Case No: Death Reference No. 56 of 2006
Judge: Syed Md. Ziaul Karim,
Court: High Court Division,,
Advocate: Mrs. Hasna Begum,Mr. A. K. M. Fakhrul Islam,,
Citation: 3 LNJ (2014) 709
Case Year: 2014
Appellant: The State
Respondent: Md. Mominur Islam
Subject: Law of Evidence,
Delivery Date: 2012-01-30
HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
|Syed Md. Ziaul Karim, J,
A. N. M. Bashir Ullah, J.
29.01.2012 and 30.01.2012
Md. Mominur Islam
(In Death Reference No. 56 of 2006)
Md. Mominur Islam
. . . Respondent
(In Criminal Appeal No. 1967 of 2010)
Md. Mominur Islam
. . .Respondent
(Jail Appeal No. 701 of 2006)
Evidence Act (I of 1872)
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....(51)
Saidur Rahman Neuton and others Vs. State 45 DLR-66; State Vs. Sadek Matbar and others 13 MLR 591; The State Vs. Mofazzal Hossain Pramanik 43 DLR (AD) 65; Masud Mia (Md) Vs. State 56 DLR-3521990; Criminal Law Journal 385(P & H ); State Vs. Hasen Ali 4 BLC 582; State Vs. Mozam alias Mozammel and others 9 BLC 163; State Vs. Moslem 55 DLR 128; 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; of Safder Ali Vs. Crown 5 DLR(FC) 107; Monsur Ali Vs. The State 13 BLC 196; State Vs. Badsha Molla, 41 DLR 11; State Vs. Mofijuddin 4 BLD-481; 10 BLC-93, State Vs. Lalu Mia, 39 DLR (AD) 117; State Vs. Sree Ranjit Kumer Promanik, 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 ref.
Mr. Md. Mahbub Ul Alam,A.A.G.
Mr. Md. Osman Goni, A.A.G. and
Mrs. Delwara Begum, A.A.G.
Mr. A. K. M. Fakhrul Islam, Advocate, with
Mr. Zahangir Alam, Advocate and
Mr. Md. Giasuddin Gazi, Advocate,
Mrs. Hasna Begum, Advocate,
(In Jail appeal No. 701 of 2006)
Death Reference No. 56 of 2006 With Criminal Appeal No. 1967 of 2010 with Jail Appeal No. 701 of 2006
This reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal no.1, Rangpur (briefly as Tribunal), for confirmation of death sentence of condemned-prisoner.
By the above appeals the appellant has challenged the legality and propriety of the judgment and order of conviction and sentence dated 29-06-2006 passed by learned Judge of Tribunal in Nari-O-Shishu Case no. 328 of 2001 convicting the appellant under Section 6(1) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (briefly as Ain 1995) and sentencing him to death by hanging.
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 as projected in first information report (briefly as FIR) and unfurled at trial are that Most. Sahejan Begum (14½) daughter of informant Md. Sahidul (P.W.1) appeared in S.S.C. examination 2000 from Bujruk Santushpur Ideal High School. On 17-03-2000 at 8:00 a.m. she disclosed that accused Mominur Islam used to molest her on the way to her school and repeatedly proposed for marriage. On her refusal she was threatened to be defiled. On 08-01-2000 at 7:00 p.m. accused entered into her dwelling hut in absence of her parents and committed rape against her will. She did not disclose such incident for the fear of her life but consequently she was carrying for four months on such affairs. The accused also promised to marry her but to no avail. To that effect a salish was held on 20-03-2000 wherein she narrated such melancholie episode, but accused disowned it. Eventually the members of board of Salish directed the accused to marry her within seven days. Later, the accused without giving effect of it fled away. With these allegations the prosecution was launched by lodging a FIR by her father Sahidul (P.W.1) as informant which was recorded as Mithapukur Police Station case no. 20 dated 15-06-2000 corresponding to G.R. no. 320 of 2000.
During pendency of the case victim died. The Police after investigation submitted charge sheet under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain 2000 accusing the accused Md. Mominur Islam.
Eventually, charge under section 6(1) of the Ain 1995 was framed against accused in his absence. Later, trial was held in absentia, and he was defended by State defence lawyer.
