Sumon Miah @ Suman and others Vs. The State, 3 LNJ (2014) 783

Case No: CRIMINAL APPEAL NO. 5108 OF 2005

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mr. Moinul Hosein,Mr. Manjur Kadir,,

Citation: 3 LNJ (2014) 783

Case Year: 2014

Appellant: Sumon Miah @ Suman and others

Respondent: The State

Subject: Law of Evidence,

Delivery Date: 2011-08-18


HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Syed Md. Ziaul Karim, J
And
Abdur Rob, J.

Judgment on
18.08.2011
  Sumon Miah alias Suman and others
 ...Convict-appellants
Versus
The State
. . . Respondent.
 

Evidence Act (I of 1872)
Section 3
Belated discloser of material facts is vulnerable to the credibility and as such the same are incompatible aswellas incredible....(39)
 
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Sections 2(Kha) and 7
Evidence Act (I of 1872)
Section 8
There is no corroborative evidence in respect of taking the victim অন্যত্র as occurred in section 2(M) of the Ain-2000. Where the evidence of the prosecutrix forms the only witness on which the Court is to act upon. It is absolutely necessary for the ends of justice that at least victim’s statement must be inconformity with the probability and in a case like this the evidence of solitary witness calls for corroboration as a rule of prudence but such corroboration is absent in this case. So it is very unsafe to convict the accused, relying on the evidence of PW-2. Moreso, there is no evidence that the accused had exclusive control and possession over the victim for a certain period. So, such allegations will not come within the ambit of section 2(M) of the Ain-2000....(42)
 
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Section 7
There is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime of abduction (অপহরণ). Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt. . . . (44)

Asadur Rahman alias Asad vs. The State, 15 DLR 290; Abdur Rouf Moral and others Vs. The State, 7 BLT 310; Nowabul Alam and others Vs. The State 15 BLD (AD) 55 ref.
 
Mr. Moinul Hosein, Senior Advocate with
Mr. Manjur Kadir, Advocate,
. . . For the convict appellants.

Mr. M. A. Mannan Mahon, D.A.G. with
Mr. Md. Mahbub Ul Alam,A.A.G.
Dr. Md. Bashir Ullah, A.A.G.
Mr. Md. Osman Goni, A.A.G.
. . . For the State

Criminal Appeal No. 5108 of 2005
 
JUDGMENT
Syed Md. Ziaul Karim, J:
 
By this appeal, the convict-appellants namely 1. Sumon Meah alias Sumon, 2. Shohel Meah alias Sohel Rana, 3. Api Meah have challenged the legality and propriety of the judgment and order of conviction and sentence dated 31-10-2005 passed by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal no.1, Bogra, in Nari-O-Shishu Case no. 1201 of 2002 convicting the appellants under Section 7 of the Nari-O-Shishu Nirjatan Damon Ain, 2000(briefly as Ain-2000) and sentencing each of them to suffer imprisonment for life and also to pay a fine of Tk. 5,000/- in default to suffer rigorous imprisonment for two years more.

The prosecution case as projected in the first information report and unfurled at trial are that Most. Nasrin Sultana Eti (P.W. 2) aged about 13 years was a student of Class VIII in Kappor High School, on 16-04-2001 on the way to her home from private tutor, at about 11.00 a.m. while she reached near Shallow machine room of Badsha Meah, then suddenly all the accused being armed with dagger emerged from the room and resisted her. Accused Sumon threatened her by pointing dagger and accused Api wrapped her mouth by napkin and all the accused dragged her inside the said room. Having had heard the screaming the locals namely Abdus Salam, Vikku Meah (P.W.4), Md. Hamidul Islam (P.W.3), Abdul Mollah (P.W.5), Sabdul Mollah (P.W.6) rushed to the scene, sensing danger the accused departed from there. The locals heard about the incident from the victim. Then they took the victim in her home. The prosecution was launched by lodging a first information report (briefly as FIR) by the father of the victim Md. Tofazzal Hossain (P.W.1) as informant which was recorded as Sonatola Police Station Case no.15 dated 19-04-2001 corresponding to G.R. no.48 of 2001.

