The State Vs. Badiuzzaman @ Badu and others, 2 LNJ (2013) 567

Case No: Death Reference No. 66 of 2006

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

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

Citation: 2 LNJ (2013) 567

Case Year: 2013

Appellant: The State

Respondent: Badiuzzaman alias Badu and others

Subject: Legal Evidence, Circumstantial Evidence, Law of Evidence,

Delivery Date: 2012-02-15

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Md. Ziaul Karim, J.
And
A.N.M. Bashir Ullah, J.

Judgment
15.02.2012 and 16.02.2012
  The State
Versus
Badiuzzaman alias Badu,
…Condemned-prisoner
With
Badiuzzaman alias Badu,
... Convict-appellant.
Versus
The State
...Respondent. In Criminal  Appeal No. 3747 of 2006.
Badiuzzaman alias Badu,
... Convict appellant.
Versus
The State,
…Respondent. In Jail Appeal No. 730 of 2006.
With
1. Md. Kadir alias Kadir,
2. Md. Anwar Hossain alias Anowar,
… Convict-appellants.
Versus
The State,
… Respondent. In Criminal Appeal No. 3965 of 2006.
With
1. Yunus Mia
2. Hanif           
…Convict-appellants
Versus
The State,
…Respondent. In Criminal Appeal No.5558 of 2006
With
1. Zia alias Ziaul,
2. Mizan,
... Convict-appellants.
Versus
The State,
… Respondent. In Criminal Appeal No. 4086 of 2006.
 
Code of Criminal Procedure, (V of 1898)
Section 161
The victim Sohel was lastly seen with condemned prisoner Badu on 18.07.2002 at 7.00 p.m. The PWs. were examined by the Investigating Officer after long lapse of time. Significantly the PWs. 2, 3, 6, 8 and 9 were examined on 14.12.2003, 24.09.2002, 24.04. 2003, 17.06.2003 and 18.12.2003 respectively. Other brother of deceased, Dulal (Pw. 10) was examined after 8/9 months later from the occurrence. Therefore, it is very unsafe to rely upon such witnesses in convicting the accused persons. . . .(65)
 
Evidence Act, (I of 1872)
Section 8
The circumstances by themselves without anything more, are not enough to connect the condemned prisoner with the crime. It is, therefore, clear that the learned trial Court has committed a serious error of law in basing conviction of the condemned prisoner on such circumstantial evidence which has failed to connect the appellants with the crime. . . . (87)
 
Code of Criminal Procedure, (V of 1898)
Section 342
The prosecution tried to make a nexus between the accused Badu and the crime of murder by one pair of Sandal which was allegedly belonged to Badu but surprisingly we find that at the time of examination of accused Badu under Section 342 of the Code, attention to such incriminating evidence i.e. Sandal was not drawn to him. In our view the same seriously prejudiced the accused and he was denied to explain his position in respect of nexus between the last seen and recovery of the dead-body and also with the crime of murder. . . . (93)
 
Evidence Act, (I of 1872)
Section 30
From appraisal of the evidence on record it is crystal clear that there is absolutely no evidence against the other six co-accused namely, Yunus, Zia, Mizan, Hanif, Anwar Hossain and Kader save and except their names were disclosed in the confession of accused Tota Mia. Since there is no substantive corroborative evidence against those accused, the said confession should not be used against them unless there exists independent evidence, direct or circumsta-ntial, to connect them with the murder. Since there is no direct evidence in this case against them, such confession should not be used against them. Exculpatory confession cannot be used against them. . . . (98, 106 and 110)
 
Evidence Act, (I of 1872)
Section 8
The prosecution measurably failed to establish by evidence that soon after the occurrence, the accused had any responsibilities to discharge their duties towards the occurrence. It is well settled that mere abscondence cannot always be a circumstances leading to the inference of guilt of the accused. In this case, there is no evidence against the accused. Hence their subsequent abscondence cannot be treated as a circumstances leading to the inference of involvement in the crime. Mere abscondence cannot always be a circumstances which should lead to an inference of guilt of the accused. Sometimes out of fear and self respect and to avoid unnecessary harassment even an innocent person remain absconding for sometime.

In the instant case abscondence of six accused from beginning is not conclusive proof of their guilt, it cannot be the sole basis of their conviction as there is no other evidence against them. . . . (119 and 121)
 
Evidence Act, (I of 1872)
Section 3
There cannot be conviction for murder on mere suspicion or presumption. The commission of murder must be proved. The presumption cannot take the place of positive evidence. 

Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence.

Law is now well settled that suspicion or doubt however strong it might be cannot take place of evidence or there be slightest doubt as to the involvement of the accused in the crime, he cannot be convicted.  . . (124 – 126)
 
Mizanul Islam alias Dablu Vs. State, 41 DLR (AD) 157; State Vs. Al Hasib Bin Jamal alias Hasib and 5 others, 59 DLR 653; Nazir Ahmed Vs. King Emperior, AIR 1936 (PC) 253; Rezaul Haq and others Vs. State, 42 DLR 4403 Bangladesh (State) Vs. Paran Chandra Baroi 1986 BCR (AD) 225; Vijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel and others, 2004 Criminal 413; Abul Kalam Azad alias Ripon (Md) Vs. State, 58 DLR (AD) 26; Sanwar Hossain Vs. State, 45 DLR 489; Muslimuddin and others Vs. State, 38 DLR (Ad) 311; Haji Md. Jamal Uddin Hossain and others Vs. State, 1994 BLD 33; State Vs. Mokbul Hossain, 1986 BLD 34 = 37 DLR 156; Nurul Haque Vs. State, 1982 BCR 332; Moinullah and another Vs. State, 1988 BLC 100 = 40 DLR 443; State Vs. Babul Hossain, 52 DLR 400; AIR 1984 SC 1622, 1994 BLD 33; 1985 BLD (AD) 301; Air 1990 SC 214; 10 MLR (AD) 175; PLD 2003 SC 704; AIR 1984 SC 1622; 41 DLR 11; 61 DLR 310; 1992 (2) Crimes 858; PLJ 1999 SC 729; 1989(2) Crimes 240 Delhi, 37 DLR (AD) 87; 9 BLT (AD) 107; 43 DLR 512; 1991 BLD 158; Hasan Ali and another Vs. State, 38 DLR 235; Abdul Aziz and others Vs. State, 33 DLR 402; PLD 1950 Lahore 288 (FB); Eredu and others Vs. State of Hydrabad, PLD 1956 SC 286; Taslimuddin alias Tasir and 3 others Vs. State, 44 DLR 136; Rahman Vs. State of U.P., AIR 1972 SC 110; State Vs. Khasru alias Syed Mostafa Hossain and another, 43 DLR (Ad) 182; Abdus Samad Vs. State, 16 DLR (SC) 261; Anisur Rahman and others Vs. State, 1986 BLD (AD) 77; 1987 BCR (AD) 187; Taslimuddin alias Tasir Vs. State, 44 136; 11 DLR (SC) 365, PLD 1956 SC 286; 33 DLR 402; Nuru and another Vs. State, 1 BLC 582 Para 14; Sarwar Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637; Mufazzal Hossain alias Mofa and others Vs. State, 58 DLR 524; State Vs. Rafiqullah Khan, 7 BLC 480; Ustar Ali Vs. State, 3 BLC (AD) 53; Lutfunnahar Vs. State, 27 DLR (AD) 29; Babor Ali Mollah Vs State, 44 DLR (AD) 10; State Vs. Lalu Mia, 39 DLR (AD) 117; Amir Hossain Vs. State, 37 DLR (AD) 179; Joygun Bibi Vs. State, 12 DLR (SC) 156; Bhuboni Saha Vs. The King, L. R. 76 Indian Appeals, 147; Kashmira Singh Vs. State of Madhya Pradesh, 1952 S. C. R. (India) 526; Emperor Vs. Lalit Mohan Chockroborty, (1911) ILR. 38 Calcutta 559 at p. 588; In re Periyaswami Moopan, (1931) ILR 54 Madras 75 at p. 77; Maqbool Hossain Vs. State, 12 DLR (SC) 217; AIR 1964 SC 1184; AIR 1949 PC 257 + AIR 1952 SC 159; AIR 1957 SC 381 + AIR 1964 AP 548; AIR 1967 Goa 31 at p. 25; AIR 1956 SC 56; AIR 1957 A. P. 758 + AIR 1952 SC 139 + AIR 1957 Orissa 172; AIR 1952 SC 159 + AIR 1964 SC 1184 + AIR 1965 Orissa 170; AIR 1966 Pat 448; AIR 1957 SC 216 + (1966) 142 Cut LT 1140; AIR 1964 SC 1184 + 1977 Crl. L.J. 1309; AIR 1968 SC 832; Ashraf Ali Munshi Vs. State, 48 DLR 590; Shahajahan Vs. State, 56 DLR 575; State Vs. Balai Chandra Sarker, 47 DLR 467; State Vs. Sree Ranjit Kumar Pramanik, 45 DLR 660; Abdul Khaleque Vs. State, 45 DLR 75 Sanwar Hossain Vs. State, 45 DLR 489; Abdus Salam Vs. State, 1994 BLD 99; State Vs. Badsha Mollah, 41 DLR 11; Monsur Ali Vs. State, 13 BLC 196; State Vs. Mofijuddin, 4 BLD 481 = 10 BLC 93; State Vs. Lalu Mia, 39 DLR (AD) 117; 45 DLR 660; Ali Vs. Crown, 6 DLR (WP) 52; Rahman Vs. The State of U. P., AIR 1972 SC 110; Shajahan Vs. State, 46 DLR, Mojibur Rahman Vs. State 13 MLR 44; 1970 P. Crl. L.J. 166; Abdul Haq and tohers Vs. State, 14 BLT 485; Fazlu alias Fazlur Rahman Vs. State, 1 BLC 558; Rekatfullah Vs. State, 13 DLR 750; AIR 1921 (PC) 69 and Safder Ali Vs. Crown, 5 DLR (FC) 107 ref.
 
