(From previous issue) :
39. In respect of these material exhibits no suggestion has been given by the defence that these materials are not belonged to the victim of the case and subsequent death of the victim was not occurred due to the above two injuries inflicted by the condemned prisoner as deposed by the prosecution witnesses. It is not found in evidence that the defence put any suggestion to the witnesses that the victim died due to other reasons or negligence of doctors.
40. It appears from the impugned judgment of the trial court that the victim earlier filed a case against the condemned prisoner on an allegation that he assaulted her for demand of dowry at Taka 20,000 and sent her to her father's house for meeting his demand. Subsequently the victim was taken back to the house of the condemned prisoner following an amicable settlement. But he made remarks thereafter saying that he would show the music for lodging the case against him so that such initiative does not arise further in future. It has been narrated in the ejaher, exhibit-l that,
Ó†mB †_‡K wewfbœ mgq Zvnviv Avgvi †evb‡K ûgwK w`qv e‡j †h, †Zv‡K †Km Kivi gRv †`Lve| Avi †hb †Km Ki‡Z bv cvwim †mBiKg, e¨e¯'v Ki‡ev Gevi......................
41. Having' considered the facts of the earlier case and subsequent threat it has meant that the condemned prisoner had gathered some grievances in his mind to take action against his wife as to why she made allegation against him by filing a criminal case. So, from this version of evidence it is clearly found probe that the condemned prisoner made himself prepared from before to take revenge on the person of the victim and subsequently he did it on the day of occurrence within his custody. Moreover, the injury inflicted on the head of the victim is so severe that became enough to cause the death. So, the intention of killing is clearly found present in the act and conduct of the condemned prisoner. Therefore, we do not find any cogent ground on this point to consider in the argument of the learned Advocate for the defence.
42. Having considered the above ground and attending circumstances of the case, it appears that the condemned prisoner made attack intentionally on the person of the victim to take his revenge liquidating her forever.
43. Now we are to see whether the marital relationship was subsisting between the victim and the condemned prisoner at the relevant time. It appears from evidence on record that admittedly the victim of the case came under attack at the courtyard of the condemned prisoner and no one denied during cross-examination of the witnesses that both of them had no marital relationship' as husband and wife at the relevant time rather it has come into evidence that they have a 13 year old son named Masum Billah. Even there is no denial given by the defence that the victim did not receive the injuries within the periphery of condemned prisoner and the defence does not feel to take a plea of alibi that he was not present in his house at the time of commission of crime. And, as such" responsibility goes to the condemned prisoner to explain how his wife sustained severe injuries at the courtyard of his house. There is no explanation as to the cause of injuries on the person of the victim shown by the condemned prisoner neither in course of cross-examination of the prosecution witnesses nor at the time of examination under Section 342 of the CrPC. So he cannot escape his sacred responsibility as per Section 106 of the Evidence Act. Defence simply said in its suggestion that victim was attacked by unknown person but why, it was not suggested by defence. The reason must be there to be explained by the condemned prisoner as husband. The attack as allegedly made by unknown persons in the house of the condemned prisoner is seemed to be a vague term used by the defence in the given suggestion. It does not carry any legal value to consider in favour of the defence.
44. In the absence of any other proof as to the injuries of the wife by her husband i.e. if the husband failed to explain the cause of injuries inflicted on the person of the victim in his periphery, which proves that it was none but the husband to be liable. It finds support from the case of Golam Murtuza vs State, reported in 9 BLC (AD) 229 where their Lordships opined that, "In the absence of any other proof of commission of murder of the wife in other way and in the absence of explanation coming from the side of the husband of the wife for the murder of his wife in his custody and it being proved by evidence that the condemned prisoner demanded dowry some days before murder of his wife and before murder of his wife and the report of post- mortem containing several injuries on the person of Bilkis Banu proving her death and fact of abscondence from the house on the day of occurrence of murder and the petitioner murdered his wife for dowry as has been rightly found by the high court division."
