The State Vs. Nurul Kabir, 2 LNJ (2013) 298

Case No: Criminal Appeal No. 4347 of 2005

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Citation: 2 LNJ (2013) 298

Case Year: 2013

Appellant: The State

Respondent: Nurul Kabir

Subject: Dying Declaration, Criminal Trail,

Delivery Date: 2011-08-25

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Md. Ziaul Karim, J.
And
Abdur Rob, J.
 
Judgment
25.08.2011
 
The State
-Versus-
Nurul Kabir
...Condemned Prisoner
Nurul Kabir
. . .Convict-Appellant.
-Versus-
The State
...Respondent.
(In Criminal Appeal No. 3778 of 2009)
Nurul Kabir
. . .Convict-Appellant.
-Versus-
The State
...Respondent.
(In Jail Appeal No. 1055 of 2005)
Zahir Ahmed
. . Informant-appellant.
-Versus-
1. The State
2. Manjur Alam
...Respondents.
(In Criminal Appeal No. 4347 of 2005)
 

Evidence  Act (l of 1872)
Section 32(1)
P.W.1, brother of the deceased, having had heard the gun-fire and screaming of the deceased rushed to the P.O. along with others namely P.Ws. 2, 4 and 7, to whom the victim Syed Karim stated that accused Nurul Kabir inflicted gun fire and running away. They also found accused Nurul Kabir running away towards north. Later on P.Ws. 6 and 9 happened at the scene they also found the accused Nurul Kabir running away and heard that the accused Nurul Kabir inflicted gun-fire upon deceased Syed Karim. So the evidence of all the above prosecution witnesses in respect of hearing the verbal dying declaration of the deceased and running away the accused Nurul Kabir are consistent, uniform and corroborative with material particulars. So the same are invulnerable to the credibility....(65)
 
Criminal Trial
It is true that the case was investigated twice by the two investigating officers so obviously the examination of the witnesses will occur in two different occasions. So the same will not prejudice the accused in any manner. Furthermore there are some minor discrepancies in respect of circumstantial facts which can not be denoted as contradictions and affected the merit of the case. With that regard we must bear in mind that the discrepancies have to be distinguished from the contradictions whereas contradictions in the statements of witnesses may be fatal for the prosecution but minor discrepancies in evidence will not make the prosecution case doubtful where the discrepancies are of minor character and do not go to the root of the prosecution story and do not shake the basic version of the witnesses, they need not be given much more importance and their testimony should not be jettisoned....(66)
 
Criminal Trial
It appears that the defence unsuccessfully tried to make out the case that blood stained earth was not seized at the relevant time but it is in the evidence that it was diminished by walking and I.O. did not find it at or about the time of occurrence. Moreover the learned Counsel repeatedly urged that the gun fire was inflicted from the back but the post-mortem report does not support the same. So, we are unable to accept it. Therefore, we find the complicity of the accused Nurul Kabir with crime of murder is well proved and the Court below rightly and legally convicted him....(67)
 
Code of Criminal Procedure (V of 1898)
Section 376
The condemned-prisoner was aged about 28 years when he was examined under Section 342 Cr.P.C. The record indicates that the condemned prisoner is not a hard criminal, he cannot be at all characterized to be a menace to the society. Taking an account of aggravating and mitigating circumstances, ends of justice will be met if death sentence is altered to one of imprisonment for life. Condemned prisoner Nurul Kabir, thus stands sentenced to imprisonment for life. ...(68)