Mr. M. A. Mannan Mohan, D.A.G. with
Mr. Md. Mahbub Ul Alam, A.A.G.
Mr. Md. Osman Goni, A.A.G. and
Mrs. Delwara Begum, A.A.G.
…For the State
 
With
Mr. Habibul Islam Bhuiyan, Senior Advocate with
Mr. Safiul Alam, Advocate and
Mr. Zahirul Islam, Advocate
…For the convict-appellant in Criminal Appeal No. 3747 of 2006.
 
With
Mr. Md. Baharuddin Al Razi, Advocate,
…. For the convict-appellant in Jail appeal no. 730 of 2006.
 
With
Mr. S.M. Shahjahan, Advocate with
Mr. Reba Kanij, Advocate
… For the convict-appellant in Criminal appeal no. 3965 of 2006.
 
With
Mr. M. Amirul Islam, Senior Advocate with
Ms. Tania Amir, Advocate, and
Mst. Sultana Nasrin, Advocate,
… For the convict-appellants in Criminal Appeal No. 5558 of 2006.
 
With
Mr. Luthfor Rahman Modal, Advocate, with
Mr. S.M. Mujibur Rahman, Advocate, and
Mst. Delwara Habib, Advocate,
….. For the convict-appellants in Criminal Appeal No. 4086 of 2006.

Death Reference No. 66 of 2006 with Criminal  Appeal No. 3747 of 2006 with Criminal Appeal No. 3965 of 2006 with Criminal Appeal No.5558 of 2006 and Criminal Appeal No. 4086 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 Sessions Judge, Narayangonj, for confirmation of death sentence of condemned-prisoner.

By the above appeals the appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 30-07-2006 passed by learned Sessions Judge, Narayangonj, convicting the appellants under Sections 302,34 of the Penal Code and sentencing appellant Badiuzzaman alias Badu to death by hanging and also to pay a fine of Tk.50,000/= and sentencing the appellants namely 1. Yunus, 2. Zia alias Ziaul, 3. Mizan, 4. Hanif, 5.Anwar Hossain and 6. Kadir for imprisonment for life and also to pay a fine of Tk.50,000/- each in default to suffer rigorous imprisonment for one year more, however, acquitted the accused namely 1. Tota Mia, 2. Siraj alias Sirajul Islam, 3. Asduzzaman alias Ashu, 4. Abul  Kalam, 5. Samad and 6. Nur Hossain, 7.Nuruzzaman alias Zaman.

This death reference and all these appeals having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment.

The prosecution case put in a nutshell are that victim Sohel (since deceased) younger son of Mursheda Begum (P.W.1) was staying at her village home at Kazirgaon. On 18-07-2002 at 7:00 p.m. accused Badiuzzaman alias Badu called him out with a pretext to enjoy picnic with Asaduzzaman alias Ashu, Siraj and Kader, scheduled to held at a trawler. On the way Md. Ruhul Amin (P.W. 2) local mosque Imam, Nayeb Ali and Tota Mia(P.W.3) found him with Badu.  On the same night he did not return. Later, his mother (P.W.1), brother (P.Ws. 8 and 10) unsuccessfully searched him in different places including their host and relatives. On 20-07-2002 at 8:00 p.m. Ripon (P.W. 8), brother of deceased found two pairs of sandal one belonged to deceased Sohel beside the Majerchar graveyard. On 21-07-2002 at 6:00 a.m. one body was found floating at the point of Anarkhal and Brahmmaputra river western side of the house of Jalil Mia of village Nayagaon. They identified him as the body of Sohel which bore multiple injuries. From the local sources it was learnt that Sohel went with accused 1.  Badiuzzaman alias Badu, 2. Siraj, 3. Kadir, 4. Yunus, 5. Ziaul, 6. Mizan, 7.Hanif and 8. Anwar to enjoy picnic at Chalk near Kazirgaon graveyard. Later, Sohel was murdered by those accused. It was suspected that due to previous rivalry such incident happened. With these allegation prosecution was launched by lodging a first information report (briefly as FIR) by Mursheda Begum (P.W.1) which was recorded as Sonargaon Police Station case no. 9 dated 21-07-2002 corresponding to G.R. no. 614 of 2002 accusing eight accused namely 1. Badiuzzaman alias Badu, 2. Md.  Kadir, 3. Siraj, 4. Yunus, 5. Zia alias Ziaul 6. Mizan, 7. Hanif, and 8. Anwar.

During investigation accused Tota Mia father of accused Badiuzzaman alias Badu made confession disclosing the above named accused along with others.

The Police after investigation submitted charge sheet under Sections 302, 34 of the Penal Code accusing fourteen accused including the FIR named accused numbering eight.

Eventually, the accused were called upon to answer the charge under Sections 302, 34 of the Penal Code and the accused on dock pleaded not guilty and claimed to be tried. The absconding accused were defended by the State defence lawyer.

In course of trial the prosecution in all examined seventeen witnesses out of twenty charge sheeted witnesses.

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 they were falsely implicated in this case by their local rivals.

After trial the learned Sessions Judge convicted the accused as aforesaid holding that:
  1. The confession of co-accused Tota Mia was found voluntary and true who implicated the other co-accused;
  2. There are specific evidence that accused Badiuzzaman alias Badu called the victim out from home and all the accused murdered him;
  3. Soon after the occurrence the accused fled away which is a circumstance led to an inference of guilt of the accused;
  4. The victim Sohel (since deceased) was called away on 18-07-2002 and two pairs of sandals were found on 20-07-2002 in the morning, of which one sandal belonged to accused Badu which indicates the complicity of accused in the crime of murder;
The absconding accused after pronouncement of judgment being surrendered preferred the above appeals.
The learned Deputy Attorney General appearing for the State supports the reference and submits that accused Badu called deceased Sohel out and subsequently his dead-body was found which bore multiple injuries and prior to it two pairs of  Sandal one belonged to deceased and other Badu were also found beside the graveyard which were duly identified by witnesses. He adds that those are the incriminating circumstances against the accused. He adds that PWs. 1,2,3,5 and 8 found the victim Sohel with accused Badu for certain period of time but the accused failed to explain the subsequent death of Sohel which are also incriminating circumstances against them. The learned Counsel lastly submits that the Court below after considering the evidence on record rightly convicted the accused which calls for no interference by this Court.

