The State Vs. Md. Golam Sarwar @ Ripon [4 LNJ (2015) 170]

Case No: Death Reference No. 114 of 2008

Judge: Quamrul Islam Siddique,

Court: High Court Division,,

Citation: 4 LNJ (2015) 170

Case Year: 2015

Appellant: The State

Respondent: Md. Golam Sarwar @ Ripon

Subject: Burden of Proof, Child Witness, Abetment of Suicide,

Delivery Date: 2014-05-21


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Quamrul Islam Siddique, J.
And
A. K. M. Zahirul Hoque, J
 
Judgment on
11.05.2014, 12.05.2014, 14.05.2014, 15.05.2014 and 21.05.2014
  The State
-Versus-
Md. Golam Sarwar @ Ripon
. . .Condemned Prisoner
 
Evidence Act (I of 1872)
Section 106
In order to make the husband liable for the death of his wife it also needs to prove that husband was present at home at the relevant time of the death of his wife.
In a wife’s killing case the husband is under an obligation to explain how his wife met with her death. But to make the husband liable for the death of his wife, the minimum fact that must be brought on record that the husband was present at home at the relevant time.             . . . (77)
 
Evidence Act (I of 1872)
Sections 103 and 106
The burden is on the shoulder of the accused to prove the special plea of alibi by adducing evidence.
If an exception is pleaded by an accused the onus is upon him to prove such plea. Sections 103 and 106 of the Evidence Act clearly indicate that under the law an obligation is cast upon the accused to prove the special plea of alibi by adducing evidence.             . . .  (82)
 
Evidence Act (I of 1872)
Sections 101 and 106
In wife killing case prosecution is also liable to prove beyond reasonable doubt that accused was present in the place at the time of occurrence.
Though in a wife killing case, the condemned prisoner is liable to explain how his wife met with death, the prosecution is equally respon-sible to prove the case beyond doubt and the prosecution is also responsible to prove that the accused was present at the place of occurr-ence when the occurrence took place.     ...  (83)
 
Evidence Act (I of 1872)
Section 106
In the absence of any evidence that the condemned prisoner was present at the place of occurrence when the occurrence took place, it is difficult to hold that none else but the condemned prisoner is responsible for killing of his wife.                                            . . . (84)
 
 Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000)
Section 11(Ka)
Demand of dowry is the precondition to attract section 11(ka) of the Ain.
If the death is caused for demand of dowry, it will come within the mischief of section 11(Ka) of the Ain. . . .  (91)
 
Evidence Act (I of 1872)
Section 118
In law the testimony of a child witness cannot be relied upon without prudent corroboration and such corroboration is absent in the present case.  . . . (96)
 
Evidence Act (I of 1872)
Section 118
When the question of awarding death sentence comes, the responsibility rests upon the court to sift the evidence of a child witness with full care.  . . .(98)
 
Evidence Act (I of 1872)
Sections 3 and 118
We have seen that the evidence of P.W. 2 has not been corroborated by any other witness. Therefore, it will not be proper to award death sentence believing the solitary un-corroborative evidence of P.W. 2 who is a child witness.  . . . (98)
 
Penal Code (XIV of 1860)
Sections 302 and 306
Code of Criminal Procedure (V of 1898)
Section 376
This court is competent to convert the case into suitable section of the Penal Code and dispose of the appeal on its merit. ...(101)
 
Penal Code (XIV of 1860)
Sections 107 and 306
If the husband created a situation for which the wife was compelled to commit suicide, the husband becomes liable for the abetment of offence of suicide by the wife.
First the accused had a paramour. P.W. 2 stated that on the night of 17.01.2003 her father mercilessly beat her mother. The post mortem report also shows that there are 7 injuries on the persons of the deceased. All these facts and circumstances show that the husband created a situation for which the wife was compelled to commit suicide. In fact, in the present case we find that the husband abetted the commission of offence of suicide by the wife. Therefore, in our view, this case falls within the mischief of section 306 of the Penal Code.  . . .(102)
 
Abu Taher Chowdhury and others Vs. The State, 11 BLD (AD) 2; Mahbub Alam Vs. The State, 15 BLD (AD) 54; Md. Ali Haider Vs. The State, 40 DLR 97; Nowsher Mollah Vs. The State, BLD 295; Rashid Ahmed Vs The State, 10 DLR 532=PLD 1959 181; Gadu Mia Vs The State, 44 DLR 246; Abdul Motleb Howlader Vs The State, 5 MLR (AD) 362= 6BLC(AD) 1; Ilias Hussain (Md) Vs. The State, 54 DLR (AD) 78; State Vs. Kalu Bepari, 43 DLR 249; Abul Hossain Vs The State, 14 MLR (AD) 30; State Vs. Khadem Mondal, 1996 BLD (AD) 228; The State Vs. Khadem Mondal, 1990 BLD (AD) 228; Government of the People’s Republic of Bangladesh Vs. Md. Shafiqul Islam alias Rafique and another, 43 DLR (AD) 92; The State Vs. Mofazzal  Hossain Pramanik, 43 DLR (AD) 65; State Vs Azizur Rahman alias Habib, 20 BLD-467; Sankey in Woolmington Vs Director of Public Prosecutions, 1935 AC 462; The State Vs. Bahar Miah, 56 DLR 455; State Vs. Eunus  Kha, 5 BLC 353; State Vs. Mannan Gazi, 6 BLC 187 and Asiman Begum Vs. State, represented by the Deputy Commissioner 51 DLR (AD)18=3MLR (AD) 286 ref.
 
Mr. Shankor Kumar Sen,
The State Defence Lawyer (In Death Reference No. 114/2008)
 
Mr. Sarwar Ahmed, Advocate
. . . For the accused-appellant
Mr. Md. Jafor Imam, Advocate with
Mr. Md. Bahar Uddin Al-Raji, Advocates (In Jail Appeal No. 999 of 2008)
 
Death Reference No. 114 of 2008 with Jail Appeal No. 999 of 2008.
 
JUDGMENT
Quamrul Islam Siddique, J.
 
The learned Judge of Nari-0-Shishu Nirjatan Daman Tribunal No. 1, Dhaka referred this matter of death sentence for confirmation under section 374 of the Code of Criminal Procedure (shortly, Cr. P.C) to this Court. The reference has been numbered as Death Reference No. 114 of 2008.
 
The learned Judge of Nari-0-Shishu Nirjatan Daman Tribunal No. 1, Dhaka found the condemned prisoner, namely, Md. Golam Sarwar @ Ripon guilty of the charge under section 11(Ka) of the Nari-0-Shishu Nirjatan Daman Ain, 2000 and convicted and sentenced him thereunder to death in Nari-0-Shishu Nirjatan Daman Case No. 569 0f 2003, arising out of Savar P.S. Case No.43 of 2003 corresponding to G.R. No. 113. 
 
The Death Reference No. 114 of 2008 with Jail appeal No. 999 of 2008 have been heard together and are being disposed of by this common judgment. 
 
