ফৌজদারী : হত্যা মামলা
Heading for Judgment
District -: Sirajganj
Present-: M
Ali Ahmed,
Sessions Judge (Senior District and Sessions Judge)
Sirajganj.
Sessions Case No. 373 of
2014
Ref: arising out of
Ullapara PS case no. 09 dated 08/08/2011 under section 302 of the Penal Code,
1860 corresponding to GR Case no. 165 of 2011(Ulla)
Charge- Under sections:
302 of The Penal Code, 1860
Date of Judgment:
State
Versus
1. Md. Chand Ali alias Chan
Mian .................................The accused.
1. Mr. Abdur Rahman,
P.P. ….………. Advocate for the Prosecution.
2. Adv. Abdul KaderJewel
.……...................................for
the defence.
1. The prosecution case, in short, is that the informant, Hanef
Ali Mollah, lodged an FIR with Ullapara PS, Sirajganj at 21:00 hours on
08/08/2011 AD, stating facts, inter alia, that about nine years ago his
daughter, Tahmina was married to Md. Chand Ali and after marriage his daughter
lived in her husband's house at the Ashrayan Project adjacent to his house at
the same place and his daughter gave birth to two children during her conjugal
life. The wives of Md. Shahidul and Md. Nasir, namely Shyamali and Josna, used
to spread rumors about an illicit relationship between his daughter, Tahmina
and these two men. As a result of this on the night of July 31, 2011, around 9
pm, all the accused persons in a pre-planned conspiracy, assaulted his
daughter, Tahmina in Chand Ali's house. The FIR continues to allege that at one
point of attack with the help of Shahidul and Nasir, Chand Ali armed with a
sharp knife inflicted severe injuries to Tahmina's chest, abdomen, back and
hands with the intention of killing her. Subsequently, the victim Tahmina died
while undergoing treatment in Enam Medical College Hospital at Savar, Dhaka.
Hence the case is for.
2. The investigation of the case was assigned to the Inspector of
Police Md. Omar Faruk of Ullapara Thana who visited the place of occurrence and
prepared a sketch map of the place of occurrence with an index and recorded
statement of the witnesses under section 161 of the Code of Criminal Procedure,
1898 and having found prima facie case recommended a prosecution by filing a
police report numbered as 11 dated 24/01/2012 of Ullapara Thana against the
accused, Md. Chand Ali alias Chad Mia under section 302 of The Penal Code,
1860.
3. On receipt of the charge sheet the learned Magistrate took
cognizance of the offense under section 302 of The Penal Code, 1860 by
exonerating the accused persons namely Shahidul and Nasir from the allegation
of murder and sent the same for trial to the Sessions Judge. The
Sessions Judge framed charges under section 302 of the Penal Code, 1860 against
the accused, Md. Chand Ali alias Chad Mia which was read over and explained to
him who pleaded not guilty and claimed to be tried.
4. The prosecution, to prove the accusation, has examined 14 out
of 18 witnesses mentioned in the charge-sheet and produced some documents to
the court which are admitted in evidence by marking 1-4 and no material
evidence tendered in the trial.
5. The accused was not examined under section 342 of the Code of
Criminal Procedure, 1898 as he remained absent throughout the
trial.
6. The accused is a fugitive and he was proclaimed under section
87 of the the Code of Criminal Procedure, 1898 and the court took initiative to
attach his movable and immovable property under section 88 of the Code
mentioned above but failed for the reasons shown in the police report but yet
that the accused remained absconding and did not appear at the trial or the
police could not arrest the accused. On this background the court has published
an advertisement in a national daily under section 339B of the Code mentioned
above directing him to appear before the court but if he fails and does not
face trial then the court would try him in absentia. But all those
processes failed and the court started in absentia trial by appointing an
advocate for the accused at the cost of the state. Though an advocate has been appointed
on behalf of this fugitive by the state but without any consultation with the
accused, the learned state defense counsel cross-examined the prosecution
witnesses and fails to elucidate any contradictions and discrepancies in
the testimonies of the prosecution witness.