The learned Counsels appearing for the condemned-prisoner and appellants by their common contention seek to impeach the impugned judgment and order of conviction and sentence on five fold arguments:

Firstly: It was proved by evidence that there was a strained relations between the parties. So it was improbable to go Sohel with Badu to enjoy picnic along with other accused. The prosecution failed to prove the nexus between the last scene with Badu and later recovery of dead-body Sohel by evidence. Moreso, the attention to the incriminating materials particulars the sandal was not drawn to the accused Badu at the time of examination under Section 342 of the Code which seriously prejudiced him. In support of their contention they refer the case of Mizazul Islam alias Dablu Vs. The State 41 DLR(AD) 157 held:

“On the important items for linking up the accused with the crime namely the sandal was not at all put to the accused as a circumstance appearing in the case against him while he was examined u/s.342 Cr.P.C.”
 
They next refer the case of Ismail Sarker alias Sudan Member and others Versus State 33 DLR-320 held:

Deceased was seen in the company of the accused at 10 p.m. followed by discovery of his dead-body at noon next day- No presumption, without further materials, that the accused was concerned in the murder of the deceased –Circumstantial evidence being not incompatible with accused innocence.”
 
Secondly: The most important witnesses like PWs. 2,3,6,8,9 and 10 upon which the prosecution relied were examined by the investigating officers after long lapse of time, which are required to be left out of consideration. In support of their contention they refer the case of State Vs. Al Hasib Bin Jamal alias Hasib and five others 59 DLR- 653 held:

Inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in the circumst-ances their evidence cannot be relied on and are to be left out of consideration.”
 
Thirdly: The confession of an accused cannot be a basis of conviction of other co-accused without any corroborative evidence. In support of their contention they refer  the case of Fateh Sher and another Vs. Crown 1956  PLD(Lahore) 157 held:

Confession affecting co-accused but affecting the maker: only impliedly–In admissible against co-accused.”
 
Moreso, there are glaring inconsistencies and contradictions between the FIR and other evidences which are unsafe to convict the accused in such circumstances. In support of their contention they refer the case of Babor Ali Molla and others Vs. State 44 DLR(AD)10 held:

"Vital omissions in FIR and statement to the Investigation Officer make their substantive evidence unreliable.

Prosecution did not make attempt to examine relevant witnesses to corroborate PW 1’s claim that she mentioned name of accused Babor while lodging the FIR but the report was not read over to her. Nor is there any cross-examination of the Investigating Officer who stated to have read over the FIR to her who admitted the same to have been correctly recorded. Similarly, another eye-witness. PW. 5, did not state to the Investigating Officer about the recognition of some of the accused and injuries done to the deceased that were deposed in Court. Such vital omissions of material facts amount to contradiction. The High Court Division did not at all consider vital omissions relating to assault on the deceased. In view of such vital omissions it is difficult to rely upon the so-called eye witnesses.”
 
They further submit that the learned Judge convicted the non-confessing accused considering their abscondence, which    cannot be the sole basis of their conviction. In support of their contention they refer the case of State Vs. Al Hasib Bin Jamal alias Hasib and five others 59 DLR-653 held:

It is well settled that abscondence of an accused is not conclusive proof to his guilt and cannot be the sole basis of his conviction without any corroborative evidence.”
 
Fourthly: The learned Sessions Judge convicted the accused without complying the procedures prescribed in Sections 87, 88 of the Code. They add that the procedures which are required to be followed directly should be followed but by non-complying those proce-dures cause a serious prejudice to the accused. So the conviction and sentence cannot be sustained. In support of their contention they refer the case of Nazir Ahmad Vs. King Emperior AIR 1936(P.C.) 253 observed:

To this contention it was answered that there was no ground for reading the word “ may “ in S. 164 as meaning “ must” on the principle described in 5 A C 214  (18). There is no need to call in aid this rule of construction-well recognized in principle but much debated as to its application. It can hardly be doubted that a magistrate would not be obliged to record any confession made to him, if, for example, it were that of a self-accusing madman or for any other reason the Magistrate thought it to be  incredible or useless for the purposes of justice Whether a Magistrate records any confession is a matter of duty and discretions and not of obligation. The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts 1Ch D 426(19) at P. 431- and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to S. 164”.
 
In support of last seen they refer the case of Rezaul Haq and others Vs. State 42 DLR-440 held:

If it is proved beyond doubt that the deceased is seen last alive in the company of the accused, he is a liable to offer satisfactory explanation as to the cause of death of the deceased or at least as to his company with the deceased. If circumst-antial evidence leading to the irresistible conclusion that the accused alone caused the death of the victim is not considered sufficient for his conviction then there can never be any conviction on circumstantial evidence. In other words, the prosecution cannot prove its case by circumstantial evidence. Such a concept contrary to time, honoured principle of law regarding circumstantial evidence.”
 
Fifthly:  The prosecution failed to prove time, place and manner of occurrence. They add that some unknown assailants may have committed the murder of Sohel for the cause of taking leadership to the locality but due to local rivalry those accused were implicated. They lastly submit that the prosecution measurably failed to prove the charge against the appellants beyond all reasonable doubt and conviction and sentence based on misreading and non-consideration of the evidence on record which cannot be sustained in the eye of law.
 
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, Mursheda Begum is the informant and mother of deceased Sohel. She deposed that on 18-07-2002 at 7:00 p.m. accused Badiuzzaman alias Badu called her son Sohel out from their home with a plea to go for picnic with Ashu, Siraj and Kader in presence of Tota Mia. On their way Ruhul Amin  Imam of local mosque and Nayeb found Badu with Sohel. On the same night Sohel did not return. On the following morning she and her other sons searched Sohel in the house of Ashu, Siraj, Kadir and Badu but their houses were under lock. On the following day her son Ripon found two pairs of sandal one belonged to Sohel and other Badu with one Chinese axe belong to Kadir. They searched him in different places but to no avail. Later, a dead body was found floating in the river near the house of Jalil, Miah. She identified the dead-body as her son Sohel. The locals were whispering that her son was murdered by the above accused. With these allegations she lodged the FIR. She proved the same as Exhbt. 1 and her signature on it as Exhbt. 1/1, ½, 1/3. Later, inquest was held by the Police and the cadaver was sent to the morgue for autopsy. She also identified two pairs of sandal as material Exhbt. 1 and China axe as material Exhbt. 2.

In cross-examinations she stated that before occurrence accused Badu never called away her son., At the time of calling away her debor Tota Mia was present. There were 100/200 houses around the P.O. She denied the suggestion that she was deposing falsely.

P.W. 2 Md. Ruhul Amin a local Imam of Kazirgaon Jam-E-mosque. He deposed that on18-07-2002 at 10:00 a.m. he found accused Badu appeared to be nervous. On the following day i.e. on 19-07-2002 he had a talk with the mother of victim Sohel to whom he stat ed that in the previous evening before magrib prayer he found accused Badu and Sohel were going  towards south. He heard that on 21-07-2002 the dead-body of Sohel was found floating in the river. He identified accused Badu on dock.

In cross-examination he stated that the resident of Badu is about 300 yards away from Sohel’s house. On 28-12-2002 the was examined by I.O. He denied the suggestion that he did not state to I.O. that he told to mother of Sohel that Sohel accompanied with Badu and deposing falsely.

