The State v. Md. Akinur Rahman @ Akibul

Case No: CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 459 OF 2011

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Biswajit Deb Nath,Fazlul Haque Khan Farid,,

Case Year: 2014

Appellant: The State

Respondent: Md. Akinur Rahman @ Akibul

Subject: Death Reference,

Delivery Date: 2014-07-17

IN THE SUPREME COURT OF BANGLADESH

Appellate Division

 

PRESENT

 Madam Justice Nazmun Ara Sultana  

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali

 

CRIMINAL  PETITION  FOR  LEAVE  TO  APPEAL  NO. 459 OF  2011

(From the judgement and order dated 13th of January, 2011 passed by the High Court Division in Death Reference No. 121 of 2005 with Criminal Appeal No. 3425 of 2005 and Jail Appeal No. 945 of 2005)

 

The State

 

... Petitioner

  = Versus =

 

 

Md. Akinur Rahman @ Akibul

... Respondent

For the Petitioner

 

:Mr. Biswajit Deb Nath,

Deputy Attorney General,

instructed by

Mrs. Sufia Khatun

Advocate-on-Record

For the Respondent

 

Mr. Fazlul Haque Khan Farid,

Advocate, instructed by

Mr. Md. Zahirul Islam

Advocate-on-Record

Date of hearing & judgement

:The 17th of July, 2014




J U D G E M E N T

 MUHAMMAD IMMAN ALI, J:-

This criminal petition for leave to appeal is directed against the judgement and order dated 13.01.2011 passed by a Division Bench of the High Court Division in Death Reference No. 121 of 2005 and Criminal Appeal No. 3425 of 2005 with Jail Appeal No. 945 of 2005 rejecting the reference and allowing the criminal Appeal No. 3425 of 2005 with Jail Appeal No. 945 of 2005.

The facts relevant for disposal of this petition are that one Abu Siddiq as infromant lodged a First Informantion Report (F.I.R.) with Pirgonj Police Station alleging inter alia that the daughter of his brother namely Swapna Begum  was married to Md. Akinur Rahman one year prior to the alleged occurrence. At the time of marriage the accused demanded a bicycle, 6 annas of gold ornaments, gold ring weighting 2 annas and cash Tk. 15,000/-and other household materials as dowry. For the welfare of their daughter Swapna, the informant party paid Tk. 2000/ to buy a bicycle, Tk. 2500 for the gold ornaments, Tk. 1200 for the ring and Tk. 7000/- out of cash Tk. 15000/-. After the marriage, her husband with his mother used to torture and pressurise Swapna Begum for the remaining cash Tk. 8,000/-. In the mean time Swapna left her husband’s house and started to stay with her father’s family from 12 days prior to the occurrence. Thereafter, the informant party tried to sell their cow in the market but as the cattle price was low they could not sell it. They tried to convince Akinur that they would pay the rest of the dowry money within 1 or 2 days. On 22.12.2002 Akinur went to the house of his father-in-law and at about 8:30 p.m. Akinur and Swapna started for their own house. After that the informant party went to sleep. In the next morning, i.e. on 23.12.2002 they were awakened by the hue and cry of the neighbouring people, and they came to know that 200 yards away from their house the dead body of Swapna was lying in the brinjal field of Ayub Ali. Getting this news the informant and others went the place of occurrence and found the dead body of Swapna. Several marks of injury were found on her body. The informant suspected that the accused and his mother killed Swapna. On the request of the father of the deceased the informant being his brother lodged the F.I.R. on the same day.

After investigation the police submitted charge sheet under section 11 (Ka)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 against both the accused.

During trial the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal NO. 1, Rangpur, framed charge under section 11 (Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 against the respondent and charge was framed against Nahera Khatun under section 11 (Ka)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000.

The prosecution examined as many as 10 witnesses while the defence examined none. The defence case as it transpires from the trend of cross-examination is that the accused respondent Akinur Rahman did not take away Swapna from her father’s house and on the fateful night Swapna was in her father’s house and some body might have taken her into the brinjal field and committed rape therein and murdered her by stabbing and the story of demand of dowry is false, concocted and imaginary. No dowry was demanded nor was any dowry money paid to the respondent or his mother. Further case of the defence is that on the fateful night Swapna was not in the custody of the accused rather she was residing in her parent’s house.