The prosecution case, in short, is that, the victim  Maksuda Akhter Moni @ Sonia was given in marriage to the condemned prisoner Md. Golam Sarwar on 24.06 1993. After marriage, the condemned prisoner used to demand dowry now and then. For the shake of peace in the family, the informant paid Tk. 25,000/ and Tk. 30,000/ in two occasions, total Tk. 55,000/- to the condemned prisoner. But again the condemned prisoner demanded dowry of Tk. 50,000/- and he used to create pressure upon the deceased for dowry now and then. The informant’s sister (deceased) informed this matter to the Unit Deputy Leader of Savar Cantonment and the Unit Deputy Leader settled the matter between the deceased and the condemned prisoner. Again, the condemned prisoner became interested for his paramour (accused No. 2 Most. Sumi Akhter, since acquitted) and at the instigation of accused No. 2, the condemned prisoner assaulted his wife (deceased) mercilessly on the previous night of the occurrence. On the following day at 9.00 A.M, the deceased informed to the Unit Deputy Leader of Savar Cantonment that she was assaulted and Unit Deputy Leader called the accused and Maksuda Akhter Moni @ Sonia (since deceased) in his office, revoked the condemned prisoner and settled the matter and asked them to go home back. Thereafter, they came back home. The condemned prisoner confined the deceased in a room, beat her and killed her by way of strangulation. In order to divert the allegation of killing, the condemned prisoner hanged the dead body of the deceased with the ceiling fan. Thereafter, one U. D. Case No. 2 of 2003 dated 18.01.2003 was recorded and on the basis of that U.D. Case, inquest report and post mortem reports were prepared. On hearing the news, the informant went to the place of occurrence. He came to know about the occurrence from Shammi Akhter Shova (P.W. 2), daughter of the deceased and the condemned prisoner and also from surrounding people. Thereafter, he brought the dead body to his house and buried her. He then went to the police station for lodging the F.I.R. but police refused to take the F.I.R. Thereafter, he filed a petition of complaint before the Nari-0-Shishu Nirjatan Daman Tribunal, Dhaka.
 
The learned Judged of the Nari-O-Shishu Nirjaton Daman Tribunal sent the petition of complaint to the Thana and directed to treat the same as F.I.R.
 
On the basis of the aforesaid F.I.R, police recorded the Savar Police Station Case No. 43 dated 24.02.2003 under section 11(Ka) /30 read with section 201 of the Code of Criminal Procedure.
 
Md. Firoj Talukder, Sub-Inspector of police, Savar police station took charge of the investigation of the case.
 
During investigation he visited the place of occurrence, prepared the sketch map with separate index thereof, examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure and finally submitted charge sheet against the accused as a prima facie case was made out against them.
 
During trial the learned Judge of the Nari-0-Shishu Nirjatan Daman Tribunal No.1, Dhaka framed charge against the condemned prisoner and accused Most. Sumi Akhter under section 11(Ka) and 11(Ka)/30 of the Nari-0-Shishu Nirjatan Daman Ain, 2000. The charge was read over and explained to the accused to which they pleaded not guilty and claimed to be tried.
 
After close of recording of the evidence, the accused were examined under section 342 of the Code of Criminal Procedure and this time also they repeated their innocence.
 
The defence case as it transpires from the trend of cross-examination of the prosecution witnesses is that of innocence. Further case of the defence, is that, the deceased committed sui-side and the condemned prisoner was not involved in this case.
 
To bring home culpability against the accused, the prosecution has examined as many as 11 witnesses in this case. The defence however, did not examine any witness.
 
Considering the facts , circumstances and the evidence on record the learned Judge of the Nari-0-Shishu Nirjatan Daman Tribunal No.1, Dhaka found the condemned prisoner guilty of the charge under section 11(Ka) of the Nari-0-Shishu Nirjatan Daman Ain, 2000 and convicted and sentenced him to death.
 
The learned Judge of the Nari-0-Shishu Nirjatan Daman Tribunal No.1, Dhaka, however, found accused Most. Sumi Akhter not guilty and acquitted her of the charge.
 
Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence dated 30.10.2008, the condemned prisoner has preferred Jail Appeal No.999 of 2008. The condemned prisoner has also been provided with the State Defence Lawyer as per the provisions of Legal Remembrancer’s Manual, 1960.
 
Dr. Md. Bashirullah, learned D.A.G, Mrs. Yeadia Zaman, learned A.A.G. and Mr. Md. Shamim Ahsan, learned A.A.G. appeared on behalf of the State. Mrs. Yeadia Zaman, the learned Assistant Attorney General supporting the reference and opposing the Jail Appeal No. 999 of 2008 first took us through the F.I.R, charge, evidence on record, statement of Most. Shammi Akhter Shova (P.W. 2) under section 164 of the Code of Criminal Procedure, inquest report, post mortem report and other relevant papers. She then submits as under:
  1. this is a wife killing case and that the deceased died in the house of her husband;
  2. the husband did not give any satisfactory explanation as to how his wife meet with death;
  3. since the wife died in the house of her husband, the irresistible conclusion is that none else but the husband killed his wife.
  4. The prosecution has been able to prove the case against the condemned prisoner beyond reasonable doubt and that the learned Judge of the Tribunal has correctly convicted and sentenced the accused to death and there is no good ground to interfere with the impugned judgment and order dated 30.10.2008 passed by the learned Judge of the Nari-0-shishu Nirjatan Daman Tribunal No.1, Dhaka by this court.
 
With these few wards the learned A.A.G. prays for acceptance of the reference and dismissal of the Jail Appeal No. 999 of 2008.
 
The learned A.A.G. also refers to the following cases:
  1. Abdul Quddus Vs the State, reported in 43 DLR (AD) 234;
  2. the State Vs.Ful Miah, reported in 5 BLC (AD) 41;
  3. Abul Hossain Vs. The State, reported in 14 MLR (AD) 31;
  4. Elias Hossain Vs. The State, reported in 54 DLR (AD) 78 and
  5. Sk. Moksed Ali Vs. the State, reported in 10 MLR (AD) 27.
 
We shall take account of the above cases later.
 
Mr. Sarwar Ahmed, the learned Advocate appearing on behalf of the condemned prisoner in Jail Appeal No. 999 of 2008 opposed the reference and supported the Jail Appeal No. 999 of 2008, Mr. Baharuddin Al-Raji, the learned Advocate appearing on behalf of the condemned prisoner in Jail Appeal No. 999 of 2008 prayed rejection of the reference and allow the Jail Appeal No. 999 of 2008. However, Mr. Sarwar Ahmed submits as under:
  1. this is a case under section 11(Ka) of the Nari-0-Shishu Nirjatan Daman Ain, 2000, and that the demand of dowry has not been proved by the prosecution and as such the conviction and sentence to death given by the Tribunal cannot sustain in law;
  2. in fact, the present case is a case of no evidence and that the learned Judge of the Tribunal convicted and sentenced the condemned prisoner merely on surmise and conjecture;
  3. the learned Judge of the Tribunal believing the solitary evidence of P.W. 2, namely, Shammi Akhter Shova, who is minor girl of 9 years, convicted and sentenced the condemned prisoner the highest punishment of death;
  4. in law the testimony of a child witness can be taken into consideration only when corroborative evidence is available, but in the instant case such corroborative evidence is totally absent;
  5. in a wife killing case, the minimum the prosecution is required to prove is that the husband was present in the place of the occurrence, at the time of occurrence but in the instant case there is no evidence on record to show that the husband was present at the place of occurrence, when the occurrence took place;
  6. according to the post mortem report the deceased committed suicide and there is nothing to disbelieve the expert opinion, that is, the opinion of the doctor in the present case.
 With these few wards the learned advocate prays for rejection of the reference and allow the jail appeal.
 
