The State Vs. Sonowar Hossain Joarder, 2 LNJ (2013) 462

Case No: Death Reference No. 100 of 2006

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mr. Md. Bahar Uddin-Al-Razi,Mr. M.A. Mannan Mahon,Mr. M. Amirul Islam,,

Citation: 2 LNJ (2013) 462

Case Year: 2013

Appellant: The State

Respondent: Sonowar Hossain Joarder

Subject: Law of Evidence,

Delivery Date: 2012-05-16

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Md. Ziaul Karim, J.
And
A. N. M. Bashir Ullah, J.
 
Judgment
16.05.2012
  The State
Versus
Sonowar Hossain Joarder,
... Condemned-prisoner
Sonowar Hossain Joarder,
... Convict-appellant.
Versus
The State ….. Respondent.
Sonowar Hosain Joarder,
. . .Convict-appellant.
Versus
The State  . . .Respondent
 
 
Code of Criminal Procedure (V of 1908)
Section 154
Evidence Act (I of 1872)
Section 60
After initiating FIR, the informant is nobody excepting a mere witness. The narration in the FIR is not the first and last word, the truth is unfolded only in trial. The inconsistency in testimony when occurs due to deliberate suppression of fact favouring the accused only for the reason of compromise by the informant with the accused party, does not outright tarnish the prosecution case....(54)
 
Evidence Act (I of 1872)
Section 45
It appears that there are non-continuous ligature mark at the neck of deceased, which is the violent forms of death caused by strangulation. So in the present case the death of the deceased could not be attributed to hanging.
In the instant case the injuries, external and internal found by the doctors are consistent with their opinion that death was due to asphyxia as a result of strangulation which was ante-mortem and homicidal in nature. Moreover, the injuries present on the dead body of the deceased were not consistent with suicidal death due to hanging. The ligature mark on the neck was post-mortem. No symptom of suicidal hanging was present. According to the medico legal evidence it has been conclusively proved that the deceased Moina Khatun homicidally strangulated to death.…(62-64)
 
Evidence Act (I of 1872)
Section 106
It is well settled that when it is established that the husband and wife were residing in the same house at the relevant time, the husband is duty bound to explain the circumstances how his wife met her death and in absence of any explanation coming from the husband, irresistible presumption is that it is the husband who is responsible for her death.
On appraisal of the evidence on record it appears that the evidence of the prosecution witnesses regarding staying of the victim Moyna Khatun with her accused husband at the conjugal home of Radakhantapur are consistent, uniform and corroborative with one another. There is absolutely no reason to disbelieve those competent witnesses, therefore, the same are invulnerable to the credibility.     (67and 71)
 
Nari -o- Shishu Nirjatan Daman Ain (V of 2000)
Section 11 (Ka)
Penal Code (XLV of 1860)
Section 302
Evidence Act (1872)
Section 8
In order to attraction of section 11(Ka) of the Ain 2000, it is to be proved that death was caused in view of demand of dowry put forward from the side of husband or father, mother, guardian, or relation of the husband or any person for and on behalf of husband. From circumstantial evidence it has come to light that convict-appellant had caused the death of deceased and a clear case of murder had been brought home to the door of appellant. Judgment demonstrates that learned District and Sessions Judge has been, also, exercising the power and Jurisdiction of the Nari-o-Shishu Nirjatan Daman Tribunal. Fate of the convict-appellant and result of the case would have been the same whether it would have been tried either as a Nari-o-Shishu case by the Tribunal or as a Sessions case by learned Sessions Judge and if section 11(ka) of the Ain of 2000 was not attracted in respect of convict-appellant the offence of section 302 of the Penal Code could be very much pressed into service against the convict-appellant, and he could be conveniently tried and convicted for offence of section 302 of the Penal Code.

In the event of sending the case either to Tribunal or Court of Session for fresh trial proceeding would be protracted which cannot be allowed in the interest of true dispensation of criminal Justice. Since offence of murder punishable under section 302 of the Penal Code was carried to the door of convict-appellant he can be very much convicted for offence of section 302 of the Penal Code and as such we convert the offence of section 11(ka) of The Ain of 2000 to offence of section 302 of Penal Code. Convict-appellant, thus stands convicted for offence of section 302 of the Code. ...(73, 74, 78 and 86)
 
Code of Criminal Procedure (V of 1898)
Section 374
In respect of sentence of condemned prisoner, it appears that he was aged about 27 years when he was examined under section 342 of the Code. Record indicates that he is not a hard criminal and has been languishing in the condemned-cell for about six years with suffering of mental agony of death within the death-cell. Taking an account of aggravated and mitigating circumstances ends of justice will be met if the death sentence is altered to one of imprisonment for life. Condemned-prisoner thus, stands sentenced to imprisonment for life....(89)
 
Code of Criminal Procedure (V of 1898 )
Section 35A (1)
In view of the provisions laid in section 35A (1) of the Code of Criminal Procedure the total period the condemned-prisoner Sonowar Hossain Joarder has been in custody before conviction in connection with this offence shall be deducted from the period of imprisonment for life awarded to him....(90)
 