Sanwar Hossain Vs. State, 45 DLR 489, Shadat Ali and another Vs.  state , 44 D L R 217, Mamun  Raja Vs. State  of  MP  (197)2 SCR 764; a  1976 SC  2199; 1976 Cri LJ  54; State of  U P V Ram Sagor  Yadan, A 1985 SC  416;  1986  CRL LJ  836; Ramavati Dev  Vs.  State of Bihar A, 1983  SC 164; 1983  Cri LJ 221; Ajit  Singh Vs. State of Punjab. 1998 Cri LJ 3460 (P & H); Rama Chandra Reddy Vs. Public Prosecutor, A1976 SC 1994; 1976 Cri LJ  1548; Rasheed  Beg  Vs.  State  of  MP (1974)4  SCC 264; A 1974  SC  332;  1974  Cri LJ  1948;  Kake Singh  Vs.  UP 1981 SCC (Cri) 281; 1981 Cri LJ 168; State of Maharastra Vs.  Krishnamurthy  Laxmipati  Naidu, A 1981 SC 617;  1981 Cri LJ  94 Surajdeo  Oza  Vs.  State, A 1988  SC 912; State  of  UP Vs.. Madan  Mohan A 1989, SC  1519; 1989  Cri  1485; R. Vs.  Wood Cock  (1789);  Leach  500; Salim (Md) Vs.  State, 54  DLR  359  ref,
 
Mr. M. A. Mannan Mohon, D.A.G. with
Mr. Md. Mahbub Ul Alam,A.A.G.
Dr. Md. Bashir Ullah, A.A.G.
Mr. Md. Osman Goni, A.A.G.
. . . For the State

Mr. Abul Kalam Azad, Advocate
. . . For the condemned prisoner
(In Death Reference No. 141 of 2005)
 
With
Mr. Abul Kalam Azad, Advocate,
. . .For the convict-appellant.
(In Criminal Appeal No. 3778  of 2009)
 
With
Mrs. Most. Khalifa Shamsunnahar, Advocate.
. . . For the convict-appellant.
(In Jail Appeal No. 1055 of 2005
 
With
Mr. Md. Idrisur Rahman, Advocate
. . . For the informant appellant.
 
Mr. M. A. Mannan Mohon, D.A.G.
For the respondent no.1
Mr. Mohammad Zafar Ahmed, Advocate
. . . For the respondent No. 2
(In Criminal Appeal No. 4347 of 2005)

Death Reference No. 141 of 2005 with
Criminal Appeal No. 3778 of 2009 with
Jail Appeal No. 1055 of 2005 with
Criminal Appeal No. 4347 of 2005
 
JUDGMENT
Syed Md. Ziaul Karim, J:

This Death Reference under Section 374 of the Code of Criminal Procedure has been made by the learned Judge of Divisional Druto Bichar Tribunal, Chittagong (briefly as Tribunal) for confirmation of death sentence of condemned-prisoner.

By the Criminal appeal no. 3778 of 2009 and Jail Appeal No. 1055 of 2005 the convict-appellant has challenged the legality and propriety of the judgment and order of conviction and sentence dated 30-08-2005 passed by learned Judge of Tribunal, in Druto Bichar Case no. 10 of 2005 convicting the appellant under Section 302 of the Penal Code and sentencing him to death by hanging. By the same judgment the learned Judge acquitted the other co-accused Manjur Alam alias Manju from the charge.  Against which the informant as appellant preferred Criminal appeal no. 4347 of 2005.

The Death Reference and all these appeals having arisen out of the common judgment, these have been heard together and are being disposed of by this judgment.

The prosecution case put in a nutshell are that on 15-12-2001 at 9.15 p.m. Jahir Ahmed (P.W.1) and his manager of salt crashing factory Mr. Jaker Ahmed (P.W.7) were discussing about business affairs at his house. At that time his brother Syed Karim alias Latkaia (since deceased) was passing towards east through the courtyard by motor cycle (briefly as P.O.). Having had heard the gun fire and screaming of his brother, he along with Jaker Ahmed(P.W.7), father Haji Abdul Karim Sikder(P.W.3), mother Rowshan Ara Begum alias Rowshan (P.W.2), brother Muslem and deceased’s wife Most. Joinab Begum(P.W.4) rushed to the scene to whom the victim disclosed that Nurul Kabir son of Haji Siddique Ahmed of village Maddya Napitkhali, inflicted gun fire to him(victim) and ran away. They also witnessed the assailant Nurul Kabir retreating and identified him by the electric light. They carried the victim to Malumghat Christian hospital wherein the attending doctor declared him dead. After occurrence the locals namely Shah Alam, Md. Hefajat Ulla (P.W. 5), Shahabuddin (P.W. 10), Faridul Alam (P.W. 6), Jafer Ahmed(P.W.9) happened at the scene who also disclosed that prior to occurrence accused Monjur Alam was roaming around the P.O. and they found accused Nurul Kabir running away. The reasons behind such murder might be the sequel to the conflict between the deceased and accused Monjur Alam over non-payment of borrowed money by later who later on managed to commit murder by accused Nurul Kabir. The prosecution was launched by lodging a first information report (briefly as F.I.R.) by the elder brother of deceased Jahir Ahmed as informant which was recorded as Cox’s Bazar Police Station Case no. 12(12)2001 corresponding to G.R. no. 444 of 2001.