7. The accused is a fugitive and for this he could not be
examinedunder section 342 of the Code of Criminal Procedure,
1898.
8. The learned public prosecutor argued over the case before the
court by submitting that the accused, Chand Ali killed his wife by causing
several wounds to the different parts of the body by striking with sharp
cutting knife and the victim, Tahmina died there from and the prosecution has
been able to prove the charge against the accused by producing evidence to the
court. On the country, the learned state defence counsel summitted before
the court by submitting that there is no ocular witness who saw the accused
striking the victim and the injuries found on the dead body were not sufficient
to cause death of the victim rather the deceased victim died from
negligence in treatment and the learned state defense counsel prayed for
acquittal of the fugitive accused.
Points
for determination
9. a) Whether the accused, Chand Ali had killed Tahmina and
thereby held liable for the offense of murder punishable under section 302 of
The Penal Code 1860?
b) Whether the prosecution has been able to prove the charge
against the accused beyond all reasonable doubt?
Findings and Decisions
10. The Charge against the accused person is
killing his wife by causing various types of wounds on the different parts of
the body. To prove the charge the prosecution produced 14 witnesses though 18
named in the charge-sheet. Of the witnesses, the informant, Hanef Ali Mollah
deposed as P.W-1 as to the date, time and place of occurrence of the
killing of his daughter, Tahmina and the person by whom and the manner in which
and his testimonies are corroborating to the facts averred in the FIR. In
testimony, he deposed that on the night of 31-07-11, Tahmina was at home with
her husband and she was assaulted by her husband and she died in a hospital
while under treatment. This witness also deposed that the accused, Chand lives
in the same house as he (under the same building of the ashrayanprokalpa). As
to the manner of causing injury by the accused, Chand this witness testified
that hearing his daughter's screams, he went to see and found the accused
stabbing his daughter with a sharp knife. Upon seeing him, the accused fled and
he took Tahmina to a local hospital. From that hospital she was referred to
Dhaka for treatment and she died in a hospital in Dhaka. As to the fact who
killed her daughter on this, this witness testified that in the light of the
lamp he saw the accused, Chand Ali. Regarding the seizing of the materials as
proof of commission of the offence this witness deposed by saying that the
police came and seized the blood-stained clothes and the police prepared a
inquest report of the dead body though no such materials tendered in evidence.
As to the incident of killing, the state defense counsel cross-examined this
witness and in which he said that Chand was his son-in-law and after marriage,
the accused lived in his house with his daughter. This witness denied the
suggestion that the accused, Chand, was not at the home on the day of incident
and did not kill his daughter. As to the killing of Tahmina, one Merina
Khatunneighbour of the deceased victim living at four houses away to the
west of Tahmina's house deposed as P.W. 2 by supporting the
charge that on 31.07.11 AD she was at home and the FIR maker and the
victim's house is adjacent to her house. As to who killed Tahmina, this witness
testified that hearing a scream, she went to see and found Chand Mia, Tahmina's
husband, stabbing her with a knife. Regarding the location of the injuries she
deposed that the accused inflicted wounds on both breasts, near the navel and
on the back and she, along with Belu and Nasir's mother, took the victim to a hospital
but the hospital said that treatment was not possible and she continued to
depose that from there, the victim was taken to Bogra Hospital and then to a
Hospital in Dhaka and she died there. The learned state defence counsel
cross-examined this witness in which she said that she called Shahidul and
Nasir and they are also neighbours of the FIR maker and Shahidul and Nasir did
not have any illicit relationship with Tahmina. As to the marriage between the
accused and the deceased victim of this case, she testified that the accused
married Tahmina 9 or 10 years ago and Chand Mia used to live in a
government-provided house (ashrayanprakalpa) and Chand's in-laws' house
(victim’s father’s house) was 2-3 rooms away from that one. Chand Mia and