The learned advocate also refers to the case of this following cases:
  1. Abu Taher Chowdhury and others Vs. the State, reported in 11 BLD (AD) 2;
  2. Mahbub Alam Vs. the State, reported in 15 BLD (AD) 54;
  3. Md. Ali Haider Vs. the State, reported in 40 DLR 97 and
  4. Nowsher Mollah Vs. the State, reported in BLD 295.
 We shall discuss the decisions of the above cases later.
 
Now let us analyse and sift the evidence of the prosecution witness to ascertain how far the prosecution has been able to prove the charge against the condemned prisoner.
 
We have already stated that the prosecution has examined as many as 11 witnesses in this case.
 
P.W. 1 is Md. Enayet Hossain. He is the informant and brother of the deceased. He stated that he was serving in Zila Parishad, Barisal. The condemned prisoner is his sister’s husband. His sister was given in marriage to the condemned prisoner on 24.06.1993. After marriage, the condemned prisoner used to demand dowry and for their happiness he (P.W. 1) gave Tk. 55.000/- in two installments to the condemned prisoner as dowry. But the condemned prisoner did not stop demanding dowry. Two daughters were born out of their wedlock. The elder daughter is Shova, nine and half years old (P.W. 2) and another daughter is Oishi, three and half years old. The accused used to demand dowry now and then. The condemned prisoner was serving in the army. On 17.01.2003, the condemned prisoner demanded dowry to the tune of Tk. 50,000/- and mercilessly assaulted the deceased. On 18.01.2003 at 9.00 A.M, his sister (deceased) made a complaint before the army authority. The army officer called the condemned prisoner and the deceased and settled the matter and sent them to their house. The officer rebuked the condemned prisoner and they came home and the condemned prisoner confined his wife in a room and beat the victim mercilessly and he also pressed the neck of the victim. At that time two daughters were kept confined in an adjacent room. The father of the condemned prisoner, namely, Md. Akkas Ali Howlader and one woman, namely, Most. Shumi Akhter were present there. There was illicit relationship between the condemned prisoner and Most Shumi Akhter and the condemned prisoner killed the deceased and hanged her with the ceiling fan. On 18.01.2003 at 12.00 noon, the accused killed the deceased by pressing her neck and hanged her with a ceiling fan. Shammi Akhter Shova (P.W. 2) saw the accused killing his wife. This P.W. 1 received the information on 19.01.2003 when he was serving in Barisal. One army officer also informed him about the occurrence and on 19.01.2003 he came to the house of his sister at night and came to know about the occurrence from his niece Shova (P.W. 1) and the surrounding people. The dead body was handed over to him and he received the dead body by putting signature on the paper. He proved the paper as Ext.1 and his signature therein as Ext. 1/1. He buried the dead body and thereafter he submitted petition of complaint before the Magistrate. He proved the petition of complaint which was marked as Ext. 2 and his signature therein as Ext. 2/1-4. He took the custody of the two minor girls and put his signature on the jimmanama which is proved and marked as Ext. 3 and his signature therein as Ext.3/1. He identified the accused on the dock.
 
The accused was tried by the army in accordance with the army rule and he was dismissed from service and he was convicted and sentenced to suffer rigorous imprisonment for one year.
 
Accused Most. Sumi Akhter was absconding and State Defence Lawyer was provided to her as per the provisions of the Legal Rembrancer’s Manual, 1960.
 
In cross examination by the State Defence Lawyer P.W. 1 stated that the victim was his full sister.
 
In cross examination by the condemned prisoner Md. Golam Sarwar @ Ripon he stated that he was serving in Zila Parishad, Barisal as M.L.S.S. and that his salary was at Tk. 3900/- per month. He also stated that it was difficult for him to maintain his family with his scanty income. He denied the suggestion that he had no ability to pay the dowry. He denied the suggestion that his sister was a woman of indomitable character. He also denied the suggestion that because of her uncompromising attitude his sister committed suicide. In cross-examination he also stated that he came to Dhaka on 19.01.2003 at 8.00/9.00 and lodged the petition of complaint on 26.01.2003. The police station refused to take his F.I.R. and as such he submitted the petition of complaint before the Magistrate. He denied the suggestion that the condemned prisoner did not assault his sister. He also denied the suggestion that because of his personal gain he took the jimma of two minor girls.
 
In further cross examination, he stated that after lodging the FIR, he heard the name of Akkas Ali Howlader, father of the condemned prisoner. He did not see the occurrence. He denied the suggestion that the statements made in the FIR was false.
 
P.W. 2 is Shammi Akhter Shova. She stated that the deceased was her mother and the condemned prisoner was her father. She gave statement before the Magistrate under section 164 of the Code of Criminal Procedure. She proved her statement as Ext. 4 and her signature therein as Ext. 4/1-2. They were staying in a quarter of Savar Cantonment. Her father had a quarrel with her mother on demand of dowry. On 17.01.2003, her father beat her mother. On 18.01.2003 at 9.00 A.M, her mother went to the army unit and the army officer called her father, rebuked him and settled the matter and sent them to their house. Her father confined them in a room with a packet of chanachur and went to bed room with her mother. She went near the bed room and saw that her father was inflicting blows upon her mother by the edge of a botti. She cried out and she left the place out of fear. One Sumi Akhter and her grand-father went to the bed room and her father closed the door. She saw through the hole of the door that her father pressed the neck of her mother and hanged her with the ceiling fan. Sumi Akhter and her grand-father caught her mother and hanged her with the ceiling fan. Thereafter, Sumi and her grand-father left the place. She immediately informed the matter to her aunty who was living in the 3rd floor. The maid servant of her aunty informed the matter to the Army Unit and some of the Army Unit people came to the place of occurrence. She identified the accused in the dock.
 
In cross examination she stated that she was a student of class-III and that she would listen everything whatever her Mama would say to her. She denied the suggestion that she stated everything in the court whatever her Mama taught her. She stated that her statement was true. She also stated that she gave statement before the Magistrate. She denied the suggestion that she deposed falsely. She also denied the suggestion that she deposed everything as per the dictation of her Mama.
 
The State Defence Lawyer cross-examined her. In cross-examination by the State Defence Lawyer, she stated that Sumi and her grand-father pressed the bell and his father opened the door. She also stated to the Magistrate that her father hanged her mother. She denied the suggestion that her mother committed suicide. She also denied the suggestion that she did not see anything from the hole of the door. She also stated that after the death of her mother she did not go to the army office. She also denied the suggestion that she deposed falsely.
 
P.W. 3 is Ms. Beni Begum. She stated that she was aged about 25 years and she was a housewife. She does not know the informant but she knew the wife of the condemned prisoner. She was her neighbour. She cannot remember the date of the occurrence. She was in the kitchen. At that time she heard hue and cry and went to the house of the deceased and saw that the deceased was hanging with a ceiling fan. She was hanged by a saree. She does not know who killed her or if she committed suicide.
 