 
Sheikh Muksed Ali Vs. State, 10 MLR (AD) 27; Abdul Latif alias Babu and 6 others Vs. State, 44 DLR 492; Abdur Rahman Syed Vs. State, 44 DLR 556; Kalam Sheikh alias Kalam Sheikh  and others Vs. State, 54 DLR 502; Firoz Miah Vs. State, 51 DLR 37, Khorshed (Md) alias Khorshed Vs. State, 317; Abdul Motaleb Howlader Vs. State, 5 MLR (Ad) 362= 6 BLC (Ad)1, Elais Hossain Vs. State, 54 DLR (AD) 78; Golam Mortuga Vs. State, 2004 BLD (AD) 201=9 BLC (AD) 229; Gouranga Kumar Shaha Vs. State, 2 BLC (AD) 126, Dipak Kumar Sarker Vs. State, 40 DLR (AD) 139; State vs. Mofazzal Pramanik, 43 DLR (AD) 65; State Vs. Shafiqul Islam, 43 DLR (AD) 92; State Vs. Kalam Bepari, 43DLR (AD) 249; Shamsuddin Vs. State, 45DLR 587; Abdus Salam Vs. State, 1999 BLD 48, Abdus Sukur Miah Vs. State, 48 DLR 228, State Vs. Afazuddin Sikder, 50 DLR 121, Abul Kalam Mullah Vs. State, 51  DLR 544; Joynal Bhuiyan Vs. State, 52 DLR 179; Fazar Ali Vs. State, 5MLR 351=5 BLC 542, State Vs. Azizur Rahman Vs. State, 8 BLC(AD)172; State Vs. Aynal Huq, 9 MLR393=9 BLC 529, Gouranga Kumar Saha Vs. State, 2 BLC (AD) 126, Abdul Mutleb  Howlader Vs. State, 5 MLR (AD)= 6 BLC (AD)1; Dipok Kumar Sarker Vs. State, 40 DLR (AD)139; Sudhir Kumar Das Alias Khudi Vs. State, 60DLR 261; State Vs. Azam Raga, 62 DLR (AD) 406; Asiman Begum Vs. State; 51DLR (AD) 18; State Vs. Abul Kalam, 5 BLC 230, Shibu Pada  Acharjee Vs. State, 56 DLR 285 ref.
 
 
Mr. M. A. Mannan Mohan, D.A.G. with
Mr. Md. Osman Goni, A.A.G. and
Mr. Md. Ensan Uddin Sheikh, A.A.G.
…For the State

With
Criminal Appeal No. 4835 of 2006
Mr. M. Amirul Islam, Senior Advocate with
Mr. Kazi Md. Shahiqul Hassan, Advocate and
Mst. Sultana Nasrin, Advocate,
…. For the convict-appellant.

With
Jail Appeal No. 1044 of 2006
Mr. Md. Bahar Uddin Al-Razi, Advocate,
…. For the convict-appellant.

Death Reference No. 100 of 2006 with Criminal Appeal No. 4835 of 2006 with Jail Appeal No. 1044 of 2006
 
JUDGMENT
Syed Md. Ziaul Karim, J:
 
This reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal, Jhenaidah (briefly as Tribunal), for confirmation of death sentence of condemned-prisoner.
 
By the above appeals the appellant has challenged the legality and propriety of the judgment and order of conviction and sentence dated 02-11-2006 passed by learned Judge of Tribunal, convicting the appellant under Section 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain 2000(briefly as Ain 2000) and sentencing him to death by hanging and also to pay a fine of Tk.25,000/-.
 
This death reference and all the above appeals having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment.
 
The prosecution case as projected in the first information report (briefly as FIR) and unfurled at trial are that Moyna Khatun (since deceased) was married with accused Sonowar Hossain Joarder on 11-05-2003. After marriage she used to live in her conjugal home with her accused husband. During their wedlock one female child born. Her husband demanded Tk.1,00,000/- to her as dowry. Failing which her accused husband used to torture her physically and mentally. Finding no other alternative she gave Tk.80,000/- to her accused husband by selling her share from paternal property. Lastly on 04-03-2005 her accused husband after severe beating droved her out from the conjugal home for the cause of bringing rest dowry for Tk.20,000/-. Later, she took shelter to her paternal home. As she had no means to pay dowry, so she returned to conjugal home on 14-03-2005(briefly as P.O.) wherein on the night following her accused husband assaulted her indiscriminately causing her instantaneous death. On the following day i.e. on 15-03-2005 at 4:00 p.m. the incident was informed to her parent’s house. Later, her sister Parul Khatun (P.W.2) and her uncle Yead Ali(P.W.7) rushed to the P.O. and found the dead-body of her sister. The body-bore multiple injuries having blackish in nature. After holding Post mortem examination the dead-body was handed over to them and they buried her. It was believed that she was killed by her accused husband as she failed to meet the demand for dowry for her greedy husband. With these allegations her sister Parul Khatun (P.W.2) filed a petition of complaint before the Magistrate, Jhenaidah. Later, it was referred to the local Police Station wherein it was recorded as Jhenaidah Sadar Police Station case no. 08 dated 09-04-2005 corresponding to G.R. no. 78 of 2005.
 
Police after investigation submitted charge sheet under Section 11(ka) of the Ain, 2000 accusing the condemned-prisoner as accused and his other relations were let off from the charge-sheet.
 
Eventually, the accused was called upon to answer the charge under Section 11(ka) of the Ain 2000 which was read over to him who pleaded not guilty and claimed to be tried.
 
In course of trial the prosecution in all examined thirteen witnesses out of fourteen charge sheeted witnesses and the defence examined none.
 
After closer of the prosecution case, the accused was examined under section 342 of the Code and again he repeated his 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. It is divulged in defence that the deceased Moyna Khatun was suffering from abdominal pain and for such cause she committed suicide by hanging, but due to internal feud between them the accused was falsely implicated at the instance of his local rivals.
 
After trial the learned Judge of the Tribunal convicted the accused as aforesaid holding:
  1. It was proved by evidence that at the relevant time of occurrence the deceased was staying with her accused husband in the conjugal home;
  2. The post-mortem report clearly indicates that the deceased Moyna Khatun bore six injuries upon her body and death was caused due to asphyxia as a result of strangulation which was anti-mortem and homicidal in nature;
  3. The prosecution by uniform and consistent evidence succeeded to prove the case against the accused beyond all reasonable doubt.
The learned Deputy Attorney General appearing for the State supports the reference and submits that admittedly the deceased was the wife of accused and they were staying in the same conjugal home; so the husband is duty bound to explain the cause of death. He adds that the prosecution successfully proved the case but the accused failed to discharge his burden towards the cause of death of his wife. In support of his contentions he refers the case of Sheikh Muksed Ali Vs. The State 10 MLR(AD)-27 held:

Section 302- Husband’s liability in wife killing case-
When it is established that the husband and his deceased wife were residing in the same house at the time of the occurrence the husband owes an obligation to explain the circumstance under which his wife died. When the explanation so offered is proved false and the victim is found to have died due to injuries which were ante-mortem and homicidal in nature, the conviction and sentence of the convict husband is held by the apex court to be perfectly justified.