The Police after investigation submitted charge sheet under Sections 7, 30 of the Ain-2000 accusing the appellants.

Eventually the appellants were called upon to answer the charge under Section 7 of the Ain-2000 which was read over to them who pleaded not guilty and claimed to be tried.

In course of trial the prosecution in all, examined 8 witnesses out of 10 charge sheeted witnesses.

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

The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It is divulged in defence that due to internal feud they were falsely implicated out of vengence for long standing land disputes and civil litigations.

After trial the learned Judge of the Court below convicted the accused as aforesaid.

The learned Advocate appearing for the appellants seeks to impeach the impugned judgment and order of conviction and sentence on three fold arguments.

Firstly, there is no eye witness of the occurrence.

Secondly, the important witnesses like local Chairman, Abdul Majid, Badsha Meah, private tutor and other teachers of the school were not examined by the prosecution which cast a serious doubt upon the prosecution case.

Thirdly, the alleged offence, even if it is accepted as true but denied do not constitute the offence of abduction (AfqlZ) and as such does not come within the purview of section 7 of the Ain-2000. Moreover, the accused had no control and possession over the victim for certain period. In support of his contentions the learned Counsel refers the case of Kazi Nurun Nabi Parag and others Vs. State 15 BLC-518 held:
Be that as it may when no evidence has been adduced in Court about kidnapping of the victim or her recovery from the possession of the accused appellant Kazi Nurun Nabi alias Parag vis-à-vis when there is no evidence about the commission of rape upon the victim, we are constrained to hold the view that the prosecution has miserably failed to prove the charge leveled against the appellants in any way and the trial Court convicted the appellants on mere surmise and conjectures and thus the impugned judgment and order is liable to be set aside we find merit in this appeals.”

The learned Counsel lastly submits that the judgment and order of conviction and sentence based on misreading and non consideration of the evidence on record which cannot be sustained in the eye of law.
The learned Deputy Attorney General appearing for the State opposes the appeal and submits that the learned Judge of the Court below after considering the evidence on record rightly found the accused guilty under Ain-2000. He adds that the prosecution is not bound to produce all the witnesses named in the charge sheet to prove the charge. In support of his contentions the learned Counsel refers the case of Md. Shakhowat Hossain Vs. State 25 BLD-75 held:
Prosecution is not bound to produce all the witnesses said to have observed the occurrence. Material witnesses considered necessary by the prosecution for unfolding prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses.”

The learned Counsel lastly submits that the evidence of all the prosecution witnesses are uniform and consistant. So the conviction and sentence was rightly awarded to them which calls for no interference by this Court.

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

Now the question calls for consideration, is, whether the impugned judgment and order of conviction and sentence can be sustained in the eye of law.

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

P.W.1 Md. Tafazzal Hossaion, is the informant and father of the victim and he was the teacher in Mahagora Primary School. He deposed that on 16-04-2001 at 11:00 a.m. his daughter Nasrin Sultana (Eti) aged about 13 years, student of Class VIII on the way to home from Private tutor, while she reached on the Dharmaqul Pugulia road adjacent to the Shallow Machine room of Badsha Meah (briefly as P.O.) then the accused being armed with dagger resisted her; accused Sumon pointed a dagger and accused Api Meah wrapped her mouth by a napkin. Then they forcibly dragged her inside the said machine room. On hearing screaming locals namely Abdus Salam, Vikku Meah, Hamidul Islam, Abdul Molla, Sabdul Molla and others rushed to the scene and the accused departed from there. They heard the occurrence from her and took her in home. Having had heard the incident on the following day he went to the Police Station for lodging FIR but on the way he met with local Chairman Abdul Majid who assured him that he will sent the FIR to the Police Station but subsequently with no effect. Then on 19-04-2001 he lodged FIR which he proved it as Exhbt. 1 and his signature on it Exhbt. 1/1. He identified the accused on dock.