The Police after investigation submitted charge sheet under Sections 302, 109 of the Penal Code accusing two accused namely Nurul Kabir and Monjur Alam.

Eventually the accused were called upon to answer the charge under Sections 302, 34 of the Penal Code to which the accused on dock pleaded not guilty and claimed to be tried.

In course of trial the prosecution in all, produced 15 witnesses, of them examined 14 witnesses and P.W. 3 was tendered  by the prosecution and defence declined to cross-examine him.

After closure of the prosecution case the accused were examined under Section 342 of the Code of Criminal Procedure again they repeated their innocence and led no evidence in defence.

The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It is divulged in defence that the deceased have been killed by unknown assailants but due to previous internal feud they were falsely implicated out of vengence by their local rivals.

After trial the learned Judge of the Court below convicted the accused as aforesaid.

The learned Deputy Attorney General  appearing for the State supports the reference and submits that the impugned judgment and order of conviction and sentence based on evidence on record. He adds that the deceased Syed Karim made a verbal dying declaration narrating the complicity of accused Nurul Kabir and the same was corroborated by the witnesses who also found that accused Nurul Kabir was retreating. He further submits that the injuries received by the victim were corroborated with the injuries shown in the inquest report. Therefore the conviction and sentence calls for no interference by this Court.

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 the four fold arguments:

Firstly: Prima-facie it appears that the victim received the gun–shot injury at the back, so it was impossible for him to identify the assailants and according to him recognition was absolutely doubtful.

Secondly: Most of the witnesses categorically stated that at the time of occurrence blood of the deceased fell down but the investigating officer (briefly as I.O.) failed to seize blood stained earth from the P.O. which cast a serious doubt upon the manner of occurrence.

Thirdly: Some of the witnesses were examined by the I.O. after long time. So their evidence cannot be relied in convicting the accused.

In support of their contentions, the learned Counsels refer the case of Sanwar Hossain Vs. State 45 DLR 489 held:

“Inordinate delay in examining impo-rtant prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in such circums-tances their evidence is to be left out of consideration.”

Fourthly: The defence even if fails to establish his case but the prosecution must prove its case beyond reasonable doubt.

In support of their contentions they refer the case of Shadat Ali and another Vs. State 44 DLR 217 held: 

“ Even if the defence fails to establish its case that will not make the prosecution case proved as the burden of proof on the prosecution never shifts.”

The learned Counsels lastly submit that there are material contradictions between the testimony of the alleged eye witnesses. So it is very unsafe to rely on it. So the conviction and sentence cannot be sustained in the eye of law.

The learned Advocate appearing for the informant-appellant submits that the most of the local witnesses categorically stated about the complicity of accused Monjur Alam in this case. He adds that there was long standing business transactions between him and deceased who conspired the whole crime and abated accused Nurul Kabir and there is no mismatch or distinction between the convict and acquitted accused but the Court below without considering the evidence on record acquitted the accused Manjur Alam causing miscarriage of justice.

The learned Advocate appearing for the respondent no.2, Manjur Alam submits that there is no evidence in respect of abating the accused Nurul Kabir by accused Manjur Alam and the prosecution measurably failed to make a nexus between him and crime of murder. The Court below rightly considered the insufficient evidence and acquitted him which calls for no interference by this Court.

In order to appreciate their submissions we have gone through the record and given our anxious considerations to their submissions.

It is indisputable that slain Syed Karim was lynched by receiving gun shot injuries.