From the materials on record, particularly from the evidence of P.W.6, it is seen that death to the victim was done in a violent manner i.e. by throttling. P.W.6 in his evidence had clearly stated that the injuries noticed by him in the body of the deceased were ante-mortem and homicidal in nature. The deceased was the wife of the convict and was with him at the time of death. The convict tried to explain the death of the deceased by taking the plea that the deceased committed suicide. The explanation so offered was found not correct because of the evidence of PW.6 who stated that death of the victim was due to asphyxia resulting from the injuries noticed by him and that the injuries were ante-mortem and homicidal in nature.”
 
The learned Counsel lastly submits that after considering the evidence on record the learned Judge of the Tribunal rightly convicted the accused which calls for no interference by this Court.
 
The learned Counsels appearing for the convict-appellant by their common contentions seek to impeach the impugned judgment and order of conviction and sentence on five fold arguments:
 
Firstly:  The F.I.R. was lodged after long lapse of time which cast a doubt upon the prosecution case. In support of their contentions they refer the case of Abdul Latif alias Budu and 6 others Vs. State 44 DLR-492 held:

FIR- delay- The Court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was used for manipulation of the prosecution story.”
 
Secondly: The prosecution failed to prove the charge of demanding dowry against the appellant and all the witnesses categorically stated that the deceased died by committing suicide but the doctor most erroneously provided a different opinion which cannot be sustained. In support of their contentions they refer the case of Abdur Rahman Syed Vs. The State 44 DLR-556 held:

Section 45- Deposition of a doctor giving certain opinion formed by examining certain facts is not an absolute truth.”

They next refers the case of Kalu Sheikh alias Kalam Sheikh and others Vs. The State 54 DLR-502 held:

Section 45- The evidence of an expert cannot alone be treated and used to form basis to find an accused guilty and to form basis of his conviction independent of the substantive evidence of the PWs. in the case are required.”
 
Thirdly:  It is a case of no evidence inasmuchas the prosecution failed to prove the charge under section 11(Ka) of the Ain-2000. Therefore, the trial held by the Tribunal was without jurisdiction. In support of their contentions they refer the case of Osena Begum alias Babuler Ma and another Vs. The State 55 DLR-299 held:

Sections 10(1) & 14
Jurisdiction–The moment the Adalat finds no proof of existence of motive of dowry for any offence within the mischief of the Ain, it must take its hands off the case. In such situation the only course remains open for the Adalat would be to send the case record to the Sessions Judge for trial.”
 
Fourthly:  After inclusion of the offence laid down in section 11(ka) by the Ain 2000 the Jurisdiction of the Sessions Judge has been ousted, so the case should be sent back for re-trial. In support of their contentions they refer the case of Firoz Miah Vs. State 51 DLR-37 held:

By inclusion of the offence of the above ordinance in the schedule to the special Powers Act the jurisdiction of the Sessions Court has been ousted. Now, as the death is proved but not for demand of dowry, the present case is sent back to the Sessions Court for trial.”
 
Fifthly: The Court below without considering the materials on record most illegally convicted the accused which cannot be sustained.
        In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
        Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
        P.W.1 Dr. Sheikh Md. Aminul Haq deposed that on 17-03-2005 he was posted as pathologist in Jhenaidah Sadar hospital. On that day he, as a Chairman of medical board held autopsy upon the cadaver of Moyna Khatun identified by C-Newaz. Other two members were Dr. Dulal Chakraborty and Dr. Swapon Kundu. He found the following injuries:
 
তার দেহে থুতনীর এক ইঞ্চি নিচে গোলাকার রশির দাগ ছিল, (ফাঁসির চিহ্ন ligature mark) ছিল। Base আধা ইঞ্চি চওড়া। এর ঠিক নিচে আর একটা গোলাকার রশির  দাগ ছিল, বিস্তৃতি ছিল আধা ইঞ্চি চওড়া। মুখের উভয় পাশে এবং কপালে বেশী  কালো ছিল। ডান পাঁজরের মাঝামাঝি তিন  ইঞ্চি * এক ইঞ্চি জখম ছিল। ডান উর্রর  নীচের দিকে পিছনের দিকে তিন ইঞ্চি * এক ইঞ্চি আরও একটা জখম ছিল। বাম উরুর  পিছনে আরো একটা  কালো জখম ছিল, চার ইঞ্চি * এক ইঞ্চি  বিস্তৃত। মুখের পাশ ও কপাল ও চামড়ার  নীচে congested ছিল। মাথার ঝিল্লি ও মস্তিস্ক congested ছিল। শ্বাসনালী  উভয় ফুসফুস  congested পাওয়া গেছে।

শব-ব্যবচ্ছেদ করে নিম্নর্রপ জখম পাইঃ
মুখের পাশ,  কপাল, বাম কানের উপরে কপালের পিছনের অংশ সহ জখমে highly congested ছিল। ligature মার্ক গুলো অতিরিক্ত congested ছিল।
সর্বসম্মত মতামত দেই যে, শ্বাসরুদ্ধ করা হয়েছিল গলায় রশি পেঁচিয়ে, ময়নাকে মৃত্যুর পূর্বে ধরা হয় এবং এভাবে তার মৃতাূ হয়। এটা ছিল নরহত্যামূলক। ”
 
He proved the post-mortem as Exhbt. 1 and his signature on it 1/1. He further stated that deceased Moyna Khatun did not commit suicide rather she was strangulated to death.
 
