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Delay in lodging FIR under certain situation is sustainable

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(From previous issue) :
22. PW 4 Belal Hossain is also a neighbour of the informant, who has narrated that the occurrence took place on 17-7-2006 at about 9-00 am. He was going to see his land. All on a sudden, he heard hue and cry, from the betel leaf field of PW 1. Then and there he went to the spot and saw the victim Shaheen lying in the field with many injuries on his body including hand, shoulder and abdomen and entrails came out. He also saw accused Nazrul having bloodstained hasuya in hand running away. Having tied the abdomen with napkin [gamchha] the victim was sent to Kushtia Sadar Hospital in a Nosimon vehicle. On 21:7-2006 he died in the hospital.
23. In course of cross-examination he has replied that' the victim was wearing a pant and a T-shirt but he could not remember the colour of the clothes. Around 8/10 persons went to the spot on hearing hue and cry. He has confirmed in reply that he narrated to the investigation officer' that Nazrul was fleeing away with a blood stained kiris. This witness has also corroborated the evidence of former witnesses including PW I, the informant of the case. No discrepancy is appeared in his evidence with the evidence of other witnesses.
24. PW 5 Tozammel Haque states in his deposition that on 17-7-2006 in the morning at 9-15 am he went to the place of occurrence on hearing hue and cry and saw victim Shaheen with severe shoulder and hand injuries lying on the gr6und and his entrails came out. And he had seen mother and sister of the victim weeping nearby. They informed him that accused Nazrul dealt blows on the body of the victim with hasuya [Kiris]. Then they having tied the belly sent the victim to Kushtia Sadar Hospital in a Nosimun vehicle. He heard later that victim died at Dhaka' Medical College Hospital.
25. In course of cross-examination, he has replied that he remained present at the place of occurrence for about half an hour and two policemen came while he was there. This witness corroborates the evidence of PW 4 without any contradiction. He has narrated the incident in the same tune as PW 4 narrated in his deposition.
26. PW 6 Mukbul Malitha has testified that the occurrence took place on 17-7-2006 at 9-15 am. He was then at home. He rushed, to the place of occurrence on hearing hue and cry and saw victim Shaheen, son of PW I, lying nearby at the betel leaf field with blood stained injuries and the entrails of the victim came out. He also saw wife of PW 1 and his two daughters namely China and Champa weeping and saying that Nazrul cut Shaheen with kiris and left the place instantly. Victim Shaheen also narrated that Nazrul cut him. Thereafter, having tied with napkin they sent him to Kushtia Sadar Hospital in a Nosimun vehicle. Subsequently, he was shifted to Dhaka Medical College Hospital wherein he died on 21-7-2006.
27. In course of cross-examination, this witness has responded that informant and the accused both are close to him. In reply he said Idris Miah, father of the accused, is his teacher. Around 22/30 people rushed to the spot and subsequently, many other persons came there. Daughters namely China and Champa of PW 1 were crying there and they told about Nazrul's involvement in the attack of the victim. This witness echoed in the same tune as stated by PWs 4 and 5.
28. PW 7 Mizanur Rahman, son of PW 1 and full-brother of the victim, testifies that the occurrence took place on 17-7-2006 at 9-15 am. He was in the field at the relevant time. On hearing hue and cry he reached the spot and saw his brother lying on the ground with bloodstained injuries. Thereafter, they took him to Kushtia Sadar Hospital. They took him to Dhaka Medical College Hospital as his condition deteriorated. On the way to Dhaka victim Shaheen told him that Nazrul made attack on him with hasuya. The victim could not speak much because his was in a critical condition. On 21-7-2006 around 7-00 pm he succumbed to his injuries at Dhaka Medical College Hospital. On 22-7-2006 around 12-00 am one SI Nazrul Islam held the inquest report of victim Shaheen and took his signature in it. Inquest report is marked as exhibit-2 and his signature as exhibit-2/1 Dead body was examined in the morgue of Medical College and buried him after his dead body was taken to village home. On 23-7-2006 his father lodged an FIR with the police station.
29. On 24-7-2006 Daroga Rois Uddin rushed to the place of occurrence and prepared seizure list after being seized blood stained full plant and T-shirt of the victim and took his signature in it: The seizure list is marked as exhibit 3 and his signature as eXhibit-3f1 and the seizing apparels are marked as material exhibit-1 (one) series.
30. In course of cross-examination this witness has replied that regarding treatment and death of the victim were informed to his father and before lodging FIR they have narrated the incident to him. On perusal of the evidence of this witness it, appears that he was informed by victim that accused Nazrul made attack on him with hasuya and this witness all the time, during treatment of the victim, was with him. As he was ,with the victim all the time, he became the seizure list witness of the bloodstained apparels seized by. the investigating officer. It is further evident that the defence did not take denial that the apparels seized by the investigating officer were not belonging to the victim.