In cross-examination she stated that her flat and the flat of the deceased were situated side by side. When she arrived at the place of occurrence, she did not see any male member there. The daughters of the deceased were present there. Before she went there Jafor bhabi (not examined) and Malek bhabi (P.W. 4) came there. On hearing hue and cry she went there. Police examined her under section 161 of the Code of Criminal Procedure on the date of the occurrence. She denied the suggestion that she did not hear any hue and cry nor did she see the dead body was hanging.           
 
In cross-examination by the State Defence Lawyer on behalf of Sumi Akhter she stated that she did not know Sumi Akhter and she did not see Sumi Akhter. She also stated that she did not know if Sumi Akhter did anything.
 
P.W. 4 is Most. Omenalara Khatun. She stated that she was aged about 35 years and she was a housewife. She knew the condemned prisoner. The condemned prisoner and her family used to reside in the same building. She used to reside in the ground floor and the condemned prisoner used to reside in the first floor. The occurrence took place 2(two) years ago, but she could not remember the date. The occurrence took place at 12.00 noon. She was in her kitchen for cooking. She heard hue and cry and went to the place of occurrence and saw that the deceased was hanging with the ceiling fan. P.W. 3 tried to unknot the saree and pull down the dead body of the deceased. She called Jafor for taking the victim to the hospital. She identified the condemned prisoner in the dock. She did not know accused Sumi. She did not know if the deceased had any quarrel with the condemned prisoner.
 
In cross-examination by the condemned prisoner she stated that she was not examined by the police. She also denied the suggestion that she did not call Jafor. She also stated that they would abide by the rules of army.
 
In cross-examination by the State Defence Lawyer she stated that she did not know Sumi Akhter. She also stated that she did not know if Sumi was involved in the occurrence.
 
P.W. 5 is Md. Forkan, A.S.I. of police. He stated that on 14.05.2003, he was posted in Bakergonj Police Station as A.S.I. He verified the name and address of the accused and one Akkas Ali Hawlader in connection with Savar P.S Case No. 43 dated 24.02.2003 and submitted report. He proved the report as Ext. 5 and his signature therein as Ext. 5/1. The defence declined to cross examine him.
 
P.W. 6 is A.S.I. Ashraf Ali. He stated that on 12.05.2003, he was posted in Nolchiti Police Station. He also verified the name and address of accused Sumi Akhter and submitted report. He proved the report as Ext. 6 and his signature therein as Ext. 6/1. The defence declined to cross examine him.
 
P.W. 7 is Constable Asaduzzaman. He stated that on 18.01.2003, he was posted at Savar Police Station. On 18.01.2003, he brought the dead body of the deceased to the Dhaka Medical College Hospital for post mortem examination. After completion of the post mortem examination, he handed over the dead body to the investigating officer.
 
In cross-examination by accused Md.  Golam Sarwar @ Ripon he stated that he brought the dead body to the Dhaka Medical College Hospital as per direction of the investigating officer. He stated that he handed over the dead body to the doctor but he did not know the name of the doctor. He denied the suggestion that he deposed falsely.
 
P.W. 8 is Taslima Kaniz Nahida, Magistrate. She stated that on 15.03.2003, she was posted in the Dhaka Collectorate as Magistrate, 1st Class. She recorded the statement of the witness Shammi Akhter Shova under section 164 of the Code of Criminal Procedure in connection with Savar P.S. Case No. 43(2)03 dated 24.02.2003. The statement was read over to Sammi and she put her signature therein. She proved the statement as Ext. 4 and her signature therein as Ext. 4/1. She also proved the signature of the witness Shammi as Ext. 4/1-2 and her signature therein as Ext. 4/3-4. She again stated that Shammi put her signature in her presence.
 
In cross-examination she stated that she did not know under whose custody Shammi was staying before she was brought before her (this P.W. 8) for recording her statement.  She does not know who brought Shammi before her. She denied the suggestion that she did not record the statement complying with the provisions of law. She also denied the suggestion that she did not read over the statement to the witness. In cross-examination by the State Defence Lawyer she stated that none was present when she recorded the statement of Shammi Akhter.

P.W. 9 is Md. Feroj Talukder, Sub Inspector of Police. He stated that on 24.02.2003, he was posted in Savar P.S. On 24.02.2003, as per direction of the Court, A.K.M. Abdullah Officer-in-Charge, recorded the case, filled up the FIR column. He proved the FIR as Ext. 7 and his signature therein as Ext. 7/1. He (P.W. 9) took up the charge of investigation. During investigation, he went to the place of occurrence, prepared the sketch map with separate index thereof, examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure, collected the post mortem report, arranged recording the statements of the witness Shammi Akhter Shova under section 164 of the Code of Criminal Procedure and submitted charge sheet No. 185 dated 25.03.2003 under section 11(Ka)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003) read with section 201 of the Penal Code as a prima-facie case was made out against the accused. He proved the sketch map as Ext. 8 and his signature therein as Ext. 8/1. He proved the index as Ext. 9 and his signature therein as Ext. 9/1.
 
In cross-examination, he stated that on 24.02.2003, he took up the charge of investigation. He also stated that he went to the place of occurrence on the date of occurrence. Subsequently, he stated that he did not go to the place of occurrence on the date of occurrence. He stated that he went to the place of occurrence at 3.00/3.30 hours after he took up the charge of investigation. He stated that the occurrence took place on 17.01.2003 and 18.01.2003. He examined Shammi Akhter Shova (P.W. 2) on the date he first went to the place of the occurrence. He first went to the place of occurrence on 24.02.2003. The FIR was lodged one month six days after the occurrence. At first an U.D. Case was recorded and the number of the U.D. Case was U.D. Case No. No. 2 of 2003 dated18.01.2003. He collected the report of U.D. Case. Sub Inspector Humayun Kabir submitted the report of U.D. Case. When he examined Shammi Akhter Shova she was staying in her father’s house. The statement of Shammi Akhter Shova was recorded on 15.03.2003 and the FIR was lodged on 24.02.2003. He denied the suggestion that Shammi Akhter Shova was under the custody of her mama (informant herein). He also denied the suggestion that he tutored Shammi Akhte Shova and obtained statement from her. The condemned prisoner did not flee away after the occurrence. He was confined under the military authority. The condemned prisoner was dismissed from service but he did not procure judgment passed by the Military Court. The place of occurrence is the quarter of the condemned prisoner. He did not seize alamats and he was not present when the alamats were seized. He also did not seize any fan. He denied the suggestion that he did not examine any independent witnesses. He examined the inquest report. The eyes of the deceased were closed. It has not been mentioned in the report that the face of the deceased was swelling. He denied the suggestion that it was not a case of asphyxia. During investigation he came to know that the condemned prisoner had illicit connection with Sumi Akhter. There is no documentary evidence to show that condemned prisoner married Sumi Akhter. In the inquest report it has been stated that there was sign of injuries on the persons of the dead body. He investigated the case on the basis of the F.I.R. He did not find any documentary evidence to prove that the condemned prisoner took dowry. No G.D. entry was lodged for the alleged allegation of torture by the accused to his wife. He denied the suggestion that he did not investigate the case properly. He denied the suggestion that it was a false case and as such he did not cite the mother of the deceased as witness in this case.
 