In cross-examination he stated that the post mortem report was held with reference of U.D. case no. 21 of 2005; the inquest also held under the said reference; victim was strangulated to death, but not by committing suicide. He denied the suggestion that deceased Moyna Khatun committed suicide by hanging and his report is not correct.
 
P.W. 2 Parul Khatun is the informant and sister of deceased. She deposed that deceased Moyna Khatun was married with accused Sonowar. She died in her in-laws house at village Radakantapur P.S. sadar District-Jhenaidah. She committed suicide by hanging as she was suffering from abdominal pain; she informed the incident to the Court at the advise of one Ranjan who took her L.T.I. on a plain paper and she had no knowledge, what was stated in the papers; she identified the accused Sonowar on dock.
 
In cross-examination she stated that deceased Moyna was earlier married with one Bachuchu Miah’ but she was divorced; later the deceased married accused Sonowar at her own will; Sonowar never demanded dowry to her; they were found to led happy conjugal life; she found the dead-body of Moyna but did not see any injury therein; thereafter she sent Uzzal to the Police station; on the following day inquest was held; in their heridity there was a tendency of suicide; her father, uncle  and one cousin committed suicide by hanging; deceased Moyna left one daughter name Mamata.
 
P.W. 3 Abdul Goni Mondol aged about ninety years, a local witness. He deposed that deceased Moyna committed suicide by hanging at the house of accused Sonowar; he identified accused Sonowar on dock. He found no injury upon the cadaver of Moyna except one mark at the neck.

Cross-examination was declined.
 
P.W. 4 Dalimon Nessa a local witness; she deposed that deceased Moyna died by committing suicide; she identified the accused Sonowar on dock; she found no injury upon the cadaver of Moyna except one mark at the neck.

Cross-examination was declined.
 
P.W. 5 Abul Kalam is a local witness. He deposed that Police seized alamats in his presence and prepared seizure list (Exhbt. 3) and his signature on it Exhbt. 3/1.

In cross-examination he stated the Police seized it at the Jhenaidah Police Station.
 
P.W.6 Mozammel Haq alias Vadu is the uncle of deceased. He deposed that he heard about the death of Moyna at the house of accused Sonowar but he had no knowledge about such death; he also stood as one of the witness in the inquest report ( Exhbt. 2, 2/2}.

Cross-examination was declined.
 
P.W. 7 Yead Ali Sheikh is khalu of deceased; he deposed that Moyna died at the house of her accused husband Sonowar at village Radakantapur. He heard that she died by hanging; he identified the accused on dock.

In cross-examination he stated that he heard that Moyna committed suicide for her abdominal pain; accused Sonowar was not found in his house at that time.
 
P.W.8 Hasanuzzaman Hasan is the brother of deceased Moyna; he deposed that his sister died by abdominal pain at the house of her husband Sonowar; he identified accused Sonowar on dock.

In cross-examination he stated that Moyna was suffering from abdominal pain and heard that she committed suicide.
 
P.W.9 Abdul Quader is the cousin of deceased; he deposed that her (deceased) husband Sonowar hails from village Radakantapur P.S. and district Jhenaidah He heard that Moyna committed suicide by hanging; he identified accused Sonowar on dock.

In cross-examination he stated that Moyna was suffering from abdominal pain but she did not disclose such fact to the others.
 
P.W. 10, Sumi Khatun is the aunt of Moyna; she deposed that after two days of the occurrence she visited in-laws house of Moyna; she identified accused Sonowar on dock.
In cross-examination she stated that deceased Moyna was suffering from abdominal pain but she did not disclose about her suicide.
 
P.W.11 A.S.I. Robiul Islam deposed that on 16-03-2005 he was posted at the Jhenaidah Sadar Police Station; he investigated unnatural death case no. 21 of 2005; he found the dead-body of deceased Moyna Khatun at the house of accused Sonowar; he found injuries at the back, thigh, leg and ankle of deceased; also there were mark of violence with swelling injuries upon the person of deceased; then he sent the dead-body to the morgue for autopsy; before it he held inquest upon the cadaver of Moyna; he proved the same as Exhbt. 2, and his signature on it exhbt. 2/3. On 17-03-2005 he seized some wearing apparels of deceased (Mat. Exhbt. i-iii). He proved the seizure list and his signature ( Exhbts. 3, 3/2).
 
In cross-examination he stated that Uzzal Hossain was the informant of U.D. case who stated that her aunt deceased Moyna Khatun committed suicide for abdominal pain; during investigation some locals told that deceased was assaulted to death; he could not find any alamat of committing suicide; he denied the suggestion that he did not seize the alamats of deceased intentionally and did not prepare inquest report properly.
 
P.W.12 C- Newaz Ali deposed that he carried the dead-body to the morgue; he stood as one of the witness in seizure list. He found marks of injuries at the back of deceased.

In cross- examination he denied the suggestion that there was no mark of injuries upon the person of deceased Moyna Khatun.
 
P.W.13 S.I. Nasiruddin deposed that at the relevant time he was posted at the Jhenaidah Police Station; the case was entrusted to him for investigation; the case was recorded by S.I. Siddartha Sankor Dey (Exhbts. 4, 4/1, 4L, 4L /1,4L /2). Subsequently it was transformed into Nari-O-Shishu Nirjatan case.During investigation he visited the P.O., prepared sketch map and index (Exhbt. 5,5(L), recorded the statements of the witnesses and arrested the accused; thereafter submitted charge-sheet against the accused Sonowar.

In cross-examination he stated that the deceased Moyna Khatun was murdered on 14-03-2005 and the case was filed in the court and the FIR was recorded on 09-04-2005; he interrogated the informant Parul Khatun who supported the allegations made in the FIR; it was stated in FIR that Moyna assaulted to death by accused; he denied the suggestion that deceased Moyna committed suicide by hanging; being influenced by informant he submitted the charge-sheet.
 
