Appellate Division :
Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Mirza Hussain Haider J
Jharu and another. ... Appellants
November 15th, 2016
Evidence Act (1 of 1872)
A single testimony if convincing and found to be full complete and self-contained, whether corroborated by other witness or not, is sufficient to bring home the charge and, as such, there will be no illegality in convicting an accused on the basis of such single evidence . ...... (12)
Md Abdul Majid Sarkar vs the State, 40 DLR (AD) 83 ref.
Nahid Sultana, Advocate-on-Record-For the Appellants.
Basir Ahmed, Assistant Attorney-General-For the Respondent.
Mirza Hussain Haider J : This Jail appeal has been filed against the judgment and order dated 7-7-2013 & 8-7-2013, passed by the High Court Division in Criminal Appeal No. 2500 of 2008 heard along with Criminal Appeals No. 2404 of 2008, 2551 of 2008 and Jail Appeals No. 421-423 of 2008 and also Death Reference No. 39 of 2008 allowing Criminal Appeals No. 2500 of 2008, 2551 of 2008 and Jail Appeal No. 421 of 2008 and thereby setting aside the judgment and order of the trial Court so far it relates to accused Abul Kalam Azad and Amirul and also dismissing the Criminal Appeal No. 2504 of 2008 and Jail Appeals No. 422 of 2008 and 423 of 2008 and affirming the judgment and order of conviction and death sentence passed upon the condemned prisoners Mokim and Jharu and thereby accepted the said death reference.
2. Facts, leading to filing of this Jail appeal, in a nutshell, are:
That on 28-6-1994 at about 10-00/10-30 am, the victim Monowar Hossain along with some people had been working in his field near the house of one Badal Sarder at ViIi age Durlovpur under Police Station- Alamdanga, District- Chuadanga. Suddenly it started raining and all of them took shelter in the house of Badal Sarder. At about 11-00 am a group of people including the accused Mokim and Jharu led by accused Abul Kalam Azad came to the house of Badal Sarder from inside a near-by panboroz and dragged the victim Monowar Hossain to the courtyard of that house wherein on the order of accused Abul Kalam Azad, Mokim and jharu inflicted the ram dao and a Chinese axe blows indiscriminately upon the victim Monowar Hossain resulting in his eventual death. Thereafter on arrival of the neigbouring people to the place of occurrence the accused party ran away after ensuring the death of the victim. Subsequently, Omaruddin the brother of the victim Monowar Hossain, lodged an ejahar with Alamdanga Police Station against the accused appellant and others under Sections 302/34/114 of the Penal Code, whereup-on Alamdanga Police Station Case No. 11 dated 28-6-1994 was initiated under the aforesaid sections.
3. The police, after recording the statements of the witnesses under Section 161 of the Criminal Procedure Code and on the basis of confessional statements made by accused Sabironnessa, Md Abdur Rashid, Amirul and Helal Uddin under section 164 of the Criminal Procedure Code, complete the investigation and submitted chargesheet against all the accused persons including the present appellants Jharu and Mokim under Sections 302/34/114 of the Penal Code.
4. The records being transmitted to the court of Sessions, Chuadanga, Sessions Case No. 34 of 1997 was started. Ultimately the case was transferred to the Court of Additional District and Sessions Judge, 2nd Court, Chuadanga for trial who framed the charges against all the accused persons under Sections 302/34/114 of the Penal Code which was read over to the accused persons who pleaded not guilty and thereby claimed to be tried in accordance with law.
5. The defence version of the case, as it appears from the trend of the cross-examination of the prosecution witnesses, is that the accused persons are innocent and have been falsely implicated in the case out of previous enmity and bad blood and the alleged confessional statement of the appellant Amirul is a product of police torture, oppression and maltreatment.
6. In trial the prosecution examined 17 witnesses against which the defence witnesses none. Thereafter the accused persons were examined under Section 342 of the Criminal Procedure Code. Thereafter, the learned Judge, upon hearing the parties and considering the evidence, both oral and materials on record and also upon considering the confessional statements made under Section 164 of the Code of the Criminal Procedure by the co-accused persons, found five accused persons including the present appellants, guilty of the charges under Sections 302/34/114 of the Penal Code and convicted and sentence them to death by hanging and also to pay fine of Taka. 1 (one) lac each. In addition to the above the present appellants Jharu and Mokim were also found guilty under Sections 302/34 of the Penal Code as the allegation of inflicting deadly blows upon the victim and murdering him has been proved and as such, sentenced them with penalty of fine of Taka l(one) lac but acquitted them from the other charges brought against them by judgment and order dated 17-4-2008.