45. To make the husband liable the minimum fact that must be fetched on record either by direct or circumstantial evidence that the husband was in the house at the relevant time and the victim was within his custody. In the present case in hand we find evidence given by the prosecution witnesses particularly PW 1 and 3-5 who found the victim lying at the courtyard of condemned prisoner with severe head injuries that cannot be brushed side in any way. Even PW 1 narrates that he saw the accused persons including the condemned prisoner fleeing away in a shameful manner when he rushed to the crime site. It is also pertinent to mention here that in respect of wife killing case, it is very rear to get the eye witness proving the incident as the wife lives within the custody of the husband. None of the' inmates of the house comes forward to provide evidence against his relative like the husband of the wife. In such a situation, the prosecution has to rely on circumstantial evidence. In the instant case, we find some of the evidence as to the injuries of the victim inflicted within the vicinity of the condemned prisoner. In finds support from the case of the State vs Md Shafiqul Islam, reported in 43 DLR (AD) 92, it was held by our Ape Court that,
"In such a case, there could be no eyewitness of the occurrence, apart from inmates of the house who may refuse to tell the truth. The neighbours may not also come forward to depose. The prosecution is, therefore, necessarily to rely on circumstantial evidence".
46. The learned defence lawyer contends by referring to a decision of AIR 1953 [SC] 76 that the examination of accused under Section 342 of the CrPC was not done properly by the learned Trial Judge. Having gone through the examination of the accused under Section 342 of the CrPC, we find that the learned Trial Judge at the time of examination of the accused brought the incriminating pieces of evidence to the notice of the accused. It also appears from evidence of the prosecution witnesses that the defence has elaborately cross-examined the witnesses.
Both the accused and his engaged lawyer followed the proceeding of the case all the time in the trial court and the accused was asked if he had anything to say. He replied simply in the negative that he was innocent. We do not find any grave error or complaint in the examination under Section 342 of the CrPC so that the condemned prisoner could be prejudiced. Having minor error or irregularity in the conduct of examination under Section 342 of the CrPC, the trial will not be vitiated as it is always curable.
47. It also finds support from the case of Abdur Razzak vs State, reported in 28 DLR (AD) 35, learned judges of the Apex Court opined that,
"It is to be remembered that consensus of judicial opinion is that trial will not be vitiated if there is no question of prejudice due to any flaw in the examination of the accused under Section 342.
The defence challenged the prosecution case in respect of the alleged statement of appellant Abdur Razzaque to PW 1 Humayun Kabir, Officer-in-charge and the recovery of the rifle and the magazine containing 7 live cartridges in pursuance of his alleged statement. It also appears that all the prosecution witnesses were cross-examined at length on behalf of the appellants and thorough cross-examination the whole case of the defence was put before the Court and to the witnesses. The appellants were fully aware of the prosecution case and heard the evidence from start to finish. They had therefore no difficulty to follow the trial proceeding. After close of the prosecution case they were examined under Section 342. It was put to them that they had heard the evidence in details against them and they were asked if they had anything to say. Their reply was simply that they were innocent.
In these circumstances it cannot be said that because of the general question put to the appellants while examined under Section 342 any miscarriage or failure of justice has been caused and, as such, there arises no question of prejudice of the appellants in the trial held against them. It will be expedient to mention here that similar view was taken by the Federal Court as regards the examination of the accused similar manner in the case of Abdul Wahed vs the Crown reported in 7 DLR (FC) 87."
48. In the instant case, it appears from the evidence on record that the condemned prisoner all along was present in the court and he heard the evidence adduced by the prosecution witnesses from start to finish. Placing the all evidence to the notice of the accused, learned judge asked him if he had anything to say. His reply was simply that he was innocent.
49. Further contention of the learned Advocate is that the son of the victim as well as condemned prisoner named Masum Billah did not come forward to give evidence in proving the allegation of this case, although his name has been cited as witness in the charge-sheet and the prosecution with ill-motive restrained to produce him before the trial court so that real fact of the incident could not be leaked out. Replying to this event it can be said that there is no had and fast rule that the prosecution has to examine all the witnesses proposed in the charge sheet. If the allegation is proved by other witnesses, no need to produce more witnesses to prolong the trial process in a wife killing case. However, it is very difficult task on the part of a son during tender age to take side either of the parties and that might have happened in his life to be silent.