These are all of the evidence on record adduced by the prosecution.

In course of trial the prosecution in all examined thirteen witnesses, of them P.W.1 held autopsy upon the cadaver and P.W. 2 sister of deceased. P.W. 3 and 4 are the locals. P.W. 6 is the uncle, P.W.7 is khalu, P.W. 8 is the brother, P.W.9 is the cousin of the deceased. P.W 10 is aunt of deceased, P.W.11, 12 and 13 are the Police personnel, of whom P.W. 13 submitted charge-sheet.
 
According to the prosecution the deceased Moyna Khatun was done to death for the cause of dowry. Such allegations were disowned by the defence. It’s definite case is that the deceased Moyna Khatun committed suicide by hanging
 
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 a wife killing case. In such case there would be no eye witness of the occurrence apart-from the inmates of the house, who may refuse to tell truth. The locals may not come forward to tell the truth. So, the prosecution is therefore, to rely on the circumstantial evidence.
 
For the cause of intimacy with the accused some witness may hide the truth of occurrence. P.W. 2, Parul Khatun sister of the deceased categorically narrated the entire episode in the petition of complaint to the effect that her sister deceased Moyna Khatun was done to death by her accused husband for the cause of dowry. Soon-after the occurrence she rushed to the scene and found the dead-body of her sister. The body-bore multiple injuries but during trial he deposed that her sister committed suicide but she admitted that at the time of occurrence her sister was residing with her accused husband  at her conjugal home at Radakantapur. Similarly PWs. 2-10 admitted that the deceased Moyna Khatun was found dead at the house of her conjugal home when she was staying with her accused husband. They, all identified the accused Sonowar on dock. A three membered medical board headed by P.W.1 Dr. Sk. Md. Aminul Haq, held autopsy upon the cadaver. They found the following injuries:

(1)        One circular ligature mark 1″ below the chin around the neck, base of the Sroove ½″ in wide, (2) One circular ligature mark, 1” below the above ligature mark around the neck, base of the Sroove ½″ in wide, (3) Face-both side, forehead unduly black, (4) One blackish area over right middle posterior maxilla ray line 3″ x 1″, (5) One blackish area over lower back and of right thigh 3″ x 1″, (6) One blackish area over back of left thigh middle area 4″ x 1″.

On dissection, congestion was found, in and around the injury nos. 3-6 and left temporal, region skin and soft tissues under and above below the both ligature marks (nos. 1 and 2) was found highly, congested, trachea-was found congested, the P.M. was done by a medical board vide memo. no. C.S. Shemi, 600, dated 17-03-2005 with the under signed doctors.
 
They opined that death was due to asphyxia as a result of strangulation which was ante mortem and homicidal in nature.
 
Moreso, PWs-11 and 12 testified that they found injuries upon the cadaver of Moina Khatun. PW-13 investigated the case and he stated that PW-2 informant Parul Khatun categorically narrated the allegations to him.
 
It is a matter of great regret that PWs. 2,3,4,6-10, by suppressing the truth testified that the deceased Moina Khatun committed suicide by hanging for the cause of abdominal pain. It is to be noted that even the full sister (PW-2) of the deceased forgetting the pain of losing her sister Moina khatun deliberately stated that her sister committed suicide. But they, this Court thinks, have failed to hush up the truth in any manner. Besides deviation by the informant from what has been narrated in the FIR for the reason of subsequent “ compromise” itself shall not tarnish  the entire prosecution. In this regard the following observations as made by this Court in the case of Khorshed (Md) alias Khorshed vs. The State 51 DLR-317 deserves to be mentioned here:

“First information report is not substantive evidence. It can be used to corroborate or contradict the maker thereof when the FIR is lodged within minimum possible time, such FIR story should not be disbelieved only because of any such result on the part of the informant.”
 
After initiating FIR, the informant is nobody excepting a mere witness. The narration in the FIR is not the first and last word, the truth is unfolded only in trial. The inconsistency in testimony when occurs due to deliberate suppression of fact favouring the accused only for the reason of compromise by the informant with the accused party, does not outright tarnish the prosecution case.
 
In the case before us we have already got that for the reason of “compromise” the informant and other PWs. have opted to save the accused by deliberately hiding the truth. PWs.2-10 including the informant (PW-2) have deliberately testified a different story favourable to defence asto cause of death of the unfortunate victim. Thus they cannot be expected to disclose the detail story of “ demand of dowry”. The motive of the murderous episode in Court. Besides demand of dowry is an event which generally takes place in absence of eye witnesses. No outsider and the near relative of the wife are expected to have direct knowledge about it. Normally such unethical demand is raised in conjugal home of the wife.
 
Let us now consider the medico- legal feature coupled with the injuries found on the neck and person of the victim.
 
According to MODI’s Text book of Medical Jurisprudence and Toxicology violent death resulting chiefly from asphyxia are hanging strangulation throttling, Suffocation and Drowning.
 
Hanging is a form of death produced by suspending the body with a continuous ligature mark round the neck. The mark is usually situated above the thyroid cartilage between the larynx and the chin and is directed obliquely upward following the line of the mandible (lower jaw) and interrupted at the back or may show an irregular impression of  a knot, reaching the mastoid processes behind the ears towards the point suspension. On the contrary strangulation is a violent form of death which results from constructing the neck by means of a non-continuous ligature mark or any other means without suspending the body. Such ligature mark usually situated lowdown in the neck below the thyroid cartilage and encircling the neck horizontally and completed.  
 
It is in page 192 of the Parikh’s Textbook of Medical Jurisprudence and Toxicology. Fifth Edition.