31. PW 8 Chamili Khatun, daughter' of PW 1 and the sister of the deceased, narrates in her deposition that the occurrence took place on 17-7-2006 in the morning at 9-15 am. She was doing' work in the pond nearby house at the relevant time. All on' a sudden she heard hue and cry, then she went to the betel leaf field and saw Nazrul and Habib having hasuya and stick in hands coming out of the betel leaf field. The bloodstained hasuya was in the hand of Nazrul. She entered the betel leaf field and saw her brother Shaheen lying in. the field with severe injury and entrails came out of the belly and he was also groaning. On query her brother Shaheen told her that Nazrul gave him blows with hasuya. Locals came to the spot while they were shouting. They sent him to the hospital for treatment having tied the abdomen with a towel. As his condition. deteriorated was sent to Dhaka Medical College Hospital wherein he died on 21-7-2006. His father. being, informant filed the case.
32. In course of cross-examination, she has replied that her father was not at home at the time of occurrence. It has revealed from the cross-examination of this witness that while the victim was in Dhaka Medical College Hospital for treatment PW 1 made· communication with the attendant of the victim. As it appears from the evidence of this witness that defence has failed to discredit her evidence. Rather the evidence of this witness corroborates the evidence of PW 7 in a same way. No major contradiction we find in· the evidence of this witness.
33. PW 9 China Khatun states in her deposition that the occurrence took place on 17-7-2006 in the morning around 9-00 o'clock while she was standing on the bank of the pond. She went to the place of occurrence on hearing hue and cry. And saw accused Nazrul having blood stained hasuya in hand fleeing away and having heard the groaning she. entered the betel leaf field and saw her brother lying in the field and entrails came out of his belly. Her brother told her that Nazrul made attack and cut him. She then shouted in a weeping condition. Locals came there from around their house. PW 3 asked her how it happened then she replied that Nazrul did it. With the help of locals her brother was sent to Kushtia General Hospital. As his condition deteriorated he was shifted to Dhaka Medical College Hospital wherein he died four days after the incident.
34. In course of cross-examination this witness has replied that she rushed to the place of occurrence on hearing shouting and saw her brother lying on the ground with abdomen injury. From her evidence it has emerged that at the time of occurrence she was very near to the place of occurrence and that was why she could be able to see accused Nazrul running away with blood stained hasuya. This witness has also corroborated the evidence of PWs 7 and: 8 in a same manner.
35. PW 10 Rezaul Karim is a seizure list witness. In his presence a blood stained full' pant and T-shirt along with a towel had been seized and he put his signature in the seizure list which has been marked as exhibit 3/2. This witness has recognized the seizing apparels in court. From defence no suggestion has been given that the blood stained wearing apparels were not belonging to the deceased of the case. Moreover, this witness has denied the defence suggestions that he' has given false evidence against the accused because of relationship with the informant party.
 (To be continued)
36. PW 11 SI Rois Uddin Khan, the investigating officer of the case, 'testifies that he was on duty at Veramara police station when the occurrence took place. The officer-in-charge of the said police station assigned him the case to investigate. During investigation he visited the place of occurrence, analyzed the FIR, prepared the sketch map with Index, seized the alamot and recorded statements of the witnesses after examining them and collected inquest. report along with post-mortem examination report.
37. Upon conclusion of investigation, he submitted police report being Charge Sheet No. 9 dated 12-1-2007 against the four accused persons including the convict-accused. The sketch map is marked as exhibit-4 and his signature as exhibit-4/1, index is marked as exhibit-5 and his signature as exhibit-5/1.
38. In course of cross-examination he replies that he took over the charge of investigation on 24-7-2006 and analyzed all connected documents including FIR. Deceased was injured on 17-7-2006 and died on 21-7-2006 at Dhaka Medical College Hospital. The case was lodged on 23-7-2006 at 21-35 hours and cause of delay in lodging Ejaher has been stated and he visited the place of occurrence on the same day. He has denied the defence suggestions that he did not investigate the case properly and being biased submitted' charge sheet against the accused.