In cross-examination by the State Defence Lawyer on behalf of the accused Sumi Akhter, he denied the suggestion that if he would investigate the case properly, there was no scope to submit charge sheet against accused Sumi Akhter. He also denied the suggestion that he being biased submitted a false charge sheet against accused Sumi Akhter. He also denied the suggestion that the deceased committed suicide. He also denied the suggestion that accused Sumi Akhter had no illicit connection with condemned prisoner. On recall by the accused he stated that Sub-Inspector, Md. Humayun Kabir (P.W. 11) was not the I.O. in this case. He stated that an U.D. Case was recorded in Savar Police Station, but he did not collect the report of that U.D. case. He also denied the suggestion that the case was suicidal in nature. He also denied the suggestion that two daughters of the victim were under the custody of thier Mama (informant herein) since the occurrence. He did not seize fan, botti and chair. He did not also examine the military officer who pacified the quarrel between the condemned prisoner and the deceased. P.W. 3 Beni Begum stated to him that on the previous night there was a quarrel between the deceased and the condemned prisoner on demand of dowry. She also stated that witness Most.  Omenalara Khatun (P.W. 4) stated to him that on the previous night there was a quarrel between the condemned prisoner and the deceased. She also stated to him that one woman, named, Most. Sumi Akhter would go to the house of the condemned prisoner. This P.W. 9 also stated that the condemned prisoner was departmentally proceeded against and he was convicted and sentenced to suffer imprisonment for one year and he was dismissed from service also. The petition of complaint was filed before the tribunal one month 7days after the occurrence. It has been mentioned in the petition of complaint that the occurrence took place on 17.01.2003 and 18.01.2003. The name of Shammi Akhter Shova has been mentioned as witness in the petition of complaint. In the inquest report it has been mentioned that the tongue of the deceased was protruded, the eyes and the mouth were open. It has also been written in the inquest report that there is mark of injury in the neck. He denied the suggestion that as the condemned prisoner married to accused Sumi Akhter, the deceased committed suicide out of frustration.  He denied the suggestion that it was a case of suicidal and not homicidal. He denied the suggestion that his investigation was perfunctory.
 
P.W. 10 is Dr. Md. Mizanur Rahman. He stated that on 19.01.2003, he was serving in the Dhaka Medical College Hospital. At that time Senior Doctor Md. Mizanur Rahman held the autopsy of the dead body of the deceased. He knows the hand writing and signature of Doctor Mizanur Rahman. He proved the post mortem report as Ext. 10 and the signature of Dr. Mizanur Rahman therein as Ext.10/1. So far he knows, doctor Md. Mizanur Rahman is in Malaysia now.
 
In cross-examination, he stated that he did not submit the post mortem report. He did not also see the contents of the report. In the report there is no mention that the face of the deceased was swelling. The age of injury has not been mentioned in the post mortem report. He does not remember who helped Dr. Mizanur Rahman to prepare the post mortem report.
 
P.W. 11 is Md. Humayun Kabir. He stated that on 18.01.2003, he was serving in Savar Police Station as Sub-Inspector. On the direction of the Officer-in-Charge, he investigated the U.D. Case No. 2 of 2003. He prepared the inquest report of the deceased. The eyes of the deceased were closed. There was mark of injury in the left side of her neck. There was ecomysis in the back side of the neck. Mouth was open. There was ecomysis in the different parts of the body. He proved the inquest report as Ext. 11 and his signature therein as Ext. 11/1. Thereafter, he went to the bed room of the accused and seized one biscuit colour saree and a plastic chair. He proved the seizure list as Ext. 12 and his signature therein as ext. 12/1. The alamats were given in jimma to Lt. Abdur Rashid, Army Officer. He proved the jimmanama as Ext. 13 and his signature therein as Ext. 13/1. The saree of the deceased was produced before the Court which was marked as material Ext. 1.
 
In cross-examination he stated that no G.R. case was filed in the police station in respect of the occurrence. The petition of complaint was filed one month 7 days after the occurrence. The name of Shammi Akhter Shova has been mentioned as the only witness in the petition of complaint. He did not examine Shammi Akhter Shova under section 161 of the Code of Criminal Procedure. He did not examine any of the witnesses under section 161 of the Code of Criminal Procedure. He only investigated the U.D. case. He did not ascertain where the two minor daughters were staying after the occurrence. He examined Shammi Akhter Shova at the time of his visit to the place of occurrence but did not record her statement under section 161 of the Code of Criminal Procedure. He did not submit any report of the U.D. case. He does not know the contents of the U.D. case. During the period of his investigation, no departmental action was taken against the condemned prisoner. He did not seize fan, botti and chair. He does not know anything about the petition of complaint. He did not file any documentary evidence in respect of alleged illicit connection between the condemned prisoner and accused Sumi Akhter. He did not find any documentary evidence to show that the condemned prisoner demanded dowry. He denied the suggestion that the victim committed suicide. He also denied the suggestion that he deposed falsely being biased by the informant.
These are all the evidence adduced by the prosecution.
Now, in order to ascertain whether the prosecution has been able to prove the case against the condemned prisoner, let us now carefully analyse and scrutinize the evidence adduced by the prosecution.
Out of 11 P.Ws, P.W. 1 is Md. Enayet Hossain. He is the informant.
P.W. 2 Shammi Akhter Shova is the minor daughter of the deceased and the condemned prisoner. She is supposed to be the eye-witness to the occurrence.
P.W. 3 is the private witness and neighbor.
P.W. 4 is also a private witness and neighbor.
P.W. 5 is an A.S.I. He verified the name and address of the father of the condemned prisoner, that is, Akkas Ali Howlader.
P.W. 6 is also an A.S.I. of Police. He also verified the name and address of Sumi Akhter.
P.W. 7 is a Constable of Police who brought the dead body of the deceased to Dhaka Medical College Hospital for post mortem examination.
P.W. 8 is the Magistrate who recorded the statement of witness Shammi Akhter Shova (P.W. 2) under section 164 of the Code of Criminal Procedure.
P.W. 9 is Sub-Inspector of Police and he is the Investigating Officer.
P.W. 10 is Dr. Md. Mizanur Rahman. He proved the post mortem examination.
P.W. 11 is also a Sub-Inspector of Police. He investigated the U.D. Case No. 2 of 2003.
 