Whether death was due to hanging”
It is not uncommon in India to kill a victim and then suspend his body (post mortem hanging) from a tree or rafter to mislead the relatives and the police. In such a case, a ligature mart is usually found. Therefore, when a person is found dead and his body suspended, no opinion can be given from the ligature mark alone. Death could be attributed to hanging if one finds(1) a ligature mark with petechial hemorrhages and ecchymoses into or around its substance, (2) marks of dribbled saliva, (3) tear of the intima of carotid arteries with extravasation of blood within their walls, (4) congestion and hemorrhage in the lymph modes above and below the ligature mark, (5) fracture or dislocation of cervical vertebra and (6) absence of fatal injuries and poisoning:
 
It is in page 257 of the MODI’s Medical  Jurisprudence and Toxicology. Twenty Second Edition:

“ (1) Whether death was caused by hanging “In India, it is a common practice that to kill a victim and then to suspend the body from a tree or a rafter to avert suspicion. It is, therefore, necessary to find out if hanging was the cause of death in suspended body. The presence of ligature mark alone is not diagnostic of death from hanging, inasmuch as, being a purely cadaveric phenomenon it may be produced if a body has been suspended after death. Often a body is suspended after murder to simulate suicidal hanging. In such cases, a close examination of the direction of the friction marks on the fibers of the rope at the point of suspension, may indicate whether the body was pulled up by some one else or dropped down by its weight. Casper has illustrated by experiments that a mark similar to the one observed in persons hanged alive can be produced if suspended within two hours or even a longer period after death. Besides, a similar mark may also be produced by dragging a body along the ground with a cord passed round the neck soon after death. However, one can safely say that death was due to hanging, if, in addition to the cord mark, there was dribbling of saliva from the angle of mouth, ecchymosis and slight abrasions around the ligature mark, laceration of the intima of the carotid arteries with extravasation of blood within their walls and the post mortem sings of asphyxia, besides if there are no evidence of a struggle, scratches and nail marks, fatal injuries or poisoning.”
 
In the instant case besides the ligature mark other signs and symptoms of death like (1) One circular ligature mark 1″ below the chin around the neck, base of the sroove ½″ in wide, (2) One circular ligature mark 1″ below the above ligature mark around the neck, (3) Face–both side, forehead unduly black, (4) One blackish area over Rt. mid. Posterior maxilla-ray line 3″ x 1″, (5) One blackish area over lower back and of Rt. thigh 3″x 1″, (6) One blackish area over back of Lt. thigh mid area 4″ x 1″.
 
Therefore it appears that there are non-continuous ligature mark at the neck of deceased, which is the violent forms of death caused by strangulation. So in the present case the death of the deceased could not be attributed to hanging.
 
In the instant case the injuries, external and internal found by the doctors are consistent with their opinion that death was due to asphyxia as a result of strangulation which was ante-mortem and homicidal in nature. Moreover, the injuries present on the dead body of the deceased were not consistent with suicidal death due to hanging. The ligature mark on the neck was post-mortem. No symptom of suicidal hanging was present.
 
According to the medico legal evidence it has been conclusively proved that the deceased Moina Khatun homicidally strangulated to death.
 
Undisputedly the deceased, who was the wife of the accused, met with death in the conjugal home, while she was living with her accused husband. Presence of the accused in the house at the material time is not disputed. No plea of alibi has been taken. Moreover presence of the accused at the material time is supported by the evidence on record. Thus the death of the deceased was in the special knowledge of the accused. He knew how she met with death. Ordinarily an accused has no obligation to account for the death for which he is placed on trial. But in a case like the present one where the accused has special knowledge of the death of the deceased, under section 106 of the Evidence Act, he is under obligation to explain how the deceased died. If he fails to explain the death of the deceased or if his explanation is found false the irresistible inference would be that none besides him caused the death of the deceased. With this regard reliance may be placed in the cases of (1) Abdul Motaleb Howlader vs. State 5 MLR (AD) 362= 6 BLC(AD)1, (2) Elais Hossain vs. State, 54 DLR (AD) 78, (3) Golam Mortuza, vs. State, 2004 BLD (AD)201=9 BLC (AD)229, (4) Gouranga Kumar Shaha, vs. State 2 BLC (AD) 126, (5) Dipak Kumar Sarker, Vs. State 40 DLR (AD), 139, (6) State Vs. Mofazzal Pramanik, 43 DLR(AD)65, (7) State Vs. Shafiqul Islam, 43 DLR(AD) 92, (8) State Vs. Kalu Bepari, 43 DLR(AD) 249, (9) Shamsuddin vs. State, 45 DLR 587, (10) Abdus Salam vs. State, 1999 BLD 98, (11) Abdus Shukur Miah vs. State 48 DLR 228, (12) State vs. Afazuddin Sikder, 50 DLR 121, (13) Abul Kalam Molla vs. State 51 DLR 544, (14) Joynal Bhuiyan vs. State 52 DLR 179, (15) Fazar Ali vs. State, 5 MLR 351= 5 BLC 542, (16) State Vs. Azizur Rahman 2000 BLD 467= 5 BLC 405.
 
In the case of Abul Hossain Khan vs. State 8 BLC(AD) 172, it is held-

“The undenied position is that death of petitioner’s wife occurred in the house of the petitioner. It is not the case of the petitioner that he was away from the home while death occurred to his wife or that some miscreants whom he could not resist caused death of his wife. The petitioner tried to explain the cause of death by stating that the deceased committed suicide by hanging. The explanation offered as to how death occurred to the petitioner’s wife was found to be not correct because of the evidence of P.Ws. 12 and 13, the Medical Officers who held post-mortem examination of the dead-body of petitioner’s wife. The Medical Officers have stated that cause of death of the victim was homicidal and not suicidal. Since death to the wife was caused while she was residing in the house of her husband, the convict petitioner, is competent to say how death occurred to his wife and that the explanation which he offered having been found untrue, the conviction and sentence that was passed by the learned Sessions Judge has rightly been affirmed by the High Court Division.
 
The facts and circumstances of the above case are fully consistent with those of the case in our hand and as such the principle of law enunciated in that case is applicable in this case.
 