7. Being aggrieved by the said judgment and order the convict Abul Kalam Azad, Jharu, Mokim and Amirul preferred the above noted criminal appeals and jail appeals before the High Court Division. On the other hand, the trial Court sent a reference under Section 374 of the Criminal Procedure Code before the High, Court Division for confirmation of death sentence which has been registered as Death Reference No. 39 of 2008. All the appeals and the death reference were heard together and by judament and order dated 7-7-2013 and 8-7-2013 the High Court Division accepted the death reference in part and confirmed the death sentence imposed upon Mokim and Jahru and thereby acquitted Abul Kalam Azad and Amirul upon setting aside the judgment and order passed by the trial court as against them.
8. Being aggrieved by and dissatisfied with the aforesaid judgment and order of the High Court Division condemned prisoners Jharu and Mokim preferred Jail Petition No. 23 of 2013 before this Division which has been registered as the instant Jail Appeal No.3 of 2016.
9. Mrs Nahid Sultana, the learned Advocate-On-Record appearing on behalf of the appellants submits that the prosecution failed to prove the case beyond all reasonable doubt against the condemned prisoners and, as such, there has been miscarriage of Justice as the accused Amirul, on the basis of' whose confessional statement under Section 164 they were convicted, has been acquitted of the charge by the High Court Division along with the mastermind of the occurrence Abul Kalam Azad who allegedly passed the order of killing the victim and, as such, the High Court Division miserably failed to acquit the appellants. She next submits that the prosecution witnesses did not corroborate each other in bringing home the charge and, as such, the impugned judgment and order of conviction and sentence as well as the acceptance of death reference is liable to be set aside.
10. Per contra, Mr Bashir Ahmed, the learned Assistant Attorney General took us through the depositions of PWs, specifically PW 1,3,5,6 and 7 along with post mortem report and submits that the indiscriminate blows by ram dao and Chinese axe inflicted by condemned prisoners Mokim and Jharu upon the victim Monowar Hossain have been categorically proved. He, submits that PWs 3, 5, 6, and 7 have corroborated each other in respect of inflicting the deadly blows upon the victim by tire condemned prisoners Mokim and Jharu and, as such, the High Court Division, on proper appreciation of this aspect, came to a correct finding and accordingly, rightly confirmed the death sentence against the present appellants. Therefore there is no scope to interfere with the judgment and order complained of herein.
11. Under these scenario we have examined the materials on record including the evidence of the PWs. It appears that PW-1 is the brother of the victim who categorically stated the occurrence including inflicting of deadly weapons blows by the condemned prisoner Mokim and Jharu in the house of Badal Sarder upon the victim Monwar Hossain. He specifically mentioned the places on the body of the victim where Mokim with his ram dao in his hand and Jharu with his Chinese axe in his hand inflicted the blows. The other PWs corroborated the evidence of PW 1 whereupon PW 3, 5, 6 and 7 categorically said:
“ঘটনার ¯'লে এসে আসামি মকিম তার হাতে থাকা রাম দাও দিয়ে ভিকটিম মনোয়ার হোসেনকে এলোপাতারি কোপ শুরু করে এবং আসামি ঝড়- তার হাতে থাকা চাইনিজ কুড়াল দিয়ে ভিকমিট মনোয়ার হোসেনের ঘাড়ে ও উহার সংলগ্ন ভারে এলোপাতারি কোপ দেয়। ভিকটিম ব্যাপক ভাবে রক্তাক্ত জখম প্রাপ্ত হয়ে মাটিতে লুটিয়ে পড়লে আসামি মকিম ও আসামি ঝড়- এবং তাদের সংগীয় লোকজন ঘটনা ¯'ল থেকে চলে যায়।
12. This version has also been corroborated by PWs 4, 5, 6 and 7. On close scrutiny of the cross examination by the defence it appears that the corroborative evidence of the aforesaid PWs could not be shaken by the defence.
