 19 are the Police personnels. Of them, P.W. 15  recorded FIR, P.Ws. 16, 18 and 19 investigated the case, of them P.W. 18 submitted charge-sheet accusing 12 accused including the appellants. P.W. 17 held inquest upon the cadaver of the deceased. P.W. 20 is the doctor who held autopsy upon the cadaver of Khurshed and submitted report Exhbt. 15.

85.        On meticulous examination of the evidence on record we find that the instant case is absolutely rest upon the evidence of P.Ws. 1, 7 and 12 who are the full brothers of deceased and sustained injuries at the time of occurrence. Other witnesses were examined to corroborate their evidence. P.W. 1 Md. Sagir Ahmed is the informant and brother of the deceased categorically stated that on 11-05-2000 at 9:00 p.m. he along with his other brothers were returning to his home after completion of a salish held with the accused and when they reached in front of house of Bhulu member then accused Sumon, Iqbal Bahar, Babul, Abbas, Surot Alam, Bappu, Shamsuddin Master, Tomon, Farid, Jahangir and Firoz being armed with deadly weapons like kiris, dagger, dao, iron rod, lathi etc. suddenly attacked them. Accused Sumon and Iqbal inflicted kiris blows upon his head, and right arms respectively, accused Siddique and Firoz inflicted lathi blows upon him causing serious bleeding injuries, accused Faridul and Jahangir snatched his wrist watch and cash money, accused Surot Alam , Bappu, Tomon, inflicted iron rod and lathi blows upon his brother Oli Ahmed(PW-7) and Jalil Ahmed(PW-12), accused  Babul inflicted kiris blow upon the head of his deceased brother Khurshed Alam, accused Abbas dealt dagger blow upon the right arm of deceased Khurshed, accused Shamsuddin Master dealt a dagger blow at the chest of Khorshed, accused Sumon thereafter dealt a kiris blow upon the head of deceased Khorshed, accused Jahangir, Firoz also snatched away Tk.5,200/- from Jalil (PW-12), accused also forcibly entered into the dwelling hut of his brother and dragged out his brother’s wife Maleka  Begum (PW-3) and mercilessly beaten her causing serious bleeding injuries. Then he along with his other injured brothers Oli Ahmed, Jalil, Khorshed and brother’s wife Maleka begum were taken to Ukia hospital. Later they were shifted to Cox’s Bazar sadar hospital but his brother Khurshed was shifted to Chittagong Medical college hospital from where to Chittagong Nibedita hospital, wherein he succumbed to the injuries on 13-05-2000.  The evidence of P.W.7 Oli Ahmed, P.W.12 Abdul Zalil provide corroboration in respect of inflicting blows by accused Sumon, Babul upon the head of deceased Khorshed and other accused upon the injured persons, including themselves. P.W. 3, Maleka Begum, wife of P.W.7 Oli Ahmed also witnessed the occurrence and her evidence furnished corroboration with that of the others evidence. P.W. 20 Dr. Abdul Hye who held autopsy upon the cadaver of Khurshed and found as many as four injuries. Of them two injuries upon the parietal region. P.Ws. 5, Dr. Md. Ashraful Islam, P.W. 6 Dr. Shahjahan who at the very inception of the case examined P.Ws. 3, 7, and P.Ws. 1, 12 and the deceased Khurshed  and issued certificates. On critical analysis of the injury certificates we find that the same also provide corroboration with regard to the inflicting  blows by the other accused. Therefore, we find that the evidence of P.Ws. 1, 7, 12 and 20 in respect of inflicting kiris blows upon the head of the deceased Khurshed by convict Sumon and Babul are consistent, uniform and corroborative with each other with all material particulars. There is no absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses, having no reason whatsoever to depose falsely against them. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever.  So the same are invulnerable to the credibility.