Upon concluding the trial, the learned trial Judge by his judgement and order dated 06.08.2005 convicted the respondent under sections 11 (Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced him to death, while the other accused was acquitted.

Reference was made under section 374 of the Code of Criminal Procedure which was registered as Death Reference No. 121 of 2005. The respondent also filed Criminal Appeal No. 3425 of 2005 and Jail Appeal No. 945 of 2005. By the impugned judgement and order, a Division Bench of the High Court Division rejected the death reference and allowed the criminal appeal and Jail appeal, thereby acquitting the respondent.

Being aggrieved by and dissatisfied with the impugned judgement and order, the State as petitioner filed the instant criminal petition for leave to appeal before this Division.

Mr. Biswajit Deb Nath, learned Deputy Attorney General appearing of behalf of the petitioner submitted that the High Court Division in passing the judgement and order acquitting the accused respondent in Death Reference No. 121 of 2005 rejecting the same and thereby allowing the appeals failed to appreciate that there is a strong prima-facie and specific allegation of gang rape in a wife killing case and the burden of proof lies upon the husband to explain the cause of death of his wife from his own custody, and this point was not at all considered by the High Court Division. He further submitted that the prosecution was able to prove its case beyond all reasonable doubt examining independent charge-sheeted witnesses in support of its case and the ingredients of the offence under section 11 (Ka) of the Nari-O-Shishu Nirjata Daman Ain, 2000 have been proved and accordingly the learned Judge of the trial Court applying his judicial mind awarded death sentence to the accused respondent. The learned D.A.G. lastly submitted that the High Court Division passed the judgement and order rejecting the reference and allowing the appeals without considering the evidence on record both oral and documentary and in a non- speaking judgement came to an erroneous finding and decision in acquitting the accused respondent, whereas all the prosecution witnesses corroborated each other to prove the prosecution case.

Mr. Fazlul Hoque Khan Farid, learned Advocate appearing on behalf of the respondent made submissions in support of the judgement and order of the High Court Division.

We have considered the submissions of the learned D.A.G. appearing for the State and learned Advocate for the respondent and the perused the impugned judgement and other connected papers on record.

The High Court Division observed that the house of the father of the deceased and the house of her husband (the accused)are situated side by side and are surrounded by houses of many people, but no independent witness was examined by the Investigating Officer nor cited as witness in this case, thus creating doubt. The High Court Division further observed that the victim was gang raped before her death, and this aspect was not investigated by the I.O. thus creating serious doubt. The High Court Division also took into consideration the fact that the defence suggestion that on the fateful night the deceased was in the house of her father, and somebody might have taken her to the place of occurrence and committed rape upon her and then killed, gets support from the prosecution witnesses and the circumstances mentioned.

It is true that a case where section 106 of the Evidence Act is applicable, i.e. when the victim was last seen with the alleged accused, the accused has a duty to explain how the victim died. However, in the instant case there is no independent corroborative witness with regard to the deceased being in the company of the accused in spite of the fact that the houses of the victim’s father and that of her husband are near to each other and they are surrounded by many other houses of persons who would be independent witnesses, but no independent witness was cited in the charge sheet or examined by the prosecution in support of the prosecution case. Moreover, the allegation of the victim having been killed by her husband on account of non-payment of dowry is belied by the fact that the victim was apparently killed after having been gang raped as indicted in the post mortem report and supported by the inquest report. The defence suggestion that the victim went out of her father’s house to watch a show at the local school or that she may have been taken out of her father’s house and raped and killed thereafter cannot be overlooked in view of the finding of the post mortem examination that the victim was gang raped. The fact of the victim having been gang raped is not commensurate with the prosecution claim that the accused, being the husband, killed his wife for dowry. We also note from the cross examination of P.W. 3 Md. Mofazzel Hossain, who is a brother of the informant that he stated ""Bj¡l ®j­u­L A‘¡a ®m¡®L doÑZ L­l j¡¢lu¡­R  B¢j hm­a f¡¢lh e¡z''(emphasis added) which is clearly prevarication, particularly in view of the fact that the post mortem examination report clearly indicates gang rape prior to murder.

In view of the above discussion, we do not find any illegality or infirmity in the impugned judgement and order of the High Court Division.

Accordingly, we do not find any reason to interfere with the impugned judgement and order and hence the criminal petition for leave to appeal is dismissed.