In cross-examination he stated that accused Sumon and Sohag are full brothers and accused Api was their machine operator. He did not disclose the occurrence to any one except Police before lodging the FIR ; Victim’s school starts at 11-00 a.m. and father of the accused Sumon was also a teacher of a Primary School and he was his distant relation. He denied the suggestion that on the date of occurrence his daughter did not go to private tutor; no such occurrence took place and for the long standing land disputes the accused were implicated in this case.

P.W. 2, Most. Nasrin Sultana Eti, victim of this case. She deposed that on 16-04-2001 at 11:00 a.m. on the way to her home from Private tutor and while she reached at P.O. then the accused Sumon, Sohel, Api emerged from Shallow machine room and resisted her; accused Sumon pointed a dagger and accused Api wrapped her by napkin and dragged her inside the room. On hearing screaming locals namely Hamidul, Vikku, Samad, Abdul, Sabdul and others rushed to the scene and accused departed from there, to whom she narrated the occurrence. She identified the accused on dock.

In cross-examination she stated that she used to go to school alone. Machine room was situated about 15/20 cubits away from the road. She did not take any medical treatment. She denied the suggestion that no occurrence took place as she alleged and for the cause of land litigations the accused were falsely implicated.

P.W. 3, Md. Hamidul Islam, deposed that at the relevant time he was in the paddy field; hearing the screaming he rushed to the Shallow machine room and found three persons were running away. Meanwhile Abdul and Sabdul also happened there. The victim narrated the occurrence to them to the effect that the accused tried to rape her and during scuffle the napkin was displaced and she screamed. He identified the accused on dock.

In cross-examination he stated that on the following day he made statement to the Police. He denied the suggestion that no such occurrence took place and he was deposing falsely.

P.W.4 Vikku Meah deposed that on the date of occurrence he was working in the paddy field, on hearing screaming he rushed to the Shallow machine room and found the victim was weeping and her wearing apparels were dusty. The victim narrated the occurrence to him. He identified the accused on dock.

In cross-examination he denied the suggestion that what he has stated in the Court was not stated to the Police.

P.W. 5, Abdul Molla, deposed that at the time of occurrence he was cutting grass. On hearing the screaming he rushed to the Shallow machine room wherefrom the accused were departed. He found witness Sabdul and Vikku there.  The victim was weeping out side the room and her wearing apparels were full of dust. The victim narrated the occurrence to them. Some wearing apparels were seized (Exhbts. 2, 2/1).

In cross-examination he denied the suggestion that what he has stated in the Court was not stated to I.O. and deposing falsely.

P.W.6, Sabdul Molla deposed that on 16-04-2001 at 11:00 a.m. he was cutting grass in the field. On hearing the screaming he rushed to the machine room and found the accused Sumon, Sohel and Api were running away. He also found Hamidul, Vikku and Abdul inside the machine room. He found that the victim was weeping out side the room and her wearing apparels were full of dust.

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

P.W.7 Md. Uzzal Hossain, the local witness. He deposed that in his presence Police seized some wearing apparels and prepared seizure list (Exhbts. 2, and 2/2).

In cross-examination he denied the suggestion that what he has stated in the Court was not stated to I.O. and deposing falsely.

P.W. 8 S.I. Md. Abdul Quadir deposed that on 19-04-2001 he was attached with Sonotala Police Station. He filled up the form of F.I.R. (Exhbt. 3). He took up the investigation, visited P.O., prepared sketch map and index (Exhbts. 4 and 5). He recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure. Thereafter he submitted charge sheet accusing the accused.

In cross-examination he stated that he had shown ‘B’ in a sketch map, which was the Shallow machine room of Badsha Meah, 4/5  cubits away from the P.O. He recorded the statement of the victim under section 161 Cr.P.C. but he did not reduce it in writing. P.W.3 Md. Hamidul Islam and P.W.4 Vikku Meah did not state to him that the victim was weeping and her wearing apparels were full of dust. P.W. 5 Abdul Molla, did not state to him that at the time of occurrence Abdus Samad and others happened at the scene ; accused were hiding inside the Shallow machine room and they resisted the victim and Sumon pointed with a dagger and the accused departed from scene. P.W. 6 Sabdul Molla, did not state to him that the victim was weeping out of fear. He denied the suggestion that he did not held investigation properly and deposing falsely.