Now the question calls for consideration, is, whether the impugned judgment and order of conviction and sentence can be sustained in the eye of law.

Let us now weigh and sift the evidence on record adduced by the prosecution to prove the charge.

P.W.1, Jahir Ahmed is the informant and elder brother of deceased Syed Karim. He deposed that on 15-12-2001 at 9.00 p.m. he along with his Manager Zaker Ahamed was discussing about business. His brother Syed Karim was going by motor cycle towards north-east of his house through courtyard. Having had heard the gun fire and screaming of his brother he along with his manager Jaker Ahmed, father, mother, Joinab Begum, rushed to P.O. wherein victim disclosed that Nurul Kabir son of Siddique inflicted the gun fire to him and was running away. The attending witnesses identified the accused Nurul Kabir was running away by electric light. All the witnesses namely Jaker Ahmed, Rowshan Ara, Muslem, Joinab Begum heard the statement made by the victim. Then they carried the victim to Malumghat Christian hospital in critical condition wherein the attending doctor declared him dead. S.I. Jahirul Islam held inquest upon the cadaver. Prior to occurrence locals namely Shah Alam, Hefajat Ulla, Shahabuddin, Faridul Alam, Jafar Ahmed and others found accused Manjur was roaming around the P.O. and after occurrence he ran away before accused Nurul Kabir who was a local terrorist and accused of kidnapping his cousin. Accused Manjur Alam borrowed Tk. 5/6 lacs from the victim and to that effect there was an internal feud between them. He lodged the FIR. He proved FIR and seizure list as Exhbts. 1 and 2 respectively and signatures on it as Exhbts. 1/1 and 2/1 respectively.

In cross-examination he stated that name of the accused Manjur was not mentioned in the FIR. He denied the suggestion that at the time of occurrence he was out side his residence up to 10-00 p.m. suddenly, hearing the gun-fire he rushed to P.O. and he was 15/20 cubits away, the victim received the gun fire inside the garage. At that time there was no load shadding. He denied the suggestion that the accused were falsely implicated in this case and deposing falsely.

P.W.2 Rowshan Ara Begum alias Rowshan is the mother of the deceased. She deposed that on 15-12-2001 at 9.15 p.m. on hearing gun fire she came out, then his son disclosed that Nurul Kabir inflicted gun fire and running away. They also found accused Nurul Kabir and Monjur Alam were running away. There was a business transactions between Nurul Kabir, Monjur Alam with her son and out of that transactions accused Manjur Alam borrowed Tk.6/7 lacs from his son. On the date of occurrence Monjur Alam proposed to give Tk.2.80 lacs to his son. She stated such fact to I.O. and identified the accused on dock.

In cross-examination she stated that at the north side adjacent to her house there is a mosque and the people used to offer tarabi prayer there. Her son received bullet injury at the time of keeping the motor-cycle wherein blood fell down. She was examined by the I.O. after one month from the date of occurrence.  She denied the suggestion that her other sons were offering prayer at the mosque at the relevant time, between her house and Nurul Kabir there is one house and one courtyard. She denied the suggestion that accused Nurul Kabir did not commit murder and she was deposing falsely.

P.W. 4 Most. Joinab Begum wife of the deceased. She deposed that on 15-12-2001 at 9.15 p.m. she was staying in home for her husband, who was coming by a motor-cycle and kept it in front of cow-shed. Then she heard a gun fire and rushed to P.O. wherein she found her mother-in-law, Muslem, manager Jaker Ahmed, Faridul Alam, Monjur Ahmed, victim Syed Karim  disclosed that accused Nurul Kabir inflicted by gun fire and running away. They also found Monjur Alam and Nurul Kabir being armed with weapons were running away. They identified them by electric light. The accused were known to them and there was a strained relation between deceased and accused over business transactions. She narrated the occurrence to the I.O. on the following day. She identified the accused on dock.

In cross-examination she denied the suggestion that she did not state to I.O. that Monjur Alam and Nurul Kabir were going toward cow-shed; she identified the accused by electric light. She made statement to the C.I.D. that at the P.O. there was blood stained earth. She denied the suggestion that as accused Nurul Kabir kidnapped her cousin so she was implicated him in this case and deposing falsely.