86.        In respect of other convicts namely Shamsuddin Ahmed Master, Siddique Ahmed, Iqbal Bahar, Abbas, Mosarrafuddin, Surat Alam, Tomon alias Jobed Hossain, we find that they were with the principle assailants attacked the deceased along with his two brothers and they  were also present at the scene of occurrence. Of them, Iqbal Bahar dealt a kiris blow upon the right hand of P.W. 1 Md. Sagir Ahmed, Siddique and Firoz dealt lathi blows upon PW-1, accused Surot Alam, Bappu, Tomon dealt iron rod and lathi blows upon the persons of Oli Ahmed(PW-7), and Jalil (PW.12), accused Abbaas and Shamsuddin dealt a dagger blows upon the deceased Khurshed. The blows inflicted by those accused also provide corroboration with the injuries shown in the certificates issued by the doctors P.Ws. 5 and 6. Therefore, we find that the evidences against those accused are also consistent, uniform and corroborative with each other. So the same are also invulnerable to the credibility. In this particular case we find that the prosecution tried to prove its case by producing twenty witnesses. Of them nineteen witnesses were examined. They are all competent and their evidences are also self contained. The defence did not led any evidence although they had an explanation to the effect that there were an internal feud between them. In such situation the plea raised by the defence has no leg to stand and as such the defence having not deliberately led any evidence in respect of their false/ pseudo plea. So it recoils against them. It is significant to point out that there are consistent, uniform evidence against the convict appellants regarding inflicting kiris blows upon the deceased by which the deceased succumbed to the injuries by convict Babul and Sumon and other co-convict-appellants also assaulted and participated in assaulting the deceased aswellas the other witnesses which were corroborated by them. So in our view in the absence of any other reasonable explanation asto the safe departure of such facts, no conclusion other than the guilt of the accused can be drawn.

87.        It is true that P.W.1 is the informant and brother of the deceased did not expressly mentioned some facts in FIR in respect of inflicting blows by the accused but in his evidence he categorically stated all the facts which he witnessed and heard.

88.        In our view such omissions does not materially affect the prosecution case having regard to other evidence on the point.

89.        In the case of State vs. Abdus Sattar and others 43 DLR (AD) 44 held:

FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected because the informant had made an omission to mention about the fact which the witness stated in his deposition.”

90.        In the said case at paragraph 18 it was observed that:

“ The first objection which is taken against the impugned judgment is that the learned Judges of the High Court Division have put forward such a ground for disbelieving PWs.4 and 5 (eye-witnesses), and this was the only ground, which was plainly in disregard of the accepted principles regarding the appreciation of the evidence. Both these witnesses claimed that they had been the respondents dragging away the deceased Abdul Hakim towards the house of respondent Nurul Haque by putting a gamcha on his neck. PW.4 Arab Ali who was inside his house at that time was actually called out by PW 5, Arshed Ali who first saw the dragging of the deceased. PW. 4 came out of his house and obstructed the respondents but he was driven away by some of the companions of the respondents. PW 1, Abdur Rab, the informant, stated in his evidence that after the recovery of the dead-body of Abdul Hakim from the ditch, PWs.4 and 5 informed him and others that they had seen the dragging of Abdul Hakim by the respondents. It has been noticed that PWs. 4 and 5 along with others accompanied PW 1 to the house of Nurul Haque and the recovery of the dead-body was made in their presence. PW 1, however, did not mention in the FIR that PWs. 4 and 5 had informed them that they had seen the dragging away of Abdul Hakim by the respondents. The learned Judges observed that there was no reason to omit this part of the story from the first information report and “accordingly we cannot place any reliance on the statement of PW. 4 and 5”. It is well-established that the FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected because the informant had made an omission to mention about the fact which the witness stated in his deposition. To reject the evidence of a witness only on such ground is against the accepted norms of the administration of criminal Justice.”

91.        In the case of Dipok Kumar Sarkar vs. The State 8 BLD (AD) 109 held:

First information  Report- Its value in case of apparent omission of fact- FIR is not a piece of substantive evidence but may be used for corroborating or contradicting the maker only- The attention of the P.W. having not been drawn to his omission in cross-examination, the defence could not take advantage of the contradiction (be omission)- Even otherwise this omission does not materially affect the prosecution case having regard to other evidence on the point- Evidence Act( 1 of 1985) s.145.