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

At the very outset and for the conve-nience of understanding Section 2(M) and Section 7 of the Ain-2000 read as hereunder:
Section 2(M) অপহরণ অর্থ বলপ্র­য়াগ বা প্রলুব্ধ করিয়া বা ফুসলাহ~য়া বা ভুল বুঝাইয়া  বা ভীতি প্রদর্শন করিয়া কোন সহান হই­ত কোন ব্যও্রি­ক অন্যত্র যাই­ত বাধ্য করা
Section 7- নারী ও শিশু অপহর­ণের  শাস্তি - যদি  কোন ব্যও্রি ধারা (৫) এ উল্লিখিত কোন অপরাধ সংঘট­নের উ­দ্দশ্যে ব্যতীত অন্য কোন উদ্দ­­শ্য কোন নারী বা শিশুকে অপহরণ ক­রেন, তাহা হই­­ল উক্ত ব্যক্তি যাবজ্জীবন কারাদ­­ন্ড  বা অন্যুন চৌদ্দ বৎসর সংশ্রম কারাদ­­ন্ড দন্ডনীয় হই­বেন এবং ইহার অতিরিক্ত  অর্থদ­ন্ড ও দন্ডনীয়  হবেন

The term “abduction” as it appears in Black’s Law Dictionary runs in the following manner:
Abduction(ab-dak-shon), 1. The act of leading someone away by force or fraudulent persuasion. Some jurisdictions have various elements added to this basic definition, such as that the abductor must have the intent to marry or defile the person, that the abductee must be an underage child, or that the abductor must have the intent to subject the abductee to concubinage or prostitution. 2. Archaic. At common law, the crime of taking away a female person without her consent by use of persuasion, fraud , or violence, for the purpose of marriage, prostitution, or illicit sex.- abduct, vb. abductor, n.- abductee, n. kidnapping.
“There was no such crime as abduction known to the English common law, but a statute passed a few years before Columbus discovered America, created a felony which is the forerunner of all the present statutes on abduction “ Rollin M. Perkins & Ronald N. Boyee Criminal Law 183 (3rd ed. 1982).”

In course of trial the prosecution in all examined 8 witnesses, of them P.W.1, is the informant and father of the victim. P.W. 2, is the victim herself. P.W.1, 3-6 heard the occurrence from victim (PW 2) and P.W.7 is the local seizure list witness. P.W. 8 is the investigating officer(I.O.)

Therefore the prosecution case absolutely rest on the evidence of victim P.W. 2, Nasrin Sultana Eti. P.Ws.3-6 were examined to corroborate her in respect of alleged occurrence. P.W.2, categorically stated that on 16-04-2001 at 11:00 a.m. on the way to her home from private tutor and when she reached on the road near to the shallow machine room of Badsha Meah, then the accused resisted her and on the point of dagger all the accused dragged her inside the machine room. On hearing screaming the locals namely Hamid, Vikku, Samad, Abdul, Sabdul rushed to the scene and accused departed from there.

P.Ws. 3-6 in their evidence categorically stated that they found the victim on the road and the victim narrated the occurrence to them. P.W. 8 investigating officer who recorded the statements of those witnesses under Section 161 of the Code of Criminal Procedure. They did not state the material facts as narrated by the victim to him but in their evidence before Court they stated that they found the victim was weeping and her wearing apparels were full of dust but such facts were not stated to PW. 8. Moreso, P.W. 8 stated that P.W.6 did not state to him regarding pointing of dagger by accused Sumon and dragged the victim inside the machine room. So these are the material omissions on the part of the above witnesses. P.W. 1 although is not the eye witness to the occurrence but he categorically stated that before lodging FIR he disclosed the occurrence to none except Police.

