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Delay in lodging FIR under certain situation is sustainable

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31st-Dec-2016       
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(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.

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