P.W. 5 Md. Hafajatullah a resident of west Bamanghata. He deposed that on 15-12-2001 after taking ifter he was going to offer tarabi prayer and found two persons namely Monjur Alam and another man were running away. He disclosed such fact to the Police. He was declared hostile by the prosecution.

In cross-examination he stated that all such facts he disclosed to I.O. He denied that he did not state to I.O. that Monjur Alam was armed with weapon.

P.W. 6 Faridul Alam a resident of Maddyam Napitkhali and he was a daily labour by profession. He deposed that on 15-12-2001 he was coming with Syed Karim by motor cycle and after sometime he got down and walking toward hill, he heard a gun fire then he along with others namely Jahir Master, Jaker Ahmed, Joinab Begum, Muslem rushed to P.O. wherein the victim Syed Karim disclosed that Nurul Kabir son of Siddique inflicted a gun fire to him and found two accused namely Monjur Alam and Nurul Kabir were running away and they also carried weapons. They identified the accused by electric light. Police seized shad of one electric bulb, candle holder and made seizure list in their presence (Mat. Exhbts. IV, V,VI).

In cross-examination he stated that there was a blood stained earth at the P. O. but it was diminished by walking. After occurrence about 100 locals assembled at the P.O. he denied the suggestion that at the relevant time he was inside his house and deposing falsely.

P.W. 7, Jaker Ahmed a resident of Napithkhali and was manager of Ahmadia salt industry at the relevant time. He deposed that on 15-12-2001 at 9.15 p.m. he was at the residence of Jahir Ahmed wherein he heard the gun fire, the victim Syed Karim disclosed that Nurul Kabir son of Siddique inflicted gun fire to him. He also found the accused Nurul Kabir and Monjur Alam were running away and identified them by electric light. After a while locals namely Shahjalal, Shah Alam, Hefaja-tullah Master and others told him that they also found accused Nurul Kabir and Monjur Alam were running away. He was examined by the I.O. Accused Nurul Kabir was an accused in a kidnapping case and there was a business transactions between Monjur Alam and deceased Syed Karim.Some alamats were seized in his presence (Exhbt. 3).

In cross-examination he denied the suggestions that at the relevant time he was working in Islami Bank and did not identify the accused by electric light; the accused Monjur Alam was running away; deceased took money from the landless cultivators with an assurance for allotment of land and killed the deceased for the cause of love affair and deposed falsely.

P.W. 8 Shahjalal was a resident of Islampur Dharmachhara and owner of salt industry. He deposed that on 15-12-2001 at 9.15 p.m. he was going towards the residence of Syed Karim; at that time he heard one gun fire and found two persons were running away; he identified accused Manjur by torch light and on dock.

In cross-examination he denied the suggestions that on 15-12-2001 he did not find Monjur Alam and deposing falsely.

P.W. 9 Jafar Ahmed a resident of Maddyam Napithkhali. He deposed that on 15-12-2001 at 9.15 p.m. he heard a gun fire and heard that accused Nurul Kabir after inflicting gun-fire was running away. He rushed to the scene wherein he found that wife of the victim, his father, mother, and younger brother Muslem, to whom deceased Syed Karim disclosed that Nurul Kabir inflicted gun-fire to him and running away. He was examined by the Police. He heard that there was a conflict between Nurul Kabir, Manjur Alam and the deceased for the cause of business transactions.

In cross-examination he denied the suggestions that he did not state to the I.O. that accused Nurul Kabir inflicted gun fire to deceased and deposing falsely.

P.W.10 Shahabuddin a local witness and a resident of Maddyam Napithkhali deposed that on 15-12-2001 at 9.15 p.m. on hearing screaming he rushed to the house of deceased and found that the inmates were weeping who told that accused Nurul Kabir inflicted gun fire to deceased.

In cross-examination he denied the suggestion that he did not go to the house of deceased and deposing falsely.