The corroborative testimony of the witnesses being sufficient to prove the prosecution case beyond reasonable doubt there remains nothing which could help the appellants to take advantage. From the evidence of PW-ll the Doctor, who conducted the post mortem, it appears that the deadly weapon blow inflicted upon the victim Monowar Hossain as stated by PWs are found to be the reasons of death, which were ante mortem and homicidal in nature. So when the prosecution specifically proved in their corroborative evidence as to on which part of the body of the deceased the deadly injuries were inflicted and the same being supported by the post mortem report and when the prosecution specifically proved that those injuries were inflicted by the condemned prisoners Mokim and Jharu (appellants herein) there remains no doubt in finding them guilty of murdering the victim. A single testimony if convincing and found to be full complete and self Contained, whether corroborated by other witness oc not, is sufficient to bring home the charge and, as such, there will be no illegality in convicting an accused on the basis of such single evidence. In the present case the eye witnesses PW 3, 5-7 categorically gave vivid description of inflicting indiscriminate blows upon the victim by the appellant Mokim and Jharu, with the deadly weapons used by them, which are supported/ corroborated by other witnesses as well as by the post mortem report resulting death of the victim and such evidence could not be shaken by the defence. So the Courts below did not commit any illegality in finding the appellants guilty.
13. Moreover, upon reading the confessional statements, which have been corroborated by other accused persons as well as all the PWs, as a whole, it cannot be altogether ignored that the appellant with the intention of killing the victim inflicted indiscriminate blows by sharp cutting weapon used by them which attracted Section 300 "thirdly" of the Penal Code which reads as follows:
"300. Except in she cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Thirdly, lf it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
14. Since this clause provides culpable homicide is murder if such bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. This clause comprehends generally the commission of intentionally bodily injury which is intended to be inflicted is sufficient in the ordinary course of nature to cause death. When such act is committed with the knowledge that death is the ultimate result of such act or infliction of such bodily injury has probability of causing death the offence is murder.
The core of this section is that the knowledge which accompanies the act must be death. The act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. The confession as has been corroborated by the PWs, and supported by the post mortem report, clearly reveals that such bodily injury have been inflicted by the present appellants with knowledge and motive to kill the victim and has resulted death of the victim. Therefore the convict appellants cannot escape from the charge of murder punishable under Section 302 of the Penal Code. In the case of Md Abdul Majid Sarkar vs the State reported in 40 DLR (AD) 83 this Division held "when the act was done with the intention of causing such bodily injury intended to be inflicted as was sufficient in the ordinary course of nature to cause death. It falls clearly within the 1st, 2nd & 3rd clauses of S. 300 PC."
15. Apart from the above, the Magistrate who recorded the confessional statement of Amirul in his evidence as PW 9 categorically proved the statement under Section 164 which has been made upon following the legal procedure. But the High Court Division found the confessional statement of Amirul to be a retracted one as the same was not· voluntary and thus the High court Division, upon considering the evidence, found that other than the confessional statement the prosecution could not prove the offence beyond all reasonable doubt against Amirul. Accordingly the High Court Division awarded him the benefit of doubt. Thus the confessional statement of Amirul cannot be the basis of conviction of the present appellants. Actually from the discussion of the evidence of PWs 1,3,5,6 and 7 who are the eye witnesses of the occurrence, and their testimony regarding inflicting the deadly blows upon the victim being duly corroborated by the PW 11, the doctor who conducted the post mortem, the High Court Division categorically found that the charge against the condemned prisoner Jharu and Mokim have been proved and accordingly found them guilty for conjointly killing the victim Monowar Hossain at the courtyard of the house of Badal Sarder. After making elaborate discussions on the basis of the fact and law the High Court Division ultimately accepted the death reference against Mokim and Jharu and thereby affirmed the sentence imposed upon them.
16. From the discussions made hereinabove and the law as has been looked into by the High Court Division we are of the view that the condemned prisoner appellants Jharu and Mokim failed to make out a case in their favour by which the judgment and order of conviction and sentence passed by the trial Court and affirmed by the High Court Division can be interfered with.
Accordingly we do not find any merit in this appeal. Hence the jail appeal is dismissed.