P.W. 3 Tota Mia is uncle of deceased. He deposed that on 18-07-2002 at 7:00 p.m. accused Badu called out the victim Sohel from the house with a plea to meet with accused Siraj, Ashu and Kadir. On the same night he did not return. They searched him in a different places. Subsequently, two pairs of shoe, one Chinese axe were found near Majer char graveyard. He heard that one dead-body was floating in the Brammaputra river near the house of Jalil Mia. He rushed there and identified the body. Mother of Sohel lodged the FIR. Later, Police happened there and recovered the body. He identified accused Badu on dock.
In cross-examination he stated that deceased Sohel and Badu were friends and they was no enmity between them previously. On24-09-2002 he was examined by the I.O.  He denied the suggestion that he was deposing falsely at the instance of the informant.

P.W. 4 Akter Hossain, a local witness. He deposed that on 21-07-2002 inquest was held by the Police in his presence and he signed in the inquest report. In his presence I.O. seized one Trawler then it was given to his jimma (Exbt. 2) and seizure list (Exhbt. 3).

In cross-examination he stated that the price of Trawler was about Tk.20/40 thousand.

P.W. 5 Alauddin Bepari, a local witness. He deposed that on 18-07-2002 at the evening during magreb prayer he found accused Badu and Sohel were going towards south. On quarry they told that they were going to enjoy picnic. On the following morning at 7:00 a.m. he heard that a dead-body was floating. He identified it as the body of Sohel.

In cross-examination he stated that he has a short sight view. He denied the suggestion that he did not see Badu and Sohel and deposing falsely.

P.W. 6 Fatema Begum is a local witness. She deposed that she heard from her daughter Lipi that accused Badu and Kadir came to the house of Sohel and she and accused Badu reside in the same homestead. On the following morning at 7:00 a.m. Lipi informed her that one dead-body was found beside the graveyard and heard that Sohel was murdered.

In cross-examination she denied the suggestion that Lipi did not state anything to her and deposing falsely.
P.W. 7 Anwar Hossain a local witness and helper of a bus. He deposed that on 18-07-2002 at 7:00 p.m. he found accused Badu and Sohel together on the road near Kajirgaon. On quarry Badu informed that they were going to enjoy picnic in a Trawler of Abul Kalam wherein Ashu bhai, Kader bhai and Siraj bhai were waiting, victim Sohel and accused Badu were going towards south and subsequently on Sunday at 8:00 a.m. he heard that a dead-body was found floating in Narayangonj river. The Police recovered the dead-body and held inquest and prepared report. He signed in the report.

In cross-examination he denied the suggestion that he did not see Badu and Sohel going together and deposing falsely.

P.W. 8 Md. Ripon Mia elder brother of deceased Sohel. He deposed that on 18-07-2002 at 7:00 p.m. he found that accused Badu and Sohel were going to enjoy picnic with Siraj bhai, Kadir bhai, Hanif, Yunus, Anwar Hossain, Jamal, Zia, Nizam, Samad, Nur Hossain, Abul Kalam. On the same night victim did not return. On the following day he along with other brothers and mother searched the victim in different places including the house of Siraj, Kadir, and Badu but to no avail. On the following morning two pairs of sandal and one china axe were found. Then on Sunday he came to know a dead-body was floating at the village Nayagao near Jalil Mia ghat. He identified it as his brother Sohel, his mother lodged FIR. He identified sandal and axe as material Exhbt.1 series and 2. He also identified accused on dock.

In cross-examination he stated that his deceased brother and other accused used to move together and there was no previous enmity between them. He denied the sugges-tion that he was deposing falsely.

P.W. 9 Taulad Hossain cousin of deceased Sohel. He deposed that prior to the occurrence there was an internal feud between accused and Sohel over the distribution of sweats in Milad held at local Jam-E-mosque after jumma prayer. At one stage accused Badu dealt fist and blow to deceased and also threatened him for dire consequence. On 18-07-2002 at evening Sohel went out with Badu to enjoy picnic with Ashu, Siraj and Kadir and on the way he had a met with Imam Ruhul Amin, Ripon and Khalilur Rahman. On 21-07-2002 dead-body of Sohel was found and Police sent the dead-body to the morgue for autopsy. From locals he came to know that accused Kadir, Jaman, Hanif, Zia, Mizan, Samad, Nur Hossain, Anwar Hossain, Abul Kalam and Yunus murdered Sohel. Later, the dead-body was thrown into the river. Deceased Sohel did not return in the same night. So his mother unsuccessfully searched him in different places. On Saturday Ripon found two pairs of sandal and one Chinese axe near the graveyard and identified the sandal of Sohel and Badu and a China axe, used by accused Kadir. He was examined by the I.O. after 8/9 months of the occurrence.

In cross-examination he stated that he heard the occurrence. The picnic was held in the Trawler. He denied the suggestion that he was deposing falsely due to local rivalry.

P.W. 10 Dulal younger brother of deceased Sohel. He deposed that his mother told him that on 18-07-2002 at evening accused Badu called victim Sohel out to enjoy picnic with Siraj, Ashu and Kadir. They searched the victim in different places. On the following morning Ripon found two pairs of sandal and one china axe. On Sunday one Akkas Ali informed him that one dead-body was found floating near the hose of Jalil. They rushed to the spot and identified the dead-body of Sohel.

In cross-examined he stated that he was examined by the Police after 8/9 months of the occurrence. He denied the suggestion that he was deposing falsely.

P.W.11 Dr. Jatindra Chandra Mondal. He deposed that on 22-07-2002 he was attached with Narayangonj General hospital as R.M.O. At 10: 30 a.m. he held autopsy upon the cadaver  of Sohel aged about twenty years and found the following injuries:

“1. Extensive transversed ecchymosis on the right lateral aspect, anterior aspect on the left lateral aspect of mid middle of the neck.’
2. Multiple ecchymosis on the left side of the face, on forehead, on the anterior  aspect of the upper part of the both side of the chest, on the back on the left parietal region, on the occipital region, on the both forearms.
On dissection: Tissues were  congested and extra vasated with clotted bloods which resisted in washing. Tracking was found congested with blood clots.
Lungs congested with emphysematous hullae Death was caused due to asphyxia resulting from strangulation from above mentioned injuries which were ante mortem and homicidal in nature.”

He proved the Post mortem report as Exhbt. 4 and his signature on it as Exhbt. 4/1.
In cross-examination he stated that he did not mention the age of injuries and denied the suggestion that he submitted a perfunctory report.

P.W.12 Manjarul Mannan, Magistrate first class. He deposed that on 24-04-2003 he recorded the confession of accused Tota Mia after complying the provision of law. He proved the confession as Exhbt. 5 and his signature on it as Exhbt. 5/1.

In cross-examination he stated that accused Tota did not implicate himself in his confession.

P.W. 13 Saiful Islam, Inspector CID. He deposed that on 21-07-2002 he recorded the FIR and filled up its form. He proved the same as Exhbt. 6 and his signature on it as Exhbt. 6/1.

In cross-examination he denied the suggestion that the FIR was not written at the instance of informant.

P.W.14, C- Amzad Hossain. He deposed that on 21-07-2002 he carried the dead-body to the morgue. He proved the Challan of it as Exhbts. 7, 7/1 and 7/2.

P.W. 15 Md. Aminul Islam, A.S.P. He deposed that on 17-03-3002 he was attached in Dhaka Zone. He investigated the case, visited the place of occurrence, recorded the statement of the witnesses under Section 161 of the Code, and made arrangement for recording confession of co-accused Tota Mia. After investigation he submitted the charge sheet.

In cross-examination he stated that he took over the investigation on 17-03-2003. He examined witnesses Ripon on 17-06-2003, Taulad on 08-12-2003, Fatema on 24-04-2003.

He denied the suggestion that after perfunctory investigation he submitted charge sheet.

P.W. 16 S.I. Giasuddin, Partly investigated the case. He deposed that on 14-12-2002 he took over the investigation and examined witness Ruhul Amin. After transfer he handed over the case to the Officer-in-Charge.