After close scrutiny of their evidence we find that at the earliest point of time those witnesses did not disclose the material facts either to the Investigating Officer or to the locals which makes the prosecution case shaky. It is well settled that when an eye witness to the occurrence that took place at the morning does not disclose the names of the assailants he allegedly recognized and other material facts to the witnesses who came to the scene immediately after the occurrence was over or at the earliest opportunity and there is no justifiable reason for nondisclosure of the material facts, belated discloser of material facts renders their evidence/ testimony doubtful. In such a case the Court should reasonably infer that the story of recognition of the assailants was a subsequent embellishment. With this regard reliance is being placed in the case of Asadur Rahman alias Asad vs. The State 15 DLR 290. Similar view was taken in the case of Abdur Rouf Moral and others Vs. The State 7 BLT 310.

It is also well settled that when an eye witness witnessed the occurrence, accused person departed from the scene and many people assembled at the place of occurrence followed by officials. It is expected that the eye witnesses will name the accused persons not only to their own kith and kin but also to uninvolved persons, including high officials. Belated discloser of the names of the assailants make their evidence doubtful. With this regard reliance is being placed in the case of Nowabul Alam and others Vs. The State 15 BLD (AD) 55. Therefore we hold that their belated discloser of material facts is vulnerable to the credibility and as such the same are incompatible aswellas incredible.

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.

It is pertinent to point that the occurrence took place on Dharmakul Puglia road within Sonatola Police Station adjacent to the Shallow machine room of Badsha Meah but except the evidence of P.W. 2 there is no other evidence that she was taken inside the room as the other locals witnesses namely P.Ws. 3-6 found the victim on the road. Therefore, we find that there is no corroborative evidence in respect of taking the victim অন্যত্র as occurred in section 2(M) of the Ain-2000. Where the evidence of the prosecutrix forms the only witness on which the Court is to act upon. It is absolutely necessary for the ends of justice that at least victim’s statement must be inconformity with the probability and in a case like this the evidence of solitary witness calls for corroboration as a rule of prudence but such corroboration is absent in this case. So it is very unsafe to convict the accused, relying on the evidence of PW-2. Moreso, there is no evidence that the accused had exclusive control and possession over the victim for a certain period. So, such allegations will not come within the ambit of section 2(M) of the Ain-2000.

It further appears that local Chairman Abdul Majid, who took a very significant step in respect of lodging FIR and subsequently he tried to dissolve the matter in issue by amicable settlement, other locals namely Badsha Meah, private tutor and other teachers of the school who were acquainted with the facts were not examined by the prosecution to corroborate the victim. So the legal presumption would be had they been examined they would not have supported the prosecution case.

On close scrutiny of the evidence on record we find that the evidence all the prosecution witnesses suffered from glaring contradictions inconsistencies and infirmities. So the same are vulnerable to the credibility and it is very difficulty to rely on their testimony. Moreover, it is the definite case of the prosecution that there was an internal feud between the parties and when there is a background of enmity and the witnesses are chance witnesses and not natural witnesses and further natural and independent witness were not examined, it is unsafe to rely on the evidence of chance witnesses to make a nexus between the accused and the crime. So we hold that there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime of abduction (অপহরণ). Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.

Moreover, the impugned judgment and order of conviction and sentence in its entirety is not well founded in the facts and circumst-ances of the case. So the ground urged and contentions advanced by the learned Counsel for the State are not the correct exposition of law, however we have gone through the decision reported in 25 DLR-75 as referred by him. We are in respectful agreement with the principles enunciated therein but the facts leading to that case is quite distinguishable to that of the instant case. Therefore, we are unable to accept his submissions. On the contrary the legal pleas taken by the defence prevails and appears to have a good deal of force.

In the light of discussions made above we are of the view that the prosecution measurably failed to prove the charge against the appellants beyond all reasonable doubt. So, the impugned judgment and order of conviction and sentence suffers from legal infirmities, which calls for interference by this Court. Thus the appeal having merit succeeds.

In the result the appeal is allowed. The impugned judgment and order of conviction and sentence dated 31-10-2005 passed by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal no. 1, Bogra, in Nari-O-Shishu Nirjatan Case no. 1201 of 2002 is hereby set aside. The appellants are acquitted from the charge leveled against them. The appellants who are on bail be discharged from their respective bail bond.

The office is directed to send down the records at once.

Ed.