92.        In the said case at it was observed at paragraph 12 are that:

“ As to the first ground it is seen that P.W.10 C. Bagharpara P.S. stated in his evidence that on reaching the P.O. he arrested the appellant and on his admission the dead-body of his wife was recovered from the latrine well of Pulin Sarkar and the appellant himself was engaged in bringing out and washing the dead-body. This statement, however, is not therein the F.I.R. made by him. There he stated that he received source information that the appellant had killed his wife and her dead-body had been concealed in the latrine well of Pulin Sarkar of the same village at a distance of about 200 yards. He lifted the dead-body from the well and go it washed in presence of witnesses and took the appellant into custody. Thus, there is apparently an omission in the FIR as to the recovery of the dead-body by the appellant himself following his admission. FIR is not a piece of substantive evidence out may be sued for corroborating or contradicting the maker only. Admittedly the attention of P.W.1 was not drawn to his omission in cross-examination. The defence could not take advantage of the contradiction (by omission) without drawing the attention of P.W.1 under Section 145 of the Evidence Act. Even otherwise we think this omission in the F.I.R. does not materially affect the prosecution case having regard to the other evidence in the point. P.W.8 Jagadish Chandra Biswas, Dafadar, stated in his evidence that Dipak (appellant) pointed out the dead-body and himself brought it out from the latrine well. P.W.11 Md. Golam Mostafa, Commissioner, Narail Pourashava, (witness named in the FIR) also stated that Dipak admitted in his presence that he had concealed the dead-body of his wife in the Latrine well of Pulin and he himself brought it out thereform. These two witnesses are disinterested persons, they have no enimus against the appellant or his family and as such there is no reason to disbelieve their testimony as to the recovery of the dead-body by the appellant himself following his admission. It will be seen that the appellant himself admitted in his confession (which we shall presently consider) that on his admission police took him to the house of Pulin and caused him to bring out the dead-body of his wife. Thus we are of the opinion that the aforesaid omission in the FIR could not be a reason for discarding the evidence of the witnesses on the point nor the same made the prosecution case doubtful in any manner.

93.        It is true that amongst the witnesses P.Ws.1, 3, 7, and 12 are the close relations of deceased; they were vital witnesses and the occurrence took place in their presence. The defence extensively cross examined them but nothing could be elicited to shake their credibility in any manner whatsoever, so only for such cause their evidence should not be discarded.

94.        The credit to be given to the statement of a witness is a matter not regulated by rule of procedure, but depends upon his knowledge of fact to which he testifies his disinterestedness, his integrity and his veracity. Apportion of oral evidence depends on such variable in consistence which as a human nature can not be reduced as a set formula (40 DLR 58).

95.        The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness.

96.        Evidence of close persons of the victim cannot be discarded more particularly when close persons does not impair the same. Straightforward evidence given by witness who is closed to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close person will be last person to screen real culprit and falsely implicate a person. So relationship far from being ground of criticism is often a sure guarantee of its truth (40 DLR 58).

97.        From the materials on record, we failed to discover any express motive of accused in the crime of murder, for such cause prosecution will not fail, since motive is not ingredient of offence, prosecution is not bound to prove the motive of the accused for committing the crime (42 DLR(AD)31; 10 MLR(AD)175}.

98.        Motive does not play an effective role when premeditated and cold blooded murder is committed and established my irrefutable evidence. What is important is the nature of evidence and not the motive which may or may not be proved. None proof of motive cannot be a ground to discard the unimpeachable evidence ( PLD 2001 SC 333}.

99.        Proof of motive or previous ill feeling is not necessary to sustain conviction when court is satisfied that appellants are assailants of the victim, but once motive was setup it was to be proved by the prosecution beyond doubt and failure to furnish cogent and reliable evidence could lead to adverse inference against prosecution (PLD 2000 Kar 128). Absence of motive is not ground for acquittal (PLD 1999 Lah 56). Particularly when ocular evidence is reliable and corroborated by medical evidence (AIR 2003 SC 3975). Appellate Division repeated the same view { 57 DLR(AD)(2005)75).

100.    When offence proved motive is immaterial. Weakness of the motive alleged, though a circumstances to be taken into account, cannot be a ground for rejecting the direct testimony of ocular witness which is otherwise of a reliable character. If the offence has been satisfactory proved by direct evidence than it is immaterial as to whether the motive has been established or not (1968 P Cr. LJ 1251). 7 MLR(2002)119. If there is no sufficient direct evidence motive may be matter for consideration specially when the case is based on circumstantial evidence (51 DLR 103).

101.    Motive is a matter of speculation for what moves a person to take the life of another is within his special knowledge and does not constitute a necessary ingredient of the offence of murder,(1968 Cr.LJ 962).

102.    In the case of Noor Md. Vs. State 1999 MLD (Pakistan Monthly Law Digest) -60 held:

   “Eye witnesses were natural witnesses of the occurrence who had not only furnished convincing account of incident in details,  but had also withstood hard test of cross-examination successfully- No rancour had been ascribed to appellant-Relationship of eye witnesses with the deceased was not by itself sufficient to discredit their testimony – Record did not indicate any sign to support the idea of substitution of accused with real culprit, if any- ocular account was fully supported by medical evidence and attending circumstances-conviction of accused was upheld in circumstances.