It is pertinent to point out that the accused has no obligation to account for the death for which he is placed for trial. The murder having taken place while the wife was with the custody of her husband, then the accused husband under Section 106 of the Evidence Act, is under obligation to explain how his wife had met with her death. In absence of any explanation coming from his side it seems, none other than the accused husband was responsible for causing death.
 
It is well settled that when it is established that the husband and wife were residing in the same house at the relevant time, the husband is duty bound to explain the circumstances how his wife met her death and in absence of any explanation coming form the husband, irresistible presumption is that it is the husband who is responsible for her death. In this regard reliance can be placed in the case of State Vs. Aynul Huq 9 MLR 393= 9 BLC 529. This view receives support in the case of Gouranga Kumar Saha vs. State 2 BLC (AD) 126. Abdul Mutaleb Howlader vs. State 5 MLR(AD)92= 6 BLC(AD)1, Dipok Kumar Sarkar vs. State reported in 40 DLR(AD) 139 and Sudhir Kumar Das alias Khudi Vs. State 60 DLR-261.
 
In the case State vs. Azam Reza 62 DLR(AD)  406 held:

“ Wife killing case- The deceased was the wife of the accused who met with death in the bed-room of the accused, while she was living with the accused. The presence of the accused in the house of the material time is not disputed rather is supported and proved by evidence on record and the death of the deceased was within the special knowledge of the accused.”
 
On appraisal of the evidence on record therefore, we find that the evidence of the prosecution witnesses regarding staying of the victim Moyna Khatun with her accused husband at the conjugal home of Radakhantapur are consistent, uniform and corroborative with each other. There is absolutely no reason to disbelieve those competent witnesses, therefore, the same are invulnerable to the credibility.
 
The convict-appellant stood charged and convicted for offence of section 11(ka) of the Ain 2000. Section 11(ka) enjoins that if the husband of a woman or father, mother, guardian, relation or any other person on behalf of the husband for dowry cause death to a woman or ventures to cause death or causes hurt or have a try to cause hurt that husband, father, mother, guardian, relation or the person (a) shall stand sentenced to death for causing death or shall stand sentenced to imprisonment for life for mounting endeavour to cause death and in both the counts he shall be, also, liable to pay fine and (b) shall be sentenced to imprisonment for life causing hurt or be sentenced to rigorous imprisonment for a period not more than 14(fourteen) years and less than 5(five) years for striving to cause hurt and in both counts shall be liable to fine.
 
In order to attraction 11(Ka) of the Ain 2000, it is to be proved that death was caused in view of demand of dowry put forward from the side of husband or father, mother, guardian, or relation of the husband or any person for and on behalf of husband.
 
From circumstantial evidence it has come to light that convict-appellant had caused the death of deceased and a clear case of murder had been brought home to the door of appellant.
This takes us to a legal debate of fundamental character, which is,
  1. Whether the convict-appellant can be graced with a verdict of acquittal when charge of section 11(ka) of the Ain of 2000 could not be pressed against him;
  2. When a clear case of murder has been established by circumstantial and medical evidence against him whether the convict-appellant can be convicted for the offence of murder punishable under section 302 of the Penal Code.
  3. Whether the case is required to be sent back to Tribunal or Court of sessions for fresh-trial.
Section 25 of The Ain of 2000 postulates that Tribunal defined section 2( Gha) shall be treated as Court of Sessions and Tribunal shall be able to exercise all powers of Sessions Court in holding trial of an offence.
 
Section 26 of The Ain 2000 enshrines that Tribunal so constituted shall be recorded as Nari-O-Shishu Nirjatan Daman Tribunal and shall be constituted with one Judge and Judge of Tribunal shall be appointed from amongst District and Sessions Judge to the Government, if necessary, shall appoint any District and Sessions Judge as Tribunal Judge in addition to his charge. Section 20 further enjoins that under the section Additional District and Sessions Judge shall, Also, stand included as District and Sessions Judge.
 
From the above it becomes manifestly clear that a Tribunal trying a case under the Ain of 2000 is, also, a Court of District and Sessions Judge. When a Judge sits in a Tribunal or Special Tribunal Case holding trial of an offence under a Statute or Special Statute is a Tribunal or Special Tribunal and a Judge when sits in Sessions Case trying an offence punishable under Penal sections of Penal Code sits as Sessions Judge.
 
The case in hand, although, tried by a Tribunal constituted under The Ain of 2000 that Tribunal was, also, the court of Sessions. In the judgment, learned Judge was described as District and Sessions Judge, Jhenaidah as well as Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Jhenaidah. Judgment demonstrates that learned District and Sessions Judge has been, also, exercising the power and Jurisdiction of the Nari-O-Shishu Nirjatan Daman Tribunal. Fate of the convict-appellant and result of the case would have been the same whether it would have been tried either as a Nari-O-Shishu case by the Tribunal or as a sessions case by learned Sessions Judge and if section 11(ka) of the Ain of 2000 was not attracted in respect of convict-appellant the offence of section 302 the Penal Code could be very much pressed into service against the convict-appellant, and he could be conveniently tried and convicted for offence of section 302 of the Penal Code.
 
In the case of Asiman Begum vs. The State 51 DLR(AD)-18 held:

When it is found after a full trial that there was a mis-trial or trial without jurisdiction, the Court of appeal before directing a fresh trial by an appropriate Court should also see whether such direction should at all be given in the facts and circumstances of a particular case.
It is found that there was no legal evidence to support the conviction then in that case it would be wholly wrong to direct a retrial because it would then be a useless exercise. Further, the prosecution should not be given a chance to fill up its lacuna by bringing new evidence which it did not or could not produce in the first trial.”
 