In course of trial the prosecution in all examined seven witnesses out of eleven 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 by creating some fictitious papers he was falsely implicated by his rivals.
After trial in absentia the accused was convicted as aforesaid.
The learned Deputy Attorney General appearing for the State supports the reference and submits that accused himself admitted his guilt before salish which can be treated as his extra judicial confession and the same was corroborated by other independent witnesses. He adds that victim categorically disclosed that she was raped by accused, consequently she was carrying which was proved by doctor in ultra sonogram report. Therefore, the Tribunal after considering the materials on record rightly convicted the accused which calls for no interference by this Court. In support of his contentions he refers the case of Saidur Rahman Neuton and others Vs. State 45 DLR-66 held:
He next refers the case of State Vs. Sadek Matbar and others 13 MLR 591 held:
The learned Counsels appearing for the condemned prisoner by their common contentions seek to impeach the impugned judgment and order of conviction and sentence on five fold arguments:
Firstly: The alleged extra Judicial confession can not be treated at all be an admission of guilt and the same was not proved by evidence. In support of their contention they refer the case of The State Vs. Mofazzal Hossain Pramanik 43 DLR (AD) 65 held:
Secondly- The case is absolutely a case of no evidence.
Thirdly: There is no prosecutrix in this case, prosecution relied on hearsay evidence, which cannot be the basis of conviction. In support of their contention they refer the case of Masud Mia (Md) Vs. State 56 DLR-352 held:
Fourthly: The Tribunal convicted the accused considering the abscondence of accused, but abscondence is never be an inference of guilt.
Fifthly: The Judgment and order of conviction and sentence based on misreading and non consideration of 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 Shahidul is informant and father of victim. He deposed that on 08-01-2000 at 7:00 p.m. the accused Mominur by entering into his south facing house forcibly committed rape upon his daughter Sahejan. On 17-03-2000 his daughter disclosed about his sickness and she was weeping. On quarry she narrated the fact to the effect that accused Mominur by entering into his living room forcibly committed rape on the point of a dagger. On 20-03-2000 a salish was held wherein the accused by admitting his guilt promised to marry her within seven days but with no effect. His daughter became pregnant for the cause of rape and she was examined by doctor. He lodged the FIR. He proved the same as Exhbt. 1 and his signature on it 1/1.
After occurrence his daughter died by heart failure leaving behind one child aged about three years.
In cross-examination he stated that at the time of occurrence they were not present in their home. He denied the suggestion that the accused never visited his house and raped his daughter.
P.W. 2 Most. Santana Begum wife of informant and mother of victim. She deposed that on 17-03-2000 at 8:00 p.m. she found her daughter sick who told that on 08-01-2000 at 7:00 p.m. accused Mominur raped her in their absence. On 20-03-2000 accused Mominur admitted his guilt in salish and promised to marry her daughter within seven days. Her daughter was carrying for about four months. Her daughter died on hearing the information of marriage of accused.
In cross-examination she stated that she did not see the occurrence. On 17-03-2000 she heard the occurrence. In Eid-ul-Fitr she was present. She denied the suggestion that there was a land dispute between them and deposing falsely.
P.W. 3 Azimuddin alias Md. Azimuddin a local witness. He deposed that in salish he heard that the victim was raped. The accused admitted his guilt that he impregnated her. Consequently one child born. The victim died by heart failure on hearing the information of marriage of accused.
In cross-examination he stated that in salish both the victim and accused admitted the occurrence.
P.W. 4, Abul Kasem a rural physician. He deposed that on 20-03-2000 a salish was held wherein he heard the occurrence. Victim stated that she was raped by accused. The accused also admitted his guilt and signed in a paper before the salish. It was decided that within seven days the accused will marry the victim but subsequently he did not do so. The victim died by heart failure on hearing marriage of accused. He proved the salishnama as Exhbt. 2 and his signature on it as Exhbt. 2/1.
In cross-examination he stated that he heard the occurrence and denied the suggestion that there was a land dispute between the parties. The victim was not raped and deposing falsely.