In cross-examination he stated that after five months of the occurrence Ruhul Amin was examined.

P.W. 17 S.I. Sultan Ahmed, partly investigated the case. He deposed that on 18-07-2002 he was attached with Sonargaon Police Station. S.I. Saiful recorded the case. He proved the same as Exhbt.1. He visited the place of occurrence, held inquest (Exhbts. 8, 8/1) prepared sketch map and index (Exhbts. 9 and 10). After transfer he handed over the case to next I.O.

In cross-examination he stated that he visited the place of occurrence but did not seize alamats of seizure list. He did not find any witness regarding picnic held on Trawler and no material of picnic was found inside the Trawler, accused Badu was taken in Police remand for a period two times. He denied the suggestion that he did not investigate the case properly.

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

It is indisputable that slain Sohel was lynched.

On going to the materials on record it transpires that the prosecution in all examined seventeen witnesses out of twenty charge sheeted witnesses, of whom P.W.1 mother of the deceased and informant of the case. P.Ws. 2,3,4,5,6 and 7 are the local witnesses. They heard the occurrence. P.Ws. 8, 9, 10 are the relations of deceased, PW-11 held autopsy upon the cadaver carried by P.W. 14, P.W.12 Magistrate, first Class recorded the confession of accused Tota Mia. P.Ws. 13,15,16 and 17 are the official witnesses, of whom P.W.15 submitted charge sheet accusing the accused.

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.
  1. The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
  2. The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
  3. 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.
  4. There must be clear and unequivocal proof of the corpus delicit.
  5. 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 true that there is no eye witness to the crime of murder.  The prosecution case absolu-tely rests upon the evidence of P.Ws.1,2,3,6,8 and 9 and also circumstantial evidence. P.W. 1 stated that on 18-07-2002 at 7:00 p.m. accused Badu came to her village home and asked Sohel to go with him to enjoy picnic with accused Ashu, Siraj and Kadir. Then victim Sohel went out with accused Badu. The victim Sohel was lastly seen with accused Badu on 18-07-2002 at 7:00 p.m. and the above witnesses were examined to corroborate such incident. P.W.2, Imam of local mosque and P.W. 3 uncle of deceased, P.Ws. 8, 9 and 10 are the brothers. They also found the deceased with accused Badu for a certain period of time on 18-07-2002 at 7:00 p.m. Since then the prosecution failed to produce any witness in support to enjoy picnic held at Trawler and such facts was also corroborated by P.W.17. We find that dead-body of deceased Sohel was recovered after three days from taking away him from home and the incriminating sandal was recovered two days later from calling him on 18-07-2002. It should be noticed that those witnesses were examined by the investigating officer after long lapse of time. Significantly P.Ws. 2,3,6,8 and 9 were examined on 14-12-2003, 24-09-2002, 24-04-2003, 17-06-2003, 18-12-2003 respectively. Other brother of deceased, Dulal (PW-10) was examined after 8/9 months later from the occurrence. Therefore, it is very unsafe to rely upon such witnesses in convicting the accused.

In the case of Bangladesh (State) Vs. Paran Chandra Baroi 1986 BCR(AD)225  held:

The long delay in examining the material witnesses cast a doubt on the whole prosecution case.”

In the case of Vijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel and ors. 2004 Criminal 413 Supreme Court of India held:

The delay in questioning the witnesses by investigating officer is a serious mistake on the part of the prosecution. So the witnesses are not reliable.”

In the case of State Vs. Al Hasib Bin Jamal alias Hasib and five others 59 DLR 653 held:

Inordinate delay in examining the im-portant prosecution witnesses casts a serious doubt as to the truth of the pro-secution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration.”

Even then there are serious contradictions of the statements of witnesses to the Investigating Officer and testimony before the Court which makes their evidence unreliable. In the case of Abul Kalam Azad alias Ripon (Md) Vs. State 58 DLR(AD) 26 held:

When witness is contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted.”
 
In the case of Sanwar Hossain Vs. State 45 DLR-489 it was held inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left of consideration. In the case of Bangladesh Vs. Paran Chandra Baroi, 1986 BCR(AD) 225 it was held that the long delay in examining the material witnesses casts a doubt on the whole prosecution case. In the case of Muslimuddin and others Vs. State, 38 DLR (AD)311 evidence of P.W. 3 who claimed to have recognised the assailants was not relied upon as her statement, which could have been recorded on the day following the incident, was recorded after 34 days. Same view was taken in the cases of Haji Md. Jamal uddin  Hossain and others Vs. State, 1994 BLD-33, State Vs. Mokbul Hossain, 1986 BLD 34=37 DLR 156, Nurul Haque Vs. State, 1982 BCR 332, Moinullah and another Vs. State, 1988 BLD 100=40 DLR 443 and State Vs. Babul Hossain, 52 DLR-400. In view of the above settled principle of law the evidence of P.Ws. 2, 3, 4, 6, 8, 9 and 10 should not be relied upon and the same are to be left out of consideration.

The circumstances upon which the prosecution relied was that the accused Badu called out the victim on 18-07-2002 at the evening. Since then the prosecution failed to make a nexus upto the recovery dead-body of the deceased Sohel and complicity of others accused.

The circumstantial evidence in order to sustain conviction, must be complete chain and in capable of explanation of any other hypothesis than that of the guilt of the accused. It must be qualitatively such that on every reasonable hypothesis, the conclusion must be that the accused is guilty not on fantastic possibilities not fresh interference, but rational deduction which reasonable minds make from the probative force of facts if circumstances (AIR 1984 SC 1622, 1994 BLD 33). Where all the evidence is circumstantial it is necessary that cumulative its effect should be to exclude any reasonable hypothesis of the innocence of the accused (1985 BLD (AD) 301). The circumstances from which the conclusion of guilt is to be drawn should be fully established and the circumstances should be of conclusive nature and tendency. There must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that all human probability the act must have been done by the accused and the accused alone ( AIR 1990 SC 214).

Court has to conclusively decide the guilt or otherwise of the accused in clear terms but cannot leave the accused to be punished by Allah. This is peculiar and unknown method which the Apex Court strongly disproved and upon reassessment of the evidence on record convicted accused–respdt. since acquitted by High Court Division (10 MLR(AD)175).

Death sentence can be awarded on circumstantial evidence provided all circumsta-nces constituted a chain and no link is missing and their combined effect in that the guilt of the accused is established beyond any shadow of doubt (PLD 2003 SC 704). The onus is on the prosecution to prove that the chain is complete (AIR 1984 SC 1622). Where various links in a chain are in themselves complete then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity (41 DLR 11).

Where circumstances even if proved, there is a missing link and those circumstances can not lead to any irresistible conclusion that there was no other hypothesis except the guilt of the accused (61 DLR 310).

In a case based on circumstantial evidence the prosecution is under an obligation to establish fully and cogently each of the circumstances, which they want to rely upon [1992(2) Crimes 858]. The proved circumsta-nces should be of conclusive nature and definite tendency unerringly pointing towards the guilt of the accused. It is not necessary that each circumstances by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused and no link in the chain should be missing (PLJ 1999 SC 729). If the circum-stances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypot-hesis. In assessing evidence ordinary human probabilities but not the imaginary possibilities to be considered. When there is no direct witness to the commission of murder and the case rest entirety on circumstantial evidence, the circumstances relied on must be fully established. It is necessary to distinguish between primary or basic fact and inference of fact to be drawn from them. The Court has to consider the evidence and decide whether the evidence proves a particular fact or not whether the fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with that aspect of the problem, the doctrine of benefit would reply and an inference of guilt can be drawn only if the proved fact are inconsistent with the innocence of the accused and are consistent only with his guilt( 1990 SC 214).