50. In this case there are two incidents to be proved by the prosecution under Section 11 (b) of the Nari-O-Shishu Nirjatan Daman Ain, 2000. First incident is demand of dowry and second incident is killing of the victim for not meeting dowry money. Now the question is before us whether the prosecution has been able to prove the allegation of demand of dowry against the condemned prisoner. On perusal of the evidence of all prosecution witnesses it appears that the victim was sent to her father's house to meet the demand of dowry of the condemned prisoner after beating her up. During her stay in her father house, she filed a case vide No. 41 of 2004 with Nari-o-Shishu Nirjatan Daman Tribunal on the allegation of demand of dowry against the condemned prisoner under Section 11 (ga) of the Nari-o-Shishu Nirjatan Daman Ain, 2000. Following an amicable settlement she was taken back to the vicinity of the condemned prisoner before later incident took place.
51. Had the victim met the informant or her relatives to say that the condemned prisoner further demanded money as dowry from her, is totally absent in the evidence of the prosecution witnesses. Although the pw-1 has claimed that his sister was inflicted by the condemned prisoner for dowry but as to when and where he was told by his sister victim regarding further demand of dowry is not present in the evidence. Since, the source of information as to the demand of dowry is absent and subsequent hearsay evidence given by other PWs are not admissible in law. With the said evaluation it can be firmly envisaged that the prosecution has not been able to prove the allegation of demand of dowry beyond reasonable doubt.
52. More so, it has emerged from the evidence on record and the impugned judgment that in the earlier case the Tribunal by its judgment dated 26-1-2010 found the condemned prisoner guilty under Section 11 (ga) of the said Ain and sentenced him to suffer rigorous imprisonment for a period of 3[three] years with a fine of Taka 5,000 before the impugned judgment was delivered. Question may arise at this stage whether the demand 01 dowry can be created more than once. Answer is obviously positive. But in this case we find that victim brought an allegation earlier against the condemned prisoner for his illegal demand of dowry under torture and humiliation. Such allegation brought by the victim made the condemned prisoner ferocious and infuriated. Ultimately it turned into an attack on the victim by the condemned prisoner after being enraged. So the second incident took place not for dowry. If it is considered at this moment that the victim subsequently died after being tortured by the condemned prisoner for not meeting the dowry then it would be double standard practice in the criminal dispensation of justice because for demanding dowry, the condemned prisoner has already been punished on trial by this time. Under article ' 35(2) of the Supreme Law of the Land clearly prohibits that no person shall be prosecuted and punished for the same offence more than once and according to Section 403 of the CrPC it would also be a principle of double jeopardy if a person is convicted or acquitted for the same offence more than once.
53. It appears from record that the condemned prisoner was apprehended on 28-9-2004 in connection with the instant case. From that day till delivery of the impugned judgment he was remained in normal cell of the jail.
Thereafter, he was shifted to condemned cell since 20-5-2010 as of today. And the victim of the case died around 4 (four) months after the incident. In that view of the facts as stated above and considering the entire evidence and circumstances of the case we are constrained to hold that justice will be met if the condemned prisoner is sentenced to imprisonment for life instead of awarding him to sentence to death.
54. Since the cause of death for dowry against the condemned prisoner has not been proved under Section 11 (ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 the conviction from the offence of Section 11(ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 passed by the learned Judge of the Nari-o- Shishu Nirjatan Daman Tribunal, Satkhira is altered to one of Section 302 of the Penal Code and he is sentenced to imprisonment for life with a fine of Taka 5,000 (five thousand), in default, to suffer rigorous imprisonment for three months more.
55. In the result, the Death Reference is hereby rejected. The Criminal Appeal No. 3404 of 2010 along with Jail Appeal 158 of 2010 is also dismissed with the aforesaid modification in the sentence.
26. The condemned prisoner be shifted from the condemned cell to normal cell meant for similar convicts at once.
Send down the lower courts record along with a copy of this judgment expeditiously.