As regards remand of the case, we may profitably refer the above decision in the case of Asiman Begum vs. state reported in 51 DLR(AD) 18 wherein it has been decided that the remand order for trial of the case as a Sessions case in the particular circumstances of the case will be a mere formality because Nari-O-Shishu Case no.2 of 1996, although tried under Bishes Bidhan Ain, 1995 by a Bishesh Adalat, the presiding officer was no other than the Sessions Judge himself and, as such, it was unlikely that the result would be anything different if the case was tried by him as a Sessions case. Appellate Division, thus sent the appeal to High Court Division to consider the case on merit and to pass whatever order or orders it might think appropriate in the interest of justice.
 
In State vs. Abul Kalam , 5 BLC 230 one Abul Kalam stood convicted for offence of section 10(1) of The Ain of 1995 for murder of his wife for dowry by learned Sessions Judge and Special Tribunal no.1, Noakhali. Consequential sentence was death. Condemned-prisoner preferred Jail appeal and, also, regular Criminal appeal before High Court Division. There had been, also, Death Reference. A Division Bench of High Court Division heard Death Reference, Jail appeal and Criminal appeal together and disposed of those by a common Judgment. High Court Division found that there had not been cogent evidence asto committing murder for dowry and no evidence had been led as to the real cause of killing of wife by husband and held that the case did not come under section 10(1) of The Ain of 1995 and the case comes under section 302 of the Penal Code. The High Court Division further held that Sessions Judge, in fact, was the Special Tribunal no.1 who tired the case and for no fault of the accused the case had been tried as Special Tribunal case. High Court Division instead of sending the case back for fresh trial under Section 302 of The Penal Code by learned Sessions Judge disposed of the appeal. High Court Division altered conviction from section 10(1) of The Ain,1995 to one under section 302 of the Penal Code. Sentence of death was altered to one of imprisonment for life. The High Court Division in rendering decision took into account the case of Asiman Begum vs. State (Supra).
 
In the case of Shibu Pada Acharjee vs. State reported in 56 DLR 285, accused-appellant was convicted for offence of section 4© of The  Ordinance of 1983 for commission of rape upon victim Ratna Rani but ingredients of section 4© of the Ordinance of 1983 could not be brought home to accused-appellant. In the case is had been laid down:

“ To take the prosecution out of Court on a question of technicality, will be a travesity of Justice and technicality must bend to cause of justice inasmuch as ends of law is Justice.”
Accused-appellant can be fastened for offence of section 376 of the Penal Code and conviction under section 4(c) of the Ordinance of 1983 can be altered to one of section 376 of The Penal Code.
 
In the said case conviction under section 4(c) of The Ordinance of 1983 was altered to one of section 376 of the Penal Code.
 
In the case of The State vs. Mahbur Sheikh alias Mahabur ILNJ 139 i.e. I The Lawyers & Jurist 139 held:

“Since offence of murder punishable under section 302 of Penal Code was carried to the door of convict-appellant he can be very much convicted for offence of Section 302 of the Penal Code and as such we convert the offence of section 11(Ka) of the Ain 2000 to offence  of section 302 of the Penal Code. Convict-appellant, thus stands convicted for offence of section 302 of the Code.
 
In the event of sending the case either to Tribunal or Court of Sessions for fresh trial proceeding would be protracted which cannot be allowed in the interest of true dispensation of criminal Justice.
 
Since offence of murder punishable under section 302 of the Penal Code was carried to the door of convict-appellant he can be very much convicted for offence of section 302 of the Penal Code and as such we convert the offence of section 11(ka) of The Ain of 2000 to offence of section 302 of Penal Code. Convict-appellant, thus stands convicted for offence of section 302 of the Code.
 
Legal debate stands solved in the following terms and language:
  1. Convict-appellant Sonowar Hossain Joarder cannot be graced with a verdict of acquittal;
  2. Convict-appellant can be convicted for the offence punishable under section 302 of the Penal Code.
  3. Case is not required to be sent either to Tribunal or Court of Sessions for fresh-trial.
 
With regard to the sentence imposed upon convict-appellant we are of the view that sentencing discretion on the part of a Judge is the most difficult task to perform. There is no system or procedure in the Criminal Justice administration method or Rule to exercise such discretion. In sentencing process, two important factors come out- which shall shape appropriate sentence (i) Aggravating factor and (ii) Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that Justice has been done and court responded to the society’s cry for Justice. Under section 302 of the Code, though a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal Justice.
 
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 under section 11(ka) of the Ain 2000 suffers from legal infirmities, but the same will be proper under section 302 of the Penal Code. In respect of sentence of condemned prisoner Sonowar Hossain Joarder, we hold that he was aged about 27 years when he was examined under section 342 of the Code. Record indicates that he is not a hard criminal and has been languishing in the condemned-cell for about six years with suffering of mental agony of death within the death-cell. Taking an account of aggravated and mitigating circumstances ends of justice will be met if the death sentence is altered to one of imprisonment for life. Condemned-prisoner Sonowar Hossain Joarder thus, stands sentenced to imprisonment for life.
 
In the result:-

(a)    Death reference no. 100 of 2006 is rejected;
(b)    The impugned judgment and order of conviction and sentence dated 02-11-2006 passed by the learned Judge of Nari-O-Shishu Nirjatan Damon Tribunal, Jhenaidah, in Nari-O-Shishu Tribunal case no.201 of 2005 is modified to the effect that the condemned-prisoner Sonowar Hossain Joarder is convicted under Section 302 of the Penal Code and sentenced to suffer imprisonment for life and also to pay a fine of Tk.2000/- in default to suffer rigorous imprisonment for one month more.
        In view of the provisions laid in section 35A(1) of the Code of Criminal Procedure the total period the condemned-prisoner Sonowar Hossain Joarder have been in custody before conviction in connection with this offence shall be deducted from the period of imprisonment for life awarded to him.
(c)  Accordingly, Criminal appeal no. 4835 of 2006 and Jail appeal no. 1044 of 2006 are allowed in part with modification of conviction and sentence in above terms.
 
The Office is directed to send down the records at once.
 
Ed.