P.W.11 Dr. Puchawanu deposed that at the relevant time he was attached as a medical officer at Naikhangchari Upazila Health Complex, Chittagong Hill Tracks. On 16-12-2001 at 10:30 a.m. he held autopsy upon the cadaver of Syed Karim identified by constable Md. Ishaq Mea and found the following injuries and opined in following manner:-

“One point of entry wound is found at the left loin measuring 2 c.m. in diameter with blackish converted margin which is directed transversely and slightly upwards towards the right side producing and exit wound at the right lumber region measuring 5 c. m. x 4 c.m.
One piece of momentum is exposed through the exit wound. After deep dissection of the abdominal huge antermortem clotted bloods is found in the abdominal cavity.
A loop of small and large gut is perforated. The inferior part of the rt. loop of lever is lacerated.
4 pieces of flat circular and blackish color approximately 2 c.m. in diameter in each bodies found in the abdominal cavity.
An irregular shaped bodies whitish color also found in abdominal cavity.
In my opinion the death was due to haemorrahage and shocked resulting from the above mentioned wound caused by gun shot which was antemortem and homicidal in nature.”

He proved the post-mortem report as Exhbt. 4, and his signature on it 4/1.
In cross-examination he stated that if anybody sustained such type of injury may or may not die instantly.  
P.W. 12 Ruhul Amin a resident of Maddyam Napithkhali. He deposed that accused and the deceased were his relations.
In cross-examination he stated that on 15-12-2001 at 9.15 p.m.  he was in his home. He rushed to the P.O. and found 20/30 people assembled there.

P.W. 13 Monjur Ahmed a local witness and a resident of Maddyam Napithkhali. He signed in inquest report (Exhbts. 5, 5/1). On 16-12-2001 Police seized some wearing apparels of the deceased in his presence and prepared seizure list (Exhbts. 6, 6/1). He identified the accused on dock.

In cross-examination he denied the suggestion that at the relevant time he was not present in his residence.

P.W. 14 S.I. Md. Jahir Uddin deposed that on 16-12-2001 he was attached with Idgah Police camp under Cox’s Bazar Police Station and at 1.30 a.m. he held inquest upon the cadaver of Syed Karim and prepared report(Exhbts. 5, 5/2) and sent the cadaver to the morgue for autopsy. He visited the P.O. and prepared sketch map and index (Exhbts. 8, 8/1) and Exhbts.9, 9/1). He recorded the statements of the witnesses under section 161 Cr.P. C. Thereafter submitted charge sheet against the accused Nurul Kabir and Manjur Alam.

In cross-examination he stated that he did not find any blood stained earth and did not send the blood stained apparels to serological expert. On 16-12-2001 at 9.00 a.m. he went to the P.O. He did not record the statement of informant under Section 161 Cr.P.C. P.W.7, did not state to him that he was an employee of Napithkhali salt industry. P.W. 4 Joinab Begum, did not state to him that after parking of motor cycle she heard the sound of gun fire and identified Monjur by the electric light and accused Nurul Kabir running away.

P.W. 15. C.I.D. Inspector Tanmoy Roy deposed that on 23-05-2005 he was attached with CID camp Cox’s Bazar. On 07-08-2002 he took up the investigation, visited the place of occurrence and seized some alamats and recorded the statements of the witnesses under Section 161 Cr.P.C. He submitted charge sheet against the accused Nurul Kabir and Monjur Alam.

In cross-examination he stated that he examined some of the witnesses on two occasions. On 08-08-2002 for the first time he went to the place of occurrence. He examined P.W. 5 Md. Hefajat ULlah on 20-12-2002, who did not state to him that Monjur Alam carried weapons. P.W. 6 Faridul Alam did not state to him that Monjur Alam was carrying arms and running away. He examined PW.2 on 18-10-2002. He examined P.W. 4 Joinab Begum on 13-10-2002 who did not state to him that Muslem, Farid, Monjur were in P.O. P.W. 7 Jaker Ahmed did not state to him that he identified accused Monjur Alam by electric light and after occurrence Shah Alam, Shahjalal, Hefajatullah master happened at the P.O. P.W. 8 Shahjalal did not state to him that at 9/9-30 he was going to the residence of Syed Karim, P.W. 9 Jafar Ahmed did not state to him that Shahjalal, Shah Alam, Hefajatullah happened at the P.O. and identified the accused by torch light. He denied the suggestion that without proper investigation he submitted a perfunctory report.