The law in respect of circumstantial evid-ence is well settled, circumstantial evidence can only be acted upon if each and every circumstance is individually and conclusively proved and the circumstances so proved must collectively lead to the only conclusion that the accused persons are not guilty of the crime. The proved circumstances must form a chain so complete by itself that they should  result in the only conclusion of being consistent with the guilt of the accused (1989(2) Crimes 240 Delhi, 37 DLR (AD) 87). If there be any missing link the accused will escape through it, for in that case the prosecution case will not be proved upto the hilt (9 BLT(AD) 107).

The rule as regards sufficiency of circumstantial evidence to be the basis for conviction is that the facts proved must be incompatible with the innocence of the accused and in capable of explanation by any other reasonable hypothesis than that of his guilt(43 DLR 512).

The rule of circumstantial evidence is that each of circumstances must be knitted together closely so as to lead to an irresistible concl-usion that the accused alone had committed the offence by excluding the possibility that any other person might have committed the offence. The chain of events must be such that the possibility of innocence of the accused is wholly excluded and such facts are incapable of explanation of any reasonable hypothesis other than the guilt of the accused. If the circumstances do not provide any conclusive of the guilt of the accused, he cannot be convicted merely on the ground that such circumstances provide a strong ground for suspicion against the accused. If the theory of guilt and innocence are equally probable, then also the theory that favour of accused must be accepted (1991 BLD 158).

Relying on a number of decisions of the Supreme Court of the Sub-continent certain principles which are required to be followed in the criminal cases based on circumstantial evidence have been laid down in the case of Hasan Ali and another Vs. The State reported in 38 DLR(1986) 235 and those are reproduced below:

        “1. The circumstances for which an inference adverse to the accused was sought to be drawn must be proved beyond reasonable doubt;
        2. That circumstances, if proved, must be incompatible with their innocence of the accused and incapable of explanation upon any other reasonable hypothesis that of this guilt. In other words, the inculpable facts must be such that the probability of innocence of the accused is wholly excluded ;
        3. If the circumstantial evidence does not furnish conclusive proof of the guilt of the accused he cannot be convicted merely for the reason that the circumstantial evidence provides a ground for strong suspicion against him;
        4. If the theory of guilt and the theory of innocence are equally probable, then also the accused cannot be convicted on such evidence.”
 
In the case of Hasan Ali and another reported in 38 DLR 235 accused appellants were alleged to have gone to the house of the victim, called and brought him out and took him with them in the evening of 22-12-81 and the dead-body was found in the afternoon on the next day. In the said case it was held:

Merely  because the two accuseds had called and taken away the victim the previous evening it will be most unre-asonable to think that none but the two accused had called and taken away the victim. At least such a conclusion is not only beyond the scope but also absolutely unsafe to stretch the imagination so far.”
 
In the case of Abdul Aziz and others Vs. The State reported in 33 DLR 402 it has been held:

The evidence that the accused forcibly took away the deceased at night followed by the discovery of his dead-body next morning were not enough for conviction under sections 302,324 of the Penal Code.”
 
In the present case there is no direct evidence of the commission of murder. Nobody saw the accused persons causing any assault on him and the whole case rests on the evidence of the P.Ws. 1,2,3,4,6,8,9 and 10 but none of them has seen the occurrence.  The law on the point is now well settled. To put it in the words of Munir CJ expressed himself in the case reported in PLD 1950 Lahore 288(FB) in the following language :

To find a man guilty of a criminal offence on circumstantial evidence the facts proved must be consistent with the theory of guilt and incompatible with theory of innocence.” It is further obser-ved in the case “no man is to be found guilty on circumstantial evidence unless the circumstances established against him are such that no reasonable hypothesis other than the guilt can be built upon them”.
 
In the case of Eradu and others Vs. State of Hyderabad reported in PLD 1956 (SC) India Page 286 it is held:

It is fundamental principle of Crimi-nal Jurisprudence that circumstantial evidence should point inevitably to the conclusion that the accused and the accused only were the perpetrators of the offence and as such evidence should be incompatible with the innocence of the accused.”
 
The instant case is pre-eminently case where there is total absence of physical circumstances and link to connect the accused appellants with the crime and in that situation ocular evidence, to carry conviction, has also not come from unimpeachable source and it is also not supported by any strong circumstances, so as to over come the inherent doubt by which such evidence is necessarily affected.

The mode of approach of the evidence adopted by the learned trial Court is unsuitable for formation of a correct conclusion in a case of this nature. The Court below found that the accused were responsible for the crime without considering that the prosecution has failed to built up a link by circumstances so as to connect the appellant with the commission of the crime. There being no direct evidence in case and the circumstantial evidence being not conclusive, we cannot agree with the conclusion reached by the court below.
 
In our opinion, the circumstances by themselves without anything more, are not enough to connect the condemned prisoner with the crime. It is, therefore, clear that the learned trial Court has committed a serious error of law in basing conviction of the condemned prisoner on such circumstantial evidence which has failed to connect the appellants with the crime.
 
In the case of Tasliumuddin alias Tasir and three others Vs. State 44 DLR 136 held:

The fundamental principle of criminal jurisprudence is that circumstantial evidence should inevitable be to the conclusion that the accused and the accused only were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused”
 
In the case of Rahman Vs. The St ate of U.P. Air 1972(SC) 110 held:

The circumstances forming evidence must be conclusively established and even when so established they must form such complete chain that is not only consistent with the guilt but it is inconsistent with any reasonable hypothesis of innocence.
 
In the case of State Vs. Khasru alias Syed Mostafa Hossain and another 43 DLR(AD)182 held:

Circumstantial evidences-Its conclus-iveness- assessment of evidence- This is a case in which a minor boy, the victim of murder, was called away by and seen in the company of the two young accused for the last time before disappearance and then sometime thereafter the body of the victim was found out. The fact of calling away of victim Khairul by accused Khasru was satisfactorily established as the first circumstance in support of the prosecution and witnesses have also satisfactory proved that the victim traveled with the two accused from their village Noapara to a distant place called Takerhat by bus and got down there at 4-00/4.30 PM. On 04-01-1979. This is the second circumstance proved against the accused. From this point onward upto the time of recovery of the body Khairul at about 3.00/3.30 p.m. on the following day the accused were alleged to have been along with the deceased, the third  circumstance in the absence of ocular evidence of murder, by PWs. 11 & 12. The High Court Division rejected their evidence due to apparent contradiction between their evidence and the statement made by them before the police and also for the reason that their identification of the accused in the TI parade had lost all significance in view of the fact that they had chance to see the accused. There has been no violation of any norm or procedure in assessing the evidence of the said two witnesses for which the finding of fact made by the High Court Division could be disturbed. The position therefore comes to this that the third circumstance, that of, seeing the three boys together near the bank of the river where the victim’s body was found was not satisfactory established. The circumsta-nces of the case can never be said to be conclusive as to the guilt of accused Khasru and his brother Nowab. The High Court Division has correctly applied the rule as to circumstantial evidence in the facts of the present case.”
 
These view receive support in the case of Abdus Samad Vs. The State 16 DLR(SC) 261, Anisur Rahman and others Vs. The State 1986 BLD(AD)77, 1987 BCR(AD)187, Taslimuddin alias Tasir Vs. The State 44 DLR 136 and the cases reported in 11 DLR(SC) 365, PLD 1956 SC 286, 33 DLR 402. Nuru and another Vs. The State 1 BLC-582 (Para-14).
 
In the case of the State Vs. Khasru alias Syed  Mostafa Hossain and another 43 DLR(AD) 183 held:

“Murder charge resting on circumst-antial evidence-Accused’s motive in calling out and accompanying the victim boy- There is absolutely no material on record to show that anybody had at any stage expressed any suspicion that the accused might have had any evil motive in calling out he victim. All that the father said at the trial was that the motive for murder was to give him pain. This is no motive. He did not say why the young accused would cause him pain. There is also no material to suggest even that there might have been some immediate and on-the–spot reason for the accused to cause violence to the victim or that they were acting at some others’ behest.”
 