P.W. 5, Momdel Hossain a local witness. He deposed that at the time of salish he heard the occurrence. He proved his signature on salishnama as Exhbt. 2/2.
In cross-examination he stated that about two hundred people assembled in salish. The victim told them she was raped on 08-01-2000 at 7:00 p.m. He denied the suggestion that there was a land dispute between the parties, the victim was not raped and deposing falsely.
P.W. 6 S.I. Md. Abdul Halim alias Md. Abul Halim Sarker deposed that on 15-06-2000 he was attached with Mithapukur Police Station. The Case was entrusted to him for investigation. He visited the place of occurrence, prepared sketch map and index (4,4/1). He recorded the statements of the witnesses under Section 161 of the Code. Victim was examined by doctor and after investigation submitted charge sheet accusing the accused.
In cross-examination he denied the suggestion that he recorded the statements in the Police station and submitted a perfunctory report.
P.W.7 Doctor Mir Hamde Swami Azad deposed that on 20-06-2000 Doctor Afsana Ferdous held ultra sonogram of victim Sahejan Begum and prepared a report. He proved the same as Exhbt. 5 and his signature on it as Exhbt.5/1. The contents of report are as follows:
These are all of the evidence on record adduced by the prosecution to prove the charge.
It is indisputable that victim Shahejan Begum (since dead) was raped.
On going to the materials on record it transpires that prosecution in all examined seven witnesses out of eleven charge sheeted witnesses. Of whom, P.W.1 is the informant and father of victim. P.W.3, 4 and 5 are the local witnesses and heard the occurrence in salish, of them P.W. 4 proved the salishnama, P.W. 6 investigated the case and submitted charge sheet. P.W. 7 proved the report of ultra sonogram furnished by Dr. Afsana Ferdous.
We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.
d) There must be clear and unequivocal proof of the corpus delicit.
e) The hypothesis of delinquency should be consistent with all the facts proved.
Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.
It is true that there is no eye witness in this case but the prosecution case absolutely rest upon the statement of victim and extra-Judicial confession of accused.
For the convenience of understanding statement of victim as given in Salish (Exhbt.2) reads as hereunder:
গত রোজার ২/৩ তারিখে আমি স্কুল যাওয়ার পথে বিবাদী মমিনুর আমাকে একখানা চিঠি দেয়। আমি উহা প্রত্যাখান করিয়া স্কুলে যাই ও নিয়মিত ফিরে আসি। অতঃপর কয়েক দিনের মধ্যে বিবাদী আমাকে যখন তখন বিরও্র করে ও বিবাহ করার প্রস্তাব দেয়। আমি গরীবের মেয়ে হিসাবে মমিনুরকে বারংবার প্রত্যাখান করি। গত রমজান মাসের শেষ দিন ৮/১/২০০০ ইং রোজ শনিবার দিবাগত রাতে আমার মা বাবা ঘরোয়া আলাপ অালোচনার জন্য পার্শ্ববতী জেঠার বাড়ীতে যাওয়ার সুযোগে মাগরিব পর রাত ৭ টার সময় মমিনুর আমার দক্ষিন দোয়ারী শয়ন ঘরে প্রবেশ করিয়া অামাকে ধরিতে আসে। আমি বিপদ বুঝিয়া চিৎকার দিতে গেলে মমিনুর আমাকে ছোরা দেখিয়ে ভয় দেখায় ও মুখ চেপে ধরে বিছানায় ফেলে পায়জামার ফিতা ছিঁড়ে উলঙ্গ করে জোরপূর্বক আমার ইচছার বির্রদ্ধে আমাকে ধর্ষণ করে। ফলে বর্তমানে আমি অন্তসত্তা। ঘটনার পর সমাজ ভয়ে বিবাদী মমিনুরের পূর্ব কথামত তার সাথে বিবাহে রাজী হইতে বাধ্য হই এবং সেও আমাকে বিবাহ করিতে রাজী হয় ও শপথ করে। পরবর্তীতে বিবাদী মমিনুর আমাকে বিবাহ করিতে অস্বীকার করিলে আমি আপনাদের সরনাপন্ন হইয়া বিচার প্রার্থনা করিতেছি।
সভাপতি সাহেব মোছাঃ সাহেজানের সাক্ষীর কথা জিজ্ঞাসা করিলে সে মমিনুরের প্রদত্ত চিঠি ও ছবির কথা বলে ও সেগুলি সভাসহলে সভাপতির নিকট হস্তান্তর করে।
স্বাক্ষর সাহেজান বেগম-সাহেজন"
Furthermore the extra-Judicial confession of accused runs in following manner:
আমি শাহেজনকে কোন রুপ বিরক্ত করি নাই বা চিঠি দেই নাই এবং তার কোন ক্ষতিও করি নাই। সে বা তার বাবা আক্রোশ মূলক আমাকে অহেতুক দোষারোপ করিতেছে।