103.    In the case of Md. Azeem Vs. State 1998 Pakistan Criminal Law Journal-175 held:

   Eye–witnesses who had no ill-will or motive against the accused had plausibly explained their presence at the spot and had corroborated their version given in their statements before the police-Ocular testimony was not in conflict with medical evidence-Prosecution had, thus, proved its case against accused beyond doubt- Conviction and sentence of death awarded to accused by trial Court were confirmed in circumstances

104.    Therefore, we find that the prosecution successfully proved the charges against the convicts by cogent, convincing, unimpeachable evidence and beyond all reasonable doubt.

105.    At the event of aforesaid situation, we also find support of our views  by the following decisions.

(1)   When there is enough material to prove the commission of offence of murder by the accused and that the evidence of eyewitnesses, though declared hostile, was reliable to some extent, the accused could be convicted for murder – Deepak v. State 1989 Cr.L.J. 143(MP).

(2)   If the evidence of the solitary witness to murder is corroborated by medical evidence and FIR is promptly filed and there is absence of any evidence of grave and sudden provocation, the accused can lawfully be convicted for murder- Radhakrishnan v State (1989)1 Crimes 721(Mad)(DB).

(3)   If there is consistent evidence of two eyewitnesses and FIR is lodged quickly naming the accused and there is corroborative medical evidence, the Supreme Court will not interfere to disturb the conviction- Bikkar v State(1989) 2 Crimes 1(SC).

(4)   If the evidence of the eyewitnesses is corroborated by the circumstantial evidence, the accused must be convicted for murder- Harish v State (1989) 2 Crimes 72 (Del) (DB).

(5)   Supreme Court will not interfere in appeal against order of conviction for murder passed by Sessions Judge and upheld by the High Court, when prosecution case was consistent with medical evidence and there was no delay in lodging F.I.R.- Amrik Singh V. State of Punjab 1981 Cr.L.J. 634; AIR 1981 SC 1171; 1981 SCC (Cr.) 252; 1981 Cr.L.J.(SC) 158.

(6)   If circumstantial evidence is absolutely conclusive and clinching, conviction for murder will not be set aside merely on ground that murder-spot and recovery of some ornaments were not proved- Murari Lal v State of U.P. 1980 Cr.L.J. 1408; AIR 1981 SC 363(1979) SCC 612.

(7)   If the circumstantial evidence against the accused in a murder case is firmly established and the circumstances unerringly point to the guilt of the accused and form a complete chain proving the guilt, the Supreme Court will not interfere with the concurrent findings except in case of grave injustice- Ashok V State 1989 Cr.L.J. 2124, AIR 1989 SC 1890; (1989)2 Crimes 423.

106.    On further exploration of the evidence on record, we shall consider the impact of the injuries caused by the accused Sumon and Babul by inflicting kiris blows. P.W. 6 Dr. Shahjalal who examined the deceased Khurshed on 11-05-2000 at 10:45 p.m. and issued a certificate (Exhbt.6) and found the following injuries:

1.      One incised injury size about 3" x ¼" x one surrounding Hemotoma size about 4" x4" in the right parietal occipital region.

2.      One incised injuries size about 3"x ½"  x skin in the right arm caused by sharp cutting weapon.

3.      Illinois size about 3" x 1" in the right out lower chest caused by blunt weapon. After admission the condition of the patient deteriorated further and the patient is referred to Chittagong Medical College hospital .

            Nature of injuries: Injury no.1 is grievous  in nature and injury nos. 2 and 3 are simple in nature.

            Time of injuries: Within four house from the time of occurrence.

107.    P.W. 20 Dr. Abdul Hye who held autopsy upon the cadaver of deceased Khurshed found the following injuries:

1.      One lacerated wound with stitches 11" size right parietal region of scalp and lacerated wound 2" mid parietal region with diffused haemorrhage at the side.

2.      Bruise (a) right arm middle part back side 1" x ¼", (b) right anterior chest 1" x ½ " below right nipple, (c) right wrist 2 " x ½ ", (d) back of chest 3" x ½ " below both scapula transverse.

Brain: subdural clotted blood ¼", thickness present over all lobes of the brain.

