Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Sunday, April 23, 2017 07:53:01 PM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

Delay in lodging FIR under certain situation is sustainable

By
31st-Dec-2016       Readers ( 351 )   0 Comments
Comments
Share your thought
Post a comment »
Read all (0) »

(From previous issue) :
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."
 (To be continued)
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.

0 Comments. Share your thoughts also.
Write a comment
Tariff
Add Rate

News Archive

Inside The New Nation

Cricket »

Pacer Taskin becomes Atom Gum brand ambassador


Bangladesh pacer Taskin Ahmed has been appointed as the brand ambassador of Atom Gum, a product of PRAN Confectionery Limited, said a press release.It was announced by Shakhawat Ahamed, head of marketing of PRAN Confectionery Limited at a program held in the city's hotel on Saturday. The Tiger pacer will ...

Cricket »

Shakib new T20 I Captain of Bangladesh Cricket team


Sports Reporter :Shakib Al Hasan has been appointed Captain of Bangladesh National Cricket (T20 I) team.Earlier, Mashrafe Bin Mortaza, the Captain of Bangladesh National Cricket (ODI & T20 I) team declared his retirement from T20 I format. Bangladesh Cricket Board (BCB) announced on Saturday that best all-rounder of world cricket ...

Editorial »

Dengue : Now an annual visitor


THE capital is yet again experiencing an early outbreak of dengue and untimely rains may be to blame. Like last year, Aedes mosquitoes, transmitter of the dengue virus, have bred early this year alarming authorities and city dwellers and health officials say there are chances their number would be larger, ...

Entertainment »

Mosharraf, Jui`s Eid play Shob Choritro Kalponik Noi


Entertainment Report :On the occasion of coming Eid, popular celebrity couple Mosharraf Karim and Robena Reza Jui worked together in a special play titled Shob Choritro Kalponik Noi. They also acted in the play like real life characters. Shooting of the play was done recently in the city’s Uttara area. ...

Entertainment »

What Kangana has to say about Azaan controversy


Actress Kangana Ranaut says she has no problems with Azaan but feels what Sonu Nigam said should be respected and discussed.  Sonu Nigam, in a series of tweets, had described the use of loudspeakers to broadcast sermons and calls to prayers by mosques, temples and gurudwaras as hooliganism. When asked ...

City »

Human capacity for achieving SDGs underscored


Right based civil society organizations urged the government to put effective strategies and actions to increase human capacity locally in order to achieve the Sustainable Development Goals (SDGs). They also opined that the human capacity would see a surge once the government strengthens its institutional capacity and provides platforms for ...

International »

Russian FM presses Tillerson over Syria probe


AFP, Moscow :Russian Foreign Minister Sergei Lavrov voiced "regret" in a phone call with his US counterpart at Washington's opposition to a Moscow-backed plan to investigate an alleged chemical attack in Syria.In the call with Secretary of State Rex Tillerson which "took place at US initiative," Lavrov raised the probe ...

Editorial »

Over-dependence on Indian electricity supply


ENERGY sector deals signed with Indian companies so far clearly indicate how India has been singularly un-tapping our energy market making us disproportionately dependent on the big neighbour. These contracts as reported by a national daily on Friday including those signed early this month had already handed over the largest ...

Entertainment »

Neel Monihar Lucky Akhand


Sheikh Arif Bulbon :When we recall the memories of old sad romantic songs the name of legendary singer-composer Lucky Akhand will come first. He will last long forever in the minds of many music lovers by virtue of his outstanding rendering style and composition who died on April 21 after ...

Cricket »

Inhabitants of Satkhira unhappy as Mustafiz cannot play in IPL


Sports Reporter :The inhabitants of Satkhira are not happy as Mustafizur Rahman cannot play in Indian Premier League (IPL) 2017. Earlier, 'Wonder Boy' Mustafizur Rahman showed a gimmick performance in his debut of IPL. He played for Sunrisers Hyderabad and played a key role for Sunrisers Hyderabad to clinch the ...

City »

Bangladesh Krishak Samity and Bangladesh Khetmajur Samity staged a demonstration in front of the Jatiya Press Club on Friday to meet its various demands including declaration of flood-affected haor areas as disaster-prone areas.


.

International »

Putin says Russian people will choose his successor via ballot box


Reuters, Moscow :Vladimir Putin said on Thursday that only the Russian people will choose who succeeds him as president, through the electoral process.Russia will hold a presidential election in March next year. Putin has not said whether he will run or not, but is widely expected to go for what ...

Editorial »

Stop false cases to keep in jail without trial


SUPREME Court Legal Aid Committee (SCLAC) Chairman Justice M Enayetur Rahim said on April 18 a specific law is required to rehabilitate people released after languishing in custody for long periods due to delay in trial proceedings, as per a report of a local daily. Under the law of tort, ...

Sports »

Serena expecting baby this year


Sports Desk :It's another love game for Serena Williams: She is pregnant - and, based on the timeline she offered, she already was when she won the Australian Open.A spokeswoman for Williams, Kelly Bush Novak, wrote in an email to The Associated Press on Wednesday: "I'm happy to confirm Serena ...

City »

BNP Secretary General Mirza Fakhrul Islam Alamgir, among others, at a rally organised by the party at the Jatiya Press Club on Thursday in protest against enforced disappearance of the party leaders including M Ilias Ali.


 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news