P.W. 1 is the brother of the deceased and he used to serve in Barisal Zila Parishad. He heard about the occurrence from P.W. 2 and local people and filed the petition of complaint one month 7 days after the occurrence. The occurrence took place any time before 12.00 O’clock on 18.01.2003. He stated that he paid Tk. 55,000/- as dowry to the condemned prisoner. On hearing about the incident, he came to Dhaka on 19.01.2003 and went to the Police Station on 26.01.2003. But the Police refused to record his FIR and thereafter on 28.01.2003 he filed the petition of complaint before the Court. P.W. 2 Shammi Akhter Shova is the most important witness in this case. At the time of the occurrence she used to study in class-III and she was 9 and half years old. She stated that on 17.01.2003, there was a quarrel between her father and the mother. Her father assaulted her mother. On the following day, that is, on 18.01.2003, her mother lodged a complaint before the army officer. The army officer settled the matter and sent them to their home. Her mother and father went to the bed room and they (this P.W. 2 and her sister) were staying at the adjacent room. She saw through the hole of the door that her father pressed the neck of her mother. She went on saying that Sumi Akhter and her grandfather helped her father to hang her mother with the ceiling fan. This statement of P.W. 2 has not been corroborated by any other witnesses. Police did not find any prima-facie case against the father of the condemned prisoner and accordingly police submitted final report against him. Again, Sumi Akhter has been acquitted by the Court. Therefore, the statement of P.W. 2 in respect of her grandfather and the accused Sumi Akhter that they helped her father to hang the body of her mother with the ceiling fan does not stand good. P.W. 2 informed the matter to her aunty who used to live in the 3rd floor of the same building. The unit people came there and pulled the dead body down. After the occurrence P.W. 2 was under the custody of the informant. The occurrence took place on 18.01.2003 and she deposed in the Court on 31.08.2004. Therefore, it appears that this P.W. 2 deposed before the Court one year 7 months after the occurrence and during this time she was under the custody of the informant. P.W. 2 was a child when she deposed before the Court. Law is clear how far a child witness can be relied upon. Section 118 of the Evidence Act gives in details who are competent to testify.

Section 118 of the Evidence Act reads as follows:
“All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender year, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”
 
The consistent view of the top Courts is that the evidence of a child witness can be taken into consideration as evidence by prudent corroboration of such witness. In the case of Rashid Ahmed Vs The State, 10 DLR 532=PLD 1959 181 it has been held that the evidence of a child witness is not reliable unless corroborated. The evidence of a child witness, direct or circumstantial, should not be relied upon unless it is corroborated.
 
Similar view has been held in the case of Gadu Mia Vs The State, 44 DLR246; In the case referred to above, it has been held as under:

“the competence of a child as a witness is beyond question. The only thing that requires to be done is to scrutinize his evidence with care and caution to see whether it suffers from any inconsistency. To base conviction upon his evidence it is prudent to seek corroboration”.
 
So, according to the above pronounc-ements, we are required to look for corroboration of the evidence of P.W. 2. P.W. 3 is the neighbor who came to the place of occurrence. Obviously she did not see the occurrence as she came to the place of occurrence after the occurrence was over. P.W. 4 also did not see the occurrence and she did not know who killed the victim. P.Ws. 5 and 6 are the A.S.I. of police. They verified the name and address of the accused. P.W. 7 is police constable who brought the dead body of the deceased to the Dhaka Medical College Hospital for autopsy. P.W. 8 is the Magistrate who recorded the statement of the witness, that is, P.W. 2, under section 164 of the Code of Criminal Procedure. P.W. 9 is the investigating officer. P.W.10 is the doctor but he did not prepare the post mortem report. He just knew the hand writing of doctor, Md. Mizanur Rahman who prepared the post mortem report. P.W. 11 is the investigating officer of the U.D. case. If we carefully analyse and scrutinize the above evidence of P.Ws, we do not get prudent corroboration of the evidence of P.W. 2. However, the learned Deputy Attorney General argues that since it is a wife killing case, the husband is required to explain how his wife met with her death. In support of his contention, the learned D.A.G refers to a case of Abdul Motleb HowladerVs The State, 5 MLR(AD) 362= 6BLC(AD) 1. In the case referred to above, the Appellate Division has held as under:

“It is well settled that ordinarily an accused has no obligation to account for the death for which he is placed on trial. The murder having taken place while the condemned prisoner was living with his wife in the same house he was under an obligation to explain how his wife had met with her death. In the absence of any explanation coming from his side it seems none other than the husband was responsible for causing death in question”.
 
In the case of Ilias Hussain (Md) Vs The State, 54 DLR (AD) 78, the Appellate Division has held as under:

“It is well settled that when a wife met with an unnatural death while in custody of the husband and also while in his house the husband is to explain under what circumstance the wife met with her death”.
 
Similar view has been expressed in the case of State Vs. Kalu Bepari, 43 DLR 249. In the case referred to above, a Division Bench of this Court has held as follows:-

“The murder having taken place while the condemned prisoner was living with his wife in the same house he was under an obligation to explain how his wife had met with her death. In the absence of any explanation coming from his side it seems none other than the husband was responsible for causing death of his wife.”
 
In the case of Abul Hossain Vs The State, reported in 14 MLR(AD) 30, it has been held as under:

“It appears that the victim was the wife of the accused petitioner who was done to death is in the house of the accused petitioner while the accused petitioner was present in the house. Therefore, the court below rightly held that the petitioner was under obligation to explain how his wife was done to death. ”
 
There is no controversy about the decisions cited above. However, the learned Lawyer appearing for the condemned prisoner refers the case of State Vs. Khadem Mondal, 1996 BLD (AD) 228.
 
In the case of the State Vs. Khadem Mondal, 1990 BLD (AD) 228, it has been held as under:

“In this case there was no eye-witness of the occurrence and the only circumstance found in the case against the husband is that, the death occurred in the night of the occurrence in the house of the accused respondent. But none of the witness specifically stated that Khadem Mondal was present either in the night of the occurrence or in the early morning when the witness went to the house of Khadem Mondal. All the witnesses stated that they heard about the death from the accused persons and the accused persons did not disclose the cause of death. It is true that the wife died in the house of the husband and the defence did not give any satisfactory explanation as to how the deceased died in the house in the night of the occurrence. But for that fact alone, it is difficult to conclusively fix the liability with the husband”.(emphasis supplied)
 
From the above pronouncements, it is clear that in a wife’s killing case the husband is under an obligation to explain how his wife met with her death. But to make the husband liable for the death of his wife, the minimum fact that must be brought on record that the husband was present at home at the relevant time. In the case of the State, represented by the Solicitor to the Government of the People’s Republic of Bangladesh Vs. Md. Shafiqul Islam alias Rafique and another, 43 DLR (AD) 92, the Appellate Division has held as follows:-

“Where it is proved that the wife died of assault in the house of her husband, there would be strong suspicion against the husband that at his hands the wife died.  To make the husband liable, the minimum fact that must be brought on record, either by direct or circumstantial evidence, is that he was in the house at the relevant time.(emphasis supplied)
 
In the case of the State Vs. Mofazzal  Hossain Pramanik, 43 DLR (AD) 65, the Appellate Division has held as follows:-

“In this case how much the respondent could explain the circumstances in which his wife died depended on where he was at the material time. When the prosecution failed to prove that the accused was in his house where his wife was murdered he cannot be saddled with any onus to prove his innocence. Had it been established by evidence that the accused was in his house at the material time, pointing a finger at him as the probable assailant, then the Court could have in deciding the matter considered his failure to adduce explanation or the falsity of his explanation along with other incriminating circumstances.”
 