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

On appraisal of the evidence on record it transpires that in course of trial prosecution in all examined 14 witnesses, of them P.W.1 is the informant. P.Ws. 2-4 happened at the scene and heard the verbal dying declaration of the deceased Syed Karim. P.W.5 was a local witness but he was declared hostile by the prosecution. P.Ws. 6,7,9, 10, 12 are the local witnesses. P.W. 11 held autopsy upon the cadaver. P.W. 13 is the witness of the inquest report. P.W. 14 and 15 are the investigating officers who submitted charge sheets.

It is pertinent to point out that the prosecution case absolutely rest on verbal dying declaration of the deceased Syed Karim and P.Ws. 1,2,4,6,7,9,11,12 and 13 were examined to corroborate the dying declaration.
At the very outset and for the convenience of understanding section 32 of the Evidence Act reads as hereunder:

Section-32 : Case, in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead ,or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an  amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant  facts  in the following cases:
        (1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
        Such statements are relevant whether the person who made was or not; at the time when were made, under expectation of death, and whatever may be nature of the proceeding in which the cause of this death comes into question.”
  1. ……………………………………………
  2. .…………………………………………….
  3. .…………………………………………….
  4. .…………………………………………….
  5. .…………………………………………….
  6. ..……………………………………………..
  7. .……………………………………………..
The principles governing dying declaration were summed up as under:
  1. It is neither a rule of law nor of prudence that a dying declaration cannot be acted upon without corroboration (Mannu Raja v. State of MP. (1976) 2 SCR 764: A 1976 SC 2199: 1976 Cri LJ 54;
  2. If the Court is satisfied that the dying declaration is true and voluntary it can base a conviction on it, without corroboration (State of UP v. Ram Sagar Yadav, A 1985 SC 416: 1986 Cri LJ 836; Ramavati Devi v. State of Bihar, A 1983 SC 164: 1983 Cri LJ 221 ; Ajit Singh v. State of Punjab, 1998 Cri LJ 3460( P & H);
  3. The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination and the deceased had opportunity to observe and identify the assistants and was in a fit state to make the declaration (Rama Chandra Reddy v. Public Prosecutor, A 1976 SC 1994: 1976 Cri LJ 1548);
  4. Where a dying declaration is suspicious it should not be acted upon without corroborative evidence (Rasheed Beg v. State of M.P. (1974) 4 SCC 264: A 1974 SC 332: 1974 Cri LJ 1548);
  5. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected( Kake Singh v. State of MP A 1982 SC 1021: 1982 Cri. LJ 986);
  6.  A dying declaration which suffers from infirmity cannot form the basis of a conviction (Ram Manorath v. State of U.P. 1981 SCC( Cri)281: 1981 Cri LJ 168);
  1. Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected (State of Maharshtra v. Krishnamurthi Laxmipati Naidu, A 1981 SC 617: 1981 Cri. LJ 94);
  2. Equally, merely because it is a brief statement it is not to be disc-arded. On the contrary, the shortness of the statement itself guarantees truth (Surajdeo Oza v. State of Bihar, A 1979 SC 1505; Cri. LJ 1122);
  3. Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail( Nanahau Ram v. State, A 1988 SC 912);
  4. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (State of UP v. Madan Mohan A 1989, SC 1519: 1989 Cri LJ 1485).
Dying declaration if found acceptable alone can form the foundation for a conviction. The General rule is that all oral evidence must be direct viz, if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in S. 60. The eight clauses of S.32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are: firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might defeat the ends of justice and, secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. These aspects have been eloquently stated by Eyre L CR in R.V. Wood Cock(1789) 1 Leach 500.
 