39. Upon assessment and evaluation of the aforesaid evidence of the witnesses it appears that the informant being informed by others instituted the case against the convict-accused and three others. He has given evidence supporting the FIR, story. PWs 2 to 6 are neighbours of the informant party and they have come forward to the court giving evidence in support of the prosecution case. The defence has not been able to discard or discredit their evidence in course of cross-examination. Rather they have confirmed the time, place and manner of the occurrence while replying the questions to the defence. Although the PWs 7, 8 and 9 are the nearest relations of the informant but their evidence corroborated each other as if they echoed their voice in a same tune. PWs 8 and 9 have categorically stated in their evidence that they rushed to the place of occurrence on hearing hue and cry and saw the victim in a critical condition and accused Nazrul running away with a blood stained hasuya in hand. It is evident that soon after the occurrence PWs 2, 4, 6, 8, and 9 rushed to the place of occurrence and saw accused Nazrul fleeing away with blood stained hasuya and the victim also told them on query that Nazrul made attack on him with sharp weapon like hasuya. The above versions of evidence could not be shaken by defence in any way. Therefore, it is very difficult to disbelieve the evidence of these witnesses as having. no contradictory events therein. Although they are not absolute eye witnesses to the occurrence but it is evidenced that they had witnessed partly of the occurrence. Even then, what victim narrated to them soon after the occurrence, is very much important for taking into consideration. In their evidence nothing has been found inconsistent in respect of departure of the accused from the scene with a blood stained hasuya, used in the attack of the victim. So such clear version of evidence is enough to be found the accused for his involvement in the attack of the victim.
40. The medical evidence i.e post-mortem examination report reveals 5 (five) severe injuries on the person of the victim-Shaheen which are as follows:
(1) Stitch wound in the turn and side of the neck 13" long and extending to the left scapular 37 stitches over this.
(2) Stitch wound extending over the right scapular 3" long 5 stitches.
(3) One stitch wound 1" long 3 stitches over the right shoulder joint,
(4) Surgical stitch wound in the Medline of the front of the abdomen 8rt long 18 stitches over there.
(5) Stitch wound 2 long in the left side of the abdomen 8 stitches over there."
41. Although doctor was not found to verify the post-mortem examination report but it has sufficient value being corroborative evidence when it is supported by other evidence. It appears from record that the trial court initially issued summons, then warrant of arrest and finally non-bail able warrant to the doctor, cited in the charge sheet even through IGP SP and the same was also communicated to the principal and director of Dhaka Medical College Hospital, which shows that all attempts have been exhausted in due course to produce the doctor but in vain. Post-mortem examination report of the dead body of the deceased even if not taken into consideration, does not weaken the prosecution case for lack of corroboration of ocular witnesses. Nevertheless, Statute itself contemplates that the report of post-mortem examination required to be used as evidence, and the civil surgeon or other medical officer who made the report is dead or is capable of giving evidence or is beyond the limits of Bangladesh and his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable such report may be used as evidence.
42. In the present case it appears that the trial judge made several attempts to bring the doctor before the court for which some delay occurred. Lastly he took final decision considering the medical examination report as corroborative evidence, which is absolutely justified in the eye of law. Even then, such postmortem examination report being corroborative evidence is not needed in this case as material evidence is available to prove the allegation brought by PW 1. It finds support from the case of State vs Ful Mia, reported 5 BLC (AD) 41 where it was held as under,
"The post mortem report was filed under Section 509A of the Code of Criminal Procedure as the Doctor was not available.
Section 509A CrPC contemplates certain procedure but those were not complied with amid for that the post-mortem report could be left out of consideration. As the factum of murder has been proved by four eye-witnesses the post-mortem report as corroborative evidence is not absolutely essential. "
43. It has emerged in this case that requirements of Section 509A of the code of criminal procedure were complied with and Doctor's attendance could not be procured because he was not available and, as such, the use of post-mortem examination report under Section 509A of the CrPC as corroborative evidence is proper and justified by the trial court.
44. Defence has tried to say that Panna Bahini or third party might have killed the victim for extortion money but it is not found in evidence during cross-examination by the defence that when and where at what time Panna Bahini or third party demanded subscription from the informant party. The further claim of the defence is that the FIR was lodged some days later which makes the prosecution case weaken. It is true that FIR was lodged 6 (six) days after the occurrence. But it should be worthy to forget. that the victim's condition was so deteriorating time and again after occurrence, for which all eyes look at the next, consequence of the victim. Therefore, the explanation given by the informant for delay in lodging the FIR is sustainable.
45. There has been no direct evidence in this case that before occurrence took place the perpetrator made a plan or preparation to kill the victim. But the nature of injuries caused by the accused with hasuya, a sharp weapon, proves that by his act and conduct eventually resulted in the death of the victim. The injuries caused by the accused are so severe that makes definite cause of death of the victim. So previously preparation or plan is not material particular in the instant case. Intention to kill the victim depends on the action of the perpetrator; it may come to the effect instantly or by making pre-plan previously. In this case the preparation and plan to commit murder discloses from the previous action of the deceased who some days before gave punishment to the accused for his involvement in an immoral conduct and released some lands from their [accused] illegal possession. Being enraged the accused made attack to kill the victim when he got him alone in the betel leaf field at the relevant time.