108.    It is very significant to point out that the doctor opined that the death was caused due to head injuries and with intracranial haemorrhage.

109.    On close scrutiny of the post mortem report we find that two injuries found at the parietal region but the scalp and other vertebra surround head were found intact along with other organs connected with this regard.

110.    We find that all the accused participated in the occurrence but the learned Judge convicted accused Sumon and Babul only under section 302 of the Penal Code.

111.    Section 34 of the Penal Code lays down the principle of joint liability for doing a criminal act. The essence of the liability is to be found in the existence of common intention animating the accused persons to the doing of a criminal act in furtherance of the common intention of them all. "Common intention" of several persons is to be inferred from their conduct, manner of doing the act and the attending circumstance. If one has intention to do any act and others share this intention, their intention becomes "common intention", of them all. And if the act is done in furtherance of the common intention, then all who participated in the act are equally liable for the result of the act. It is true that in this case, as the evidence shows, there was no pre-plan of the accused persons to kill Khorshyed; but their common intention to kill Khorshed developed on the spot when they all simultaneously fell upon the victim as soon as he appeared on the scene. It appears that in this case as soon as Khorshed ran towards the accused persons they intended to kill him. The fact that some of them had caused fatal injuries and others caused minor injuries is immaterial if the act was done in furtherance of their common intention. Section 34 of the Penal Code is clearly found to be applicable in this case.

112.    Now it is to be seen if the injuries of the deceased Khorshed are of such a nature as to constitute ‘murder’. The two injuries in the occipital region are the cause of death as the expert evidence of PW. 6 and PW-20 shows, while the other injuries are simple in nature. It is difficult to hold that these injuries were caused with the intention to cause the death, nor such injuries appear to be sufficient to cause death in the ordinary course of nature. But these injuries, though caused intentionally, are of such a nature that these are "likely to cause death". We do not think that this criminal act of causing the death falls into any of the four categories of criminal acts which constitute ‘murder’ as described in S. 300 of the Penal Code. We rather find that this criminal act was done with the intention of causing such injuries as are likely to cause death, as described in section 299 of the Penal Code. As such, it constitutes culpable homicide not amounting to murder, punishable under section 304 Part I of the Penal Code. With these regard reliance can be placed in the case of Sate Vs. Montu alias Nazrul Islam and other 44 DLR AD-287 and Joyaray vs. State of Tamil Nadu 1976 Crl. L.J. 1186(SC).

113.    Moreover, the impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. So, the submissions advanced by the learned Counsel for the defence in respect of merit of the case are not the correct exposition of law and facts. We have gone through the decisions referred by them. We are in respectful agreement with the principles enunciated therein but the facts leading to those case are quit e distinguishable to that of the instant case. However we have no hesitation to accept the later submissions regarding culpable homicidal not amounting to murder. On the contrary the submissions advanced by the learned Counsel for the prosecution regarding merit of the case prevails and appears to have a good deal of force.

114.    In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the impugned judgment and order of conviction and sentence suffers from no legal infirmity with regard to the merit which calls for no interference by this Court. Thus the appeal having no merit fails.

115.    In view of foregoing narrative;

A.          The Criminal Appeal no. 4012 of 2004 is dismissed with modification of sentence to the effect that convict appellant Shamsuddin Master is convicted under section 324 of the Penal Code and sentenced to suffer rigorous imprisonment for the period he had already undergone.

B.           The Criminal Appeal no. 4157 of 2004 is dismissed with modification of sentences to the effect that convict-appellants Siddique Ahmed, Iqbal Bahar, Abbas are convicted under section 323 of the Penal Code each and sentenced to suffer rigorous imprisonment for the period they had already undergone.

The convict appellant Babul is convicted under sections 304 Part I, 34 of the Penal Code and sentenced to suffer rigorous imprisonment for ten years and also to pay a fine of Tk.10,000/- in default to suffer rigorous imprisonment for one year more.

C.          The Criminal Appeal no. 4231 of 2004 is dismissed with modification of sentences to the effect that the convict-appellants Mosharrafuddin alias Bappu, Surat Alam, and Tomon are convicted under section 323 of the Penal Code each and sentenced to suffer rigorous imprisonment for the period they had already undergone.

D.           The  Criminal Appeal No. 4679 of 2004 is dismissed with modification of sentence to the effect that the convict appellant Sumon is convicted under sections 304 Part I, 34 of the Penal Code and sentenced to suffer rigorous imprisonment for ten