বিবাদীর জবানবন্দির উপর ভিত্তি করিয়া সভাপতি সাহেব বিবাদীর প্রদত্ত চিঠি ও ছবি আমাকে দেখাইলে সে তখন ছবিও চিঠি নিজের বলিয়া অকপটে স্বীকার করে ও শাহেজানের সহিত অতীত কর্মকান্ড সম্পর্কে বিস্তারিত স্বীকার করে z
স্বাক্ষর- মমিনুর- মমিনুর z”
After considering their statements members board of salish pronounced the following verdict:
মোঃ আবুল কাশেম
৬নং ওয়ার্ড সদস্য
১৩ নং বালুয়া মাসিমপুর ইউ,পি, মিঠাপুকুর, রংপুর ”
In the case reported in 1990 Criminal Law Journal 385(P & H ) held:
In the case of State Vs. Hasen Ali 4 BLC 582 held:
In the case of State Vs. Mozam alias Mozammel and others 9 BLC 163 held:
In the case of State Vs. Moslem 55 DLR 128 wherein at paragraph 57 it has been observed:
Moreso, the salishnama (Exhbt. 2) was not proved by evidence inasmuch as none of members of board of salish came forward to prove the same. Exhbt. 2 was proved by PW-4 Abul Kasem, a rural physician, who merely assembled in salish along with other co-villagers and his name stands as witness no.6 in charge-sheet, but Abul Kasem Paiker was the Union Parishad member and Chairman of board of salish, his name stands as witness no.9 in charge-sheet, but he was not examined by the prosecution without explanation. Therefore we hold that salishnama (Exhbt. 2) is in- admissible in evidence and should be left out of consideration.
It is true that crime like rape 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 rape. There cannot be conviction for rape on mere suspicion or presumption. The commission of rape 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 asto 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:
So, there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime of rape. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.
It is pertinent to point out that as the accused remained absconding so the trial was held in absentia but after pronouncement of judgment he surrendered and preferred appeal before this Court.
According to the submissions from prosecution and observations made by the Tribunal, it indicate that the 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 observation of the Court below. The prosecution measurably failed to establish by evidence that soon after the occurrence, the accused had any responsibilities to discharge his 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.
With this regard reliance are being placed in the cases of Monsur Ali Vs. The State 13 BLC 196. Similar views were taken in the cases of State Vs. Badsha Molla, 41 DLR 11, State Vs. Mofijuddin 4 BLD-481=10 BLC-93, State Vs. Lalu Mia, 39 DLR(AD)117, State Vs. Sree Ranjit Kumer Promanik, 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.
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 advanced by the learned Deputy Attorney General are not the correct exposition of law, however we have gone through the decisions as referred by him, we are in full agreement with the principles enunciated therein but the facts leading to those cases are quite distinguishable to that of the instant case. 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 deals 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 prosecution measurably failed to prove the charge against the condemned prisoner beyond all reasonable doubt. Thus the reference having no merit fails.
In the result:-
(b) The impugned Judgment and order of conviction and sentence dated 29-06-2006 passed by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal No.1, Rangpur in Nari-O-Shishu Case no. 328 of 2000, is hereby set aside. The condemned prisoner Md. Mominur Islam is acquitted from the charge and set at liberty if not detained in any other case.
(c) Accordingly Criminal appeal no. 1967 of 2010 and Jail appeal no. 701 of 2006 are allowed.
The Office is directed to send down the records at once.