46. In this respect we find support from the decision held in the case of State vs Montu alias Nazrul Haque, reported in 44 DLR (AD) 287, which is run as follows:
"It is true in this case there was no preplan of the accused to kill the victim their common intention to kill developed on the spot when they all simultaneously fell upon the victim as soon as he appeared on the scene."
47. It is not at all wise in all cases to find an accused guilty if he remains absconding. Absconding by itself is the conclusive proof of guilt of the accused but it lends weight to the circumstantial evidence against him.
48. In the present case we find three other persons as accused who are close relatives to the convict-accused. One is his wife, then his full brother and third one is his father. All of them appeared in the case and got acquitted at the trial but he did not bother to attend the trial court in the case while they all were put on trial. He obviously knew that his three close relations became involved in the legal battle on a charge of murder. If he was not involved with the crime as alleged by the prosecution, he ought to have faced the trial without any hesitation but he did not do so. Although record shows that all due process of law was exhausted by the court below to bring him in the book but he evaded trial going into hiding. Under such circumstances he cannot say now that he had no knowledge about the case filed by the informant, PW 1. It finds support from the decision in the case of Zakir Hossain vs State, reported in 55 DLR 137 where court opined that,
"Accused remained absconding with clear guilty knowledge about his overt act in the occurrence resulting in the murder and, as such, his absconsion will create adverse opinion against him."
49. The contention of learned defence lawyer is that PWs 1, 7, 8 and 9 are the interested witnesses as they are brother, sisters and father of the victim. In reply to that effect it can be said that when a person comes under an attack by assailant, his nearest relatives will come forward to save and look after him, is quite natural.
50. In the instant case we find PWs -7, 8 and 9 on hearing hue and cry rushed to the place of occurrence soon after and saw the incident on their own eyes partially. Interested witness by itself cannot be a good ground to discard the evidence if one is found to be a truthful witness and telling the truth. It finds support from the decision in the case of State vs Ful Mia, reported in 5 BLC (AD) 41, in which our Apex Court opined that,
"The evidence of eye-witnesses cannot be discarded on the ground that they are interested witnesses and such evidence is admissible in evidence if they are found to be truthful witnesses and telling the truth."
51. The evidence of all prosecution live witnesses is found consistent, uniform and corroborative with each other in all material particulars. They consistently prove the time, place [exhibits-4 and 5] and manner of the occurrence. No discrepancy is found in respect of time, place and manner of the occurrence.
There is nothing to disbelieve in evidence of the competent witnesses of the prosecution case. More so, it has been corroborated by material exhibits-I, l(a), l(b) and also post-mortem examination report. And as such, it can be safely said that prosecution has been able to prove the case beyond reasonable doubt by the impartial and unbiased witnesses.
52. Learned State Defence Lawyer appearing for the accused has contended lastly that court has ample power to .give lesser sentence instead of death penalty if the prosecution case is proved beyond all reasonable doubt. In the present· case, the alleged hasuya" used by the accused in the attack of the victim was not recovered and that is why the same was not produced before the court. The investigating officer of the case did not make any attempt to recover the alleged weapon from any places. He ought to have carried out such vision for the interest of proper investigation. More. s6, the victim of the case died four days after the occurrence.
53. However, it is very difficult task on the part of a judge to decide what would be the quantum of sentence to be awarded upon an accused for committing an offence. We find some support from the decision in the case of Nawshar Ali Sarder vs State, reported in 39 DLR (AD) 194 [para 11] their Lordships opined that,
"Section 302 which punishes 'murder' does not specify in which case death sentence should be given and in which case transportation for life to be awarded, but leaves the matter to the discretion of the court, Every case should be considered m the facts and circumstances of that case only".
54. Considering the decisions cited above, the testimonies on record and the facts and circumstances of the case we are of the view that justice will be met if the impugned judgment and order of conviction and sentence of death to accused Md Nazrul Islam is altered  and reduced to imprisonment for life instead of death.
55. In the result, the Death Reference is rejected and the order of sentence of death passed by the learned Sessions Judge, Kushtia against the condemned-accused Md Nazrul Islam finding him guilty under Section 302 of the Penal Code is commuted to imprisonment for life with a fine of Taka 5,000 (five thousand) in default, to suffer rigorous imprisonment for 6 (six) months more.
Let a copy of this judgment and order along with lower court records be sent to the learned sessions Judge, Kushtia for information and necessary action at once.

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