In the above case, it was further held:

“That Halima died of assault in the house of the respondent is proved. No doubt, strongest suspicion will be against the respondent that at his hands Halima died. But to make him liable, the minimum fact that must be brought on record, either by direct or circumstantial evidence that he was in the house at the relevant time or night.”(emphasis supplied)
 
In the case of The State Vs Azizur Rahman alias Habib, reported in 20 BLD-467, it has been held that the defence of alibi of the condemned prisoner was not established even then the responsibility of the prosecution does not diminish in establishing its case that it was the accused who was responsible for commission of offence.
 
The learned Advocate for the defence also submits that the accused was not present at the place of occurrence when the occurrence took place. P.W. Nos. 3 and 4 who are the neighours came to place of occurrence but did not find the accused in the place of occurrence.
 
It has been settled by the different pronouncements of the top Courts that if an exception is pleaded by an accused the onus is upon him to prove such plea. Sections 103 and 106 of the Evidence Act clearly indicate that under the law an obligation is cast upon the accused to prove the special plea of alibi by adducing evidence. It will be profitable to cite the correct interpretation of law in respect of prosecution case and the special plea of defence as has been laid down by Chief Justice Gajendragadkar,  reported in AIR 1966 (SC) 97 at para (15) which runs as follows:

“It will be recalled that it was with a view to emphasizing the fundamental doctrine of Criminal Law that the onus to prove its case lies on the prosecution, that Viscount Sankey in Woolmington Vs Director of Public Prosecutions, 1935 AC 462, observed that, “no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”. This principle of common law is a part of the criminal law in this country That is not to say that if an exception is pleaded by an accused person, he is not required to justify his plea; but the degree and character of proof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case.”
 
From the above pronouncements, we are of the opinion that though in a wife killing case, the condemned prisoner is liable to explain how his wife met with death, the prosecution is equally responsible to prove the case beyond doubt and the prosecution is also responsible to prove that the accused was present at the place of occurrence when the occurrence took place.
 
In the instant case P.W. Nos. 3 and 4 are independent witnesses and they are the neighbours of the condemned prisoner and the deceased. They came to the place of occurrence immediately after the occurrence. P.W. 3 stated in her cross-examination that when she came to the place of occurrence she did not find any male member there. P.W. 4 also did not state anything that the condemned prisoner was present at the place of occurrence when occurrence took place. So, in the absence of any evidence that the condemned prisoner was present at the place of occurrence when the occurrence took place, it is difficult to hold that none else but the condemned prisoner is responsible for killing of his wife.  Now, we may turn to other important legal point.
 
The learned advocate appearing for the condemned prisoner submits that the symptoms appeared in the dead body of the deceased correspond to suicidal hanging. The inquest report has been proved as Ext. 11. In Ext. 11 it has been stated as under: মৃত মাকসুদা অাক্তার সোনিয়া (২৭) স্বামী কর্পোরাল গোলাম সরোয়ার ১৯ ইস্ট বেঙ্গল সাপোর্ট ব্যাটালিয়ন সাভার সেনানিবাস সাভার ঢাকা এর লাশের সুরতহাল রিপোর্ট তৈরি করি লাশটির চোখ বন্ধ গলায় বাম দিকে ফাঁসির দাগ পরিলক্ষিত হয় গলার পিছনের দিকের চামড়া ছোলা, কানের লতি ছেড়া, মুখ সামান্য খোলা ও উপরের পাটির দাঁত দেখা যাইতেছিলz হাতের তালুতে কালচে দাগ এবং শরীরের বিভিন্ন সÛানে নীল যা সবুজ দাগ, পায়খানা ও বীর্য নির্গত হইয়াছিল পরনের কাপড় ভেজা ছিল উহাতে প্রসাব হইয়াছে বলিয়া ধারনা হয়z এই প্রতিবেদন অামি সাক্ষীদের মোকাবেলা তৈরী করিয়াছি ও সাক্ষীদের স্বাক্ষর গ্রহণ করিz লাশ শনাক্ত করিয়াছিল সাক্ষীগনz এই লেখা ও দস¹খত অামার সুরতহাল রিপোর্ট প্রঃ নং-১১ এবং দস¹খত প্রঃ নং-১১/১ হইল.
 
In the post mortem report, it has been stated as under:
  1.  One lacerated wound ½” X ¼” X ¼” over left ear Lobule (place of ear ring torn)
  2.  Bleeding from right ear lobule present (at the site of ear ring)
  3.  One oblique fade non-continuous ligature mark impression 1 ¼” breath is present (at high up in the neck with a gap of 3 ½” on left upper lateral neck with a knot mark impression 1 ¼”X ½” over under surface of mandible (left side)
  4.  One buries ½” X ½” over lateral aspect of right lower arm 3” above right elbow joint.
  5.  One buries 3 ½” X 1 ½” over medial aspect of right leg. 3” below right knee joint.
  6.  One buries 2” X ½” over medial aspect of left middle leg below left knee joint.
  7.  One lacerated wound ½” X ¼” soft tissue depth is present over posterior aspect of right lower anterior chest wall at back at 7th thoracic vertebra level. 4” to the right of midline at back.
In the opinion the doctors opined that death was due to respiratory failure following asphyxia as a result of ante-mortem hanging which was consistent with ante-mortem suicidal hanging. The injuries present on different region of the body were ante-mortem in nature and are suggestive of the fact that the deceased was subjected to blunt trauma during life.
 
In the post mortem report the doctor in no uncertain term stated that death was due to respiratory failure, following asphyxia as a result of ante-mortem hanging what was consistent with ante-mortem suicidal hanging.
 
The ligature mark was found non-continuous. This non-continuous ligature mark is confirmatory to suicidal hanging. Therefore, there is nothing to disbelieve the doctor and discard the post mortem report.
 
Now, let us turn another important point whether the condemned prisoner demanded dowry at the time of the occurrence and whether the case falls within the mischief of section 11(ka) of the Nari-O-Shishu Nirjaton Daman Ain, 2000 (as amended in 2003). Section 11(Ka) of the Nari-0-Shishu Nirjatan Daman Ain, 2000 is as follows: যোতুকের জন্য মৃত্যু ঘটানো, ইত্যাদির শাসি¹z যদি কোন নারীর স্বামী অথবা স্বামীর পিতা, মাতা, অভিভাবক, আত্মীয় বা স্বামীর পক্ষে অন্য কোন ব্যক্তি যো~তুকের জন্য উক্ত নারীর মৃত্যু ঘটান বা মৃত্যু ঘটানোর চেষ্টা করেন, ঞ্ছকিংবা উক্ত নারীকে মারত্মক জখম (grievous hurt) করেন বা সাধারণ জখম (ড়ভলসরন বয়ক্ষঢ়)করেনঞ্জ তাহা হইলে উক্ত স্বামী, স্বামীর পিতা, মাতা, অভিভাবক, আত্মীয় বা ব্যক্তি- (ক) মৃত্যু ঘটানোর জন্য মৃত্যুদন্ডে বা মৃত্যু ঘটানোর চেÖঢ~ার জন্য যাবজ্জীবন কারাদন্ডে দন্ডনীয় হইবেন এবং উভয় ক্ষেত্রে উক্ত দন্ডের অতিরিক্ত অর্থ দন্ডেও দন্ডনীয় হইবেন;
 
So from the plain reading of section 11(Ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000, we find that if the death is caused for demand of dowry, it will come within the mischief of section 11(Ka) of the Ain. Now, let us see whether the prosecution has been able to prove that the accused demanded dowry or not.
 