On appraisal of the evidence on record we find that deceased Sohel was called away by accused Badu and both were lastly seen at the evening i.e. on 18-07-2002 at 7:00 p.m. The prosecution tried to make a nexus between the accused Badu and the crime of murder by one pair of Sandal which was allegedly belonged to Badu but surprisingly we find that at the time of examination of accused Badu under Section 342 of the Code, attention to such incriminating evidence i.e. Sandal was not drawn to him. In our view the same seriously prejudiced the accused and he was denied to explain his position in respect of nexus between the last seen and recovery of the dead-body and also with the crime of murder.
 
The learned Judge of the Court below relied on the testimony of PW-8 Md. Repon Mia that two pairs of sandal one belonged to accused Badu were recovered.  “Therefore, the recovery of sandal links appellant Badu with the crime”. The learned Sessions Judge, however, omitted to mention the implication of the sandal. It is unfortunate that one of the important items for linking up the accused with the crime, namely, the sandal was not at all put to the accused as a circumstance appearing in the case against him. In the similar case in Sarwan Singh Rattan Singh  Vs. State of Punjab reported in A.I.R. 1957 (SC) 637, the Indian Supreme Court considered the implication of such omission. It was observed “Unfortunately, in his examination under Section 342 of the Code, no question had been put to Sarwan Singh about those shoes. It is not unlikely that Sarwan Singh may have offered to demonstrate that the shoes did not fit in with his feet.” In any event, failure to give him an opportunity to explain the circumstances in h is examination under section 342 of the Code justifies the defence argument that this circumstance should not be used against him.
 
In the case of Mizazul Islam alias Dablu Vs. The State 41 DLR(AD) 157 held:

One of the important items for linking up the accused with the crime namely the sandal was not at all put to the accused as a circumstance appearing in the case against him while he was examined u/s. 342 Cr.P.C.
 
Therefore, we hold that the prosecution failed to prove the charge against the condemned prisoner beyond all reasonable doubt.
 
We find that the learned Judge convicted the other six co-accused namely–Yunus, Zia, Mizan, Hanif, Anwar Hossain and Kader relying on the confession made by accused Tota Mia (since acquitted). For the convenience of understanding the material excerpt of the said confession reads as hereunder:

তোতা  মিয়াঃ আমার নাম তোতা মিয়া, পিতা মৃত চান মিয়া, গ্রাম-কাজীরগাওঁ, থানা সোনারগাওঁ, আমি ঘটনার দিন আদমজী মি­ল ই.ই. ডিউটি­ত ছিলাম। রা­ত ডিউটি  ক­রতে লাঙ্গলবন্দ যাই। আমার ভাতিজা আনার এর দোকান  গে­ল আনার আমা­ক জানায় যে, আমার ছে­ল বদু মৃত সো­হল­ক গতকাল সন্ধ্যা সময় বাড়ী হ­ত ডে­ক আনে। ঐ সময় ব্রম্মপুত্র নদীর পা­ড়  চ­ক আসামী আশু, সিরাজ, ছা­মদ, কাদির, আনার, হানিফা, জিয়া, মিজান, ইউনুছ  পিকনিক  খাই­তছিল। সো­হল­ক ডে­ক আনার প­র আসামীরা ট্রলা­র ক­র নি­য় যায়। প­র শুনি সো­হল­ক আসামীরা মে­র  ফে­ল। বৃহস্পতিবার রা­ত সো­হল­ক  মে­র ফে­ল।  রবিবা­র  সো­হ­লর  লাশ গা­ঙর  মা­ঝ পায়। আমার ছে­ল বদু বাড়ী­ত   চ­ল আ­সে।  আমার ছে­লের বন্ধু ছিল সো­হল। সো­হল­ক দি­য় আসামীরা ডে­ক নেয়।  আমি প­র বাড়ী­ত  না গি­য়  আমার মে­য়র বাড়ী­ত যাই। আমার মে­য়ও  আমা­ক  একই ঘটনা  জানায়। গত বর্ষায় সো­হেল­কে মে­র ফে­লে।   আসামী­দর সা­থে আসামী­দর শত্রুতা  থাক­ত পা­রে। এই আমার জবানবন্দি।
                                    স্বাক্ষর/- তোতা মিয়া
Signature or mark of the accused.”|
 
From appraisal of the evidence on record we find that there is absolutely no evidence against those six co-accused save and except their names were disclosed in the confession of accused Tota Mia. We also find that there is no substantive corroborative evidence against those accused. So the said confession should not be used against them.

It is well settled that the confession of an accused is not a substantive piece of evidence against co-accused who did not confess and such evidence alone without any substantive corroborative evidence cannot form basis of conviction of co-accused. With this regard reliance is being placed in this case of Mofazzal Hossain alias Mofa and others Vs. State 58 DLR-524. This view receives support in the cases of State Vs. Rafiqullah Khan 7 BLC-480, Ustar Ali Vs. State 3 BLC (AD)53, Lutfurnahar Vs. State 27 DLR(AD)29, Babor Ali Molla Vs. State 44 DLR(AD)10, State Vs. Lalu Mia 39 DLR(AD)117, Amir Hossain Vs. State 37 DLR(AD)179, Joygun Bibi Vs. The State 12 DLR(SC) 156.

Therefore we hold that the learned Judge without considering the settled principle of law and the materials and evidence on record most erroneously convicted them which cannot be sustained.

The explanation given under the section includes within the term “offence” used in the section, the abetment or attempt to commit the offence. The language of the section does not render the confession of a co-accused as evidence within the definition of section 3 of the Evidence Act. It simply says that the Court may “take into consideration such confession”. In the case of Bhuboni Sahu Vs. The King, reported in L.R.76 Indian Appeals page 147, the Privy Council stated as follows:

“But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. Section 30, however, provi-des that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.”

In view of the observation above, the questions arose in what way can a confession be used in support of other evidence and whether it can be used to fill in missing gaps. The questions were considered by the Supreme Court of India in the case of Kashmira Singh Vs. State of Madhya Pradesh, reported in 1952 S.C.R.(India) 526. After referring approvingly to the observations made by Sir Lawrence Jenkins in the case of Emperor Vs. Lalit Mohan Chockerbutty, reported in (1911) I.L.R.38 Calcutta, 559 at 588 where it was said that such a confession can only be used to “ led assurance to other evidence against a co-accused” and to the observation of Reilly, J. in re Periyaswami Moopan reported in (1931) I.L.R. 54 Madras, 75 at 77 that “where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in section 30 may be thrown into the scale as an additional reason for believing that  evidence”, the Supreme Court of India held as follows:

“The proper way to approach a case of this kind is first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise when the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”

We may as well refer to the views expressed by the Supreme Court of Pakistan is two cases. In the case of Joygun Bibi Vs. The State, reported in (1960) 12 DLR(SC)156 it was held that the High Court was not justified in discarding the confession of co-accused Abdul Majid, in connection with the question of the guilt of the appellant Joygun Bibi. It was found that confession of Abdul Majid was by no means the only material against Joygun Bibi but that there was other evidence which, along with the confession of Abdul Majid, pointed to her guilt.

In the case of Maqbool Hussain Vs. The State, reported in (1960) 12 DLR (SC) 217 the Supreme Court of Pakistan made the following observations regarding the use of a confession under Section 30 of the Evidence Act-

“The language of the section is very guarded and lends no warrant to the inference that such a statement made by a co-accused could be treated as substa-ntive evidence against the other person sufficient to sustain his conviction. It is well settled that there ought to be other evidence, whether direct or circumsta-ntial, linking such a person with the crime. Before a confession made by a co-accused could be adverted to, in adjud-ging the guilt of that person.”

The upshot of the discussions above is that confession of an accused cannot be treated as substantive evidence against another accused but that it can only be used “ to lend assurance to other evidence.”
In the instant case, there is no doubt that the above six appellants have been implicated in the murder in the confessional statement of co-accused, but the said confessional statement cannot be taken into consideration unless there exists independent evidence, direct or circumst-antial, to connect the appellants with the murder. There is no direct evidence in this case against them. So such confession should not be used against them.