The situation in which a man is on death bed is so solemn and screen when he is dying that the grave position in which he is placed, is the reason in law to accept inveracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice  because the victim being generally the only eye witnesses in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
 
Though a dying declaration is entitled to a great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corrobor-ation is merely a rule of prudence.
 
Dying declaration if found acceptable alone can form the foundation for a conviction. The rule requiring corroboration is merely a rule of prudence.

In the case of Salim(Md.) V. State 54 DLR -359 held :

“The dying declaration of victim has not been reduced to writing, yet when it has been proved by overwh-elmming ocular evidence to prove the guilt of accused-appellant, the dying declaration of victim itself stands out as a strong piece of evidence proving the guilt of the appellant.”
 
P.W.1, brother of the deceased, having had heard the gun-fire and screaming of the deceased rushed to the P.O. along with others namely P.Ws.2, 4 and 7, to whom the victim Syed Karim stated that accused Nurul Kabir inflicted gun fire and running away. They also found accused Nurul Kabir running away towards north. Later on P.Ws. 6 and 9 happened at the scene they also found the accused Nurul Kabir running away and heard that the accused Nurul Kabir inflicted gun-fire upon deceased Syed Karim. So the evidence of all the above prosecution witnesses in respect of hearing the verbal dying declaration of the deceased and running away the accused Nurul Kabir are consistent, uniform and corroborative with material particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses, having no reason whatsoever to depose falsely against the condemned-prisoner. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility.
It is true that the case was investigated twice by the two investigating officers so obviously the examination of the witnesses will occur in two different occasions. So the same will not prejudice the accused in any manner. Furthermore there are some minor discrepa-ncies in respect of circumstantial facts which can not be denoted as contradictions and affe-cted the merit of the case. With that regard we must bear in mind that the discrepancies have to be distinguished from the contradict-ions whereas contradictions in the statements of witnesses may be fatal for the prosecution but minor discrepancies in evidence will not make the prosecution case doubtful where the discrepancies are of minor character and do not go to the root of the prosecution story and do not shake the basic version of the witnesses, they need not be given much more importance and their testimony should not be jettisoned.

It appears that the defence unsuccessfully tried to make out the case that blood stained earth was not seized at the relevant time but it is in the evidence that it was diminished by walking and I.O. did not find it at or about the time of occurrence. Moreover the learned Counsel repeatedly urged that the gun fire was inflicted from the back but the post-mortem report does not support the same. So, we are unable to accept it. Therefore, we find the complicity of the accused Nurul Kabir with crime of murder is well proved and the Court below rightly and legally convicted him.

Moreover the impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. So the grounds urged and contentions advanced by the learned Counsel for the condemned prisoner are not the correct exposition of law. However, the condemned-prisoner was aged about 28 years when he was examined under Section 342 Cr.P.C. The record indicates that the condemned prisoner is not a hard criminal, he cannot be at all characterised to be a menace to the society. Taking an account of aggravating and mitigating circumstances, ends of justice will be met if death sentence is altered to one of imprisonment for life. Condemned prisoner Nurul Kabir, thus stands sentenced to imprisonment for life.

In the light of discussions made above we find no evidence against Monjur Alam for abating accused Nurul Kabir to commit murder of deceased Syed Karim. Most of the witnesses merely stated that the accused Monjur Alam was roaming around the place of occurrence for certain moment but the deceased Syed Karim himself did not disclose such fact to his inmates and other neighbouring witnesses. So we failed to discover any merit in Criminal appeal no. 4347 of 2005.

In the result the reference is rejected with a modification of sentence to the above terms;

The Criminal appeal no. 3778 of 2009 and Jail appeal no. 1055 of 2005 are allowed in part with a modification to the effect that the condemned prisoner Nurul Kabir is convicted under Section 302 of the Penal Code and sentenced to suffer imprisonment for life.

In view of the provisions laid down in Section 35A(1) of the Code of Criminal Procedure the total period the condemned prisoner have been in the custody before conviction in connection with this offence shall be deducted from the sentence of imprisonment for life awarded to him.

Criminal appeal no. 4347 of 2005 is dismissed.

The office is directed to send down the records at once.

Ed.