P.W. 1 stated that he paid Tk. 55,000/- as dowry to the condemned prisoner in two installments but he did not mention the exact date and time when the condemned prisoner demanded dowry. P.W. 1 again stated that on 17.01.2003, the condemned prisoner demanded dowry to the tune of Tk.50,000/- and he assaulted the deceased. But obviously on 17.01.2003, P.W. 1 was not present there and he was in his work place at Barisal. P.W. 2 stated that, “আমার আîুর সাথে আমার আম্মুর যৌতুকের টাকা নিয়ে ঝগড়া হয়z ১৭/০১/০৩ তারিখ শুত্র্রবার রাত্রে আমার আîু আমার আম্মুকে মারধর করে
 
The evidence of P.W. 2 has not been corroborated by other evidence. As she is a child witness, her evidence cannot be relied upon without corroboration. P.W. Nos. 3 and 4 are the close neighbours of the deceased and the condemned prisoner, but they did not state that the condemned prisoner demanded dowry from the deceased. The other witnesses also did not state anything about the alleged demand of dowry. Therefore, we do not find any evidence to hold that the condemned prisoner committed the offence for demand of dowry. The doctor gave the opinion that the death was due to respiratory failure following asphyxia as a result of ante-mortem hanging which was consistent with ante-mortem suicidal hanging. The opinion of the doctor is consistent with the prosecution case in as much as it is the prosecution case that on the night of 17.01.2003 condemned prisoner mercilessly beat to his wife. Therefore, the injuries present on the person of the deceased must be ante-mortem in nature. Because the condemned prisoner beat his wife on the night of 17.01.2003 when she was alive.
 
Again, this is a case under section 11(Ka) of the Nari-0-shishu Nirjatan Daman Ain, 2000.
 
Unfortunately, in a case under section 11(Ka) of the Nari-0-Shishu Nirjatan Daman Ain, 2000, the law provides the only sentence of death. No other sentence could be awarded in a case under section 11(Ka) of the Ain if the charge is proved against the accused.
 
In the instant case admittedly there is no eye-witness except P.W. 2. It is admitted that P.W. 2 was 7 and half years old at the time of the occurrence. Even when she deposed before the court she was 9 years old. In law the testimony of a child witness cannot be relied upon without prudent corroboration and such corroboration is absent in the present case.
 
When the question of awarding death sentence comes, the responsibility rests upon the court to sift the evidence of a child witness with full care.
 
We have seen that the evidence of P.W. 2 has not been corroborated by any other witness. Therefore, it will not be proper to award death sentence believing the solitary un-corroborative evidence of P.W. 2 who is a child witness.
 
The next legal question raised by the learned Advocate appearing for the accused is that the prosecution failed to prove that the accused demanded dowry before his wife was done to death. Therefore, the Nari-O-Shishu Nirjatan Daman Tribunal had no jurisdiction to try the case and the trial was absolutely without jurisdiction. At the time of hearing of Appeal the question arose whether the High Court Division was competent to convert a case of Nari-O-Shishu Nirjaton Daman Ain into section 302 of the Penal Code and dispose of the appeal without sending the case back on remand to try the case by the Sessions Court
 
In the case of the State Vs. Bahar Miah, 56 DLR 455, a Division Bench of this Court held that conviction given under Nari-O-Shishu Nirjatan Daman Ain could not be converted into one under section 302 of the Penal Code. In the case of State Vs. Eunus  Kha 5 BLC 353, a Division Bench of this Court converted conviction passed under section 10(1) of Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 into one under section 302 of the Penal Code and disposed of the Appeal. In the case of State Vs. Mannan Gazi, 6 BLC 187 another Division Bench converted a conviction passed under section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 into one under section 302 of the Penal Code and disposed of the Appeal. Therefore, we find that the High Court Division is divided on the point whether or not conviction under Nari-O-Shishu Nirjatan Daman Ain can be converted into one under section 302 of the Penal Code at the appeallant stage and dispose of the Appeal. In this connection, perhaps, it will be profitable for us to place reliance upon the case of Asiman Begum Vs. State, represented by the Deputy Commissioner 51 DLR (AD)18=3MLR (AD) 286. In the case referred to above, the Appellate Division has held as under:-

“We find considerable substance in the submission of the learned Advocate. The learned Judge of the High Court Division was right in holding that the (Bishesh Bidhan) Adalat under the aforesaid Ain of 1995 could not try an offence under the Penal Code and the order of conviction and sentence under section 304 of the Penal Code was, therefore, without jurisdiction. But the appellant had no hand in the matter of trial. If there was a trial in the wrong forum the responsibility must lie with the prosecution. But that does not also mean that an accused can never be tried for a second time by an appropriate Court. The better view is that 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. For example, if 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 an 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.
Even if the Court finds that there is prima-facie evidence for a fresh trial by a proper Court, then also there may be consideration for which it may not be felt appropriate to require the accused to stand a second trial. For example, if it is found that the accused had suffered a substantial part of the sentence imposed upon him or her in the mis-trial, the Court may not for ends of justice direct a retrial. There may be other extenuating circumstances, which may impel a Court to take a lenient view in favour of the accused. But there is no question that the Court has undoubted right to direct a retrial where there has not been a trial in accordance with law. A balance has, however, to be struck and that is, what is called the exercise of judicial discretion in the facts and circumstances of a particular case, a judge’s mind always swings- To be or not to be.”
 
As per the decision of the Appellate Division cited above, we are of the opinion that this court is competent to convert the case into suitable section of the Penal Code and dispose of the appeal on its merit.
 
We find some circumstance in this case. First the accused had a paramour. P.W. 2 stated that on the night of 17.01.2003 her father mercilessly beat her mother. The post mortem report also shows that there are 7 injuries on the persons of the deceased. All these facts and circumstances show that the husband created a situation for which the wife was compelled to commit suicide. In fact, in the present case we find that the husband abetted the commission of offence of suicide by the wife. Therefore, in our view, this case falls within the mischief of section 306 of the Penal Code.
 
Considering all these facts and circumstances and the evidence on record, we are of the opinion that justice will adequately be met if the condemned prisoner is found guilty of offence under section 306 of the Penal Code and he is convicted and sentenced thereunder to suffer rigorous imprisonment for 10 years with a fine of Tk. 1,000/-, in default to suffer rigorous imprisonment for 6 months more.
 
In the result the death reference No. 114 of 2008 is rejected and the Jail Appeal No. 999 of 2008 is dismissed with the modification of sentence as mentioned above.
 
The condemned prisoner, namely, Md. Golam Sarwar @ Ripon is found guilty of offence under section 306 of the Penal Code and he is convicted and sentenced thereunder to suffer rigorous imprisonment for 10(ten) years with a fine of Tk. 1,000/- (one thousand), in default, to suffer rigorous imprisonment for 06(six) months more. If the condemned prisoner has already served out 10(ten) years imprisonment in the meantime, he may be released from the jail custody at once if not wanted in any other case.
 
Let a copy of this judgment be sent to the Lower Court for taking necessary action.
 
Send down the lower court’s record at once.
 
Ed.