In Indian Jurisdiction we find that while dealing with a case as regards the confession of co-accused affecting himself and some other persons who were being tried jointly with him for the same offence, their Lordships of the Supreme Court of India have laid down the law as follows:

“In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right,   AIR 1964 SC 1184.

In a case it has been observed as follows:

“In dealing with a case against an accused person, the Court can not start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then  it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in section 30, AIR 1949 PC 257+ AIR 1952 SC 159.

Under section 30, Evidence Act, confes-sion of a co-accused can only be taken into consideration but is not in itself substantive evidence. AIR 1957 SC 381+AIR 1964 AP 548.

Where such statement is exculpatory it cannot be used against another accused in support of his conviction. It would be dangerous to do so. AIR 1967. Goa 31 at p.25.

It has been laid down that confessions of co-accused are not evidence as defined in section 3 and no conviction can be founded thereon. But, if there was other evidence on which a conviction be based, they can be referred to as lending assurance to that conclusion and for fortifying it. AIR 1956 SC 56.

The law is well-settled that the confession of a co-accused is not substantive evidence in the sense that conviction on that alone must stand and section 30 has merely given the Court a discretion to call it in aid inappropriate case. It can be used only for lending assurance and is to be merely an  element in considering the evidence in the case. If there is no other evidence or if the other evidence in the case is insufficient to establish the case against the accused, the confession cannot betaken into consideration against the co-accused. It cannot be called in aid to supplement evidence otherwise insufficient and in no case can  it be used to fill up gaps in the prosecution evidence. AIR 1957 A.P. 758 + AIR 1952 SC 139 + AIR 1956 SC 56+AIR 1957 Orissa 172.

The confession of a co-accused person can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. AIR 1952 SC 159+AIR 1964 SC 1184+AIR1965 Orissa 170.

A confession can only be used to “lend assurance to other evidence against a co-accused AIR 1966 Pat. 448.

Their Lordships held that one of the conditions in section 30 of the Evidence Act is that the confession must implicate the maker substantially to the same extent as the other accused against whom it is sought to be taken into consideration. Where he was really trying to throw the main blame on the other accused and make out that he was an unwilling spectator to the crime committed by the other accused, the confession cannot be used at all against the other accused. But because there was differences between his confession and the confessional statement of the other accused, the confessional statement cannot be condemned in limini. AIR 1957 SC 216+(1966) 142 Cut LT 1140.

The confessional statement made by one accused could only be taken into consideration against other co-accused if there is other acceptable evidence against the other co-accused for the purpose of lending further assurance which the Court may need. Hence in the absence of any other evidence in this case the confessional statement made by any one of the co-accused cannot be used against the other appellants AIR 1964 SC 1184+1977 Crl.LJ 1309।

The confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based, they can be referred to as lending some assurance to the verdict. AIR 1956 SC 56+AIR 1968 SC 832.

The learned Judge also convicted the aforesaid six accused considering their absconsion, the prosecution also tried to make nexus between the absconsion and the crime of murder.

According to the submissions from prosecution and observations made by the learned Judge, it indicate that those accused remained absconding from the place of occurrence for certain period, which is a circumstances leading to the inference of guilt. In our view it is mere submissions and observations of the Court below. The prosecution measurably failed to establish by evidence that soon after the occurrence, the accused had any responsibilities to discharge their duties towards the occurrence. It is well settled that mere abscondence cannot always be a circumstances leading to the inference of guilt of the accused. In this case, there is no evidence against the accused. Hence their subsequent abscondence cannot be treated as a circumstances leading to the inference of involvement in the crime. Mere abscondence cannot always be a circumstances which should lead to an inference of guilt of the accused. Sometimes out of fear and self respect and to avoid unnecessary harassment even an inno-cent person remain absconding for sometime.

It is well settled that abscondence of an accused is not conclusive proof of his guilt and cannot be the sole basis of his conviction without any corroborative evidence. In the case of Ashraf Ali Munshi vs. State, 48 DLR 590, it is held that the accused absconded soon after the crime is not conclusive evidence of guilt. It may lend weight to other evidence. Same view was taken in the cases of Shahjahan vs. State, 46 DLR 575, State vs. Balai Chandra Sarker, 47 DLR 467, State vs. Sree Ranjit Kumar Pramanik, 45 DLR 660, Abdul Khaleque vs. State 45 DLR 75, Sanwar Hossain vs. State, 45 DLR 489, Abdus Salam vs. State 1994 BLD 99 and State vs. Badsha Molla, 41 DLR 11. 

Monsur Ali Vs. The State 13 BLC 196, State Vs. Mofijuddin 4 BLD-481=10 BLC-93, State Vs. Lalu Mia, 39 DLR (AD)117, 45 DLR 660, Ali Vs. Crown 6 DLR (W.P.)52, Rahman Vs. The State of U.P. AIR 1972(SC)110, Shajahan Vs. The State 46 DLR-575, Mojibur Rahman Vs. The State 13 MLR-88. In the instant case abscondence of six accused from beginning is not conclusive proof of their guilt, it cannot be the sole basis of their conviction as there is no other evidence against them.

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 produced, 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 murder. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.

It is pertinent to point out that the learned Judge convicted one set of accused and acquitted other set over the selfsame of evidence on record. There is no mis-match or distinction between the acquitted accused and the convicts so far as the ocular testimony is concern. The eye witnesses having been disbelieved against one set of accused should not be believed against other set without any independent corroboration.
It is true that crime like murder is shocking in nature and also, revolting. The Crime is against Society and humanity, but the prosecution convicted the accused merely on suspicion that the accused committed the murder. There cannot be conviction for murder on mere suspicion or presumption. The commission of murder must be proved. The presumption cannot take the place of positive evidence, (1970 P. Crl. L.J.-166).
It further appears to us that the instant case is absolutely a case of no evidence but the Court below without any legal evidence convicted the accused in moral view. Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence.

The accused was convicted merely on suspicion without any legal evidence. To that end in view, law is now well settled that suspicion or doubt however strong it might be cannot take place of evidence or there be slightest doubt as to the involvement of the accused in the crime, he cannot be convicted. With this regard reliance are being placed in the cases of Abdul Haq and others  Vs. The State 14 BLT 485, Fazu alias Fazlur Rahman Vs. The State 1 BLC 558, Rekatfullah Vs. The State 13 DLR-750. It is further held in the case reported in AIR 1921(PC) 69, that the decision of the Court must rest upon legal ground established by legal testimony from the prosecution.

Moreso in all respect, the convict is also entitled to benefit of doubt. In the case of Safder Ali Vs. Crown 5 DLR(FC) 107 held:

In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prose-cution case. In these circumstances, the accused is entitled to benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt”.

So, there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime of murder. 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 circumstances of the case. Therefore, the submissions advanc-ed by the learned Deputy Attorney General are not the correct exposition of law. Therefore, we are unable to accept his submissions. On the contrary submissions advanced by the learned Counsels for the defence prevail and appear to have a good deal of force.

In the light of discussions made above and the preponderant judicial views emerging out of the authorities refer to above, we are of the view that the impugned judgment and order of conviction and sentence suffer from legal infirmities which calls for interference by this Court. Thus the reference having no merit fails and all the appeals having merit succeed.

In the result:-
  1. Death reference No. 66 of 2006 is rejected.
  2. The impugned Judgment and order of conviction and sentence dated 30-07-2006 passed by learned Sessions Judge, Narayangonj in Session Case no. 194 of 2005 is hereby set aside and the accused are acquitted from the charge.
  3. Let the condemned prisoner Badiuz-zaman alias Badu be set at liberty if not detained in any other case.
  4. The appellants who are on bail are discharged from the bail bond.
  5. Accordingly all the appeals are allowed.
The Office is directed to send down the records at once.
 
Ed.