Tahmina had a good relationship. Chand Mia and Tahmina have a son and a
daughter. As to the time of the incident this witness deposed that the incident
happened at night. Whether she saw the accused stabbing with knife on this she
admitted in cross-examination that she did not see Chand Mia to hurt Tahmina
but claimed that the accused, Chand Mia was at home on the night of the
incident denying the claim of the state defense lawyer that the accused, Chand
was not at home on the night of the incident though this lawyer had no occasion
to meet with Chand, the fugitive accused of the case. For this, the court
thinks this defense has got no leg to stand. In cross-examination this witness
also denied giving false testimony. The learned defence counsel could not budge
her on any points of date, time when the Tahmina got killed and the place where
the incident of killing took place and the person who killed Tahmina and what
were the injuries on the dead body of Tahmina. As to the killing of Tahmina,
Mother of the deceased victim, ChharaKhatun deposed as P.W 3
corroborating to the testimony to the prosecution witnesses discussed above and
the facts averred in the FIR in respect of the person by whom the deceased
victim was killed and the place where Chand killed her daughter by inflicting
wounds by sharp knife. Regarding the death of Tahmina she testified that Chand
Ali is Tahmina's husband and on the night of July 31, 2011, at 8 pm she saw
Chand Ali stabbing Tahmina in the chest, near the navel, with a knife and
Tahmina was taken to a hospital where she died. The learned state defence
counsel cross examined this witness in length as to date, time and place of
occurrence and the person who killed her daughter and the manner how but could
not contradict her on any points of death of Tahmina before the court. In
cross-examination she claimed that Chand Mia was their domestic son-in-law and
Nasir and Shahidul's houses are adjacent to Chand Mia's house. As to the
defence’s claim that the accused was not at home at the timeof incident this
witness denied this in cross -examination rather claimed clearly that the
accused murdered her daughter, TahminaKhatun at his house.
As to the fact of
killing Tahmina, the prosecution witness, ShajedaKhatun as PW-4 testified to
the court corroborating evidence of other witnesses and the FIR by deposing
that Chand Ali's house and her house is in a cluster of houses
(ashrayanprakalpa) and on the night of July 31, 2011, she heard a scream and
went out and heard two more screams saying 'He's killing me'. She continued to
depose by saying that when she went out, she saw Tahmina being stabbed but
didn't see who stabbed her. In respect of the person who killed Tahmin to this
fact she deposed that she could learn later that Tahmina's husband, Chand Ali,
had inflicted the wounds and regarding the number of injuries and its
location she deposed that she saw the injuries and blood on Tahmina's body
and Tahmina was stabbed in the chest, near the navel and one in the back and
Tahmina died in a hospital. In cross-examination she could not recollect the
time of the incident but admitted that Shahidul's house is to the west of Chand
Ali's house and Nasir's house is to the East. Regarding the relationship
between the accused and the deceased victim this witness claimed in cross-examination
that she had heard that Chand Ali and Tahmina often argued and they would have
quarreled occasionally. As to the fact of Chand’s not staying at home on the
night of the incident this witness has denied the suggestion put to her by
saying that it’s not true that Chan Ali wasn't home on the night of the
incident or that he (the accused) didn't kill Tahmina and it's not true that
she’s giving false testimony. Another villager of the FIR maker, Vhelu
testified to the case as P.W 5 by saying that he knows Chand Ali
and Tahmina who are his neighbor and on July 31, 2011, after 8 pm, he was at
home and hearing a commotion, he went out of the house and saw Chand Ali
running away and Tahmina was lying in front of the house. As to the fact of
hospitalization and description of the injuries and location of those in the
body this witness testified that he took Tahmina to a hospital and Tahmina had
injuries to her chest, abdomen, and chin and she died in the hospital. The
learned defense counsel cross-examined this witness but could not contradict
him on any points of date, time and place where Chand Ali stabbed his wife and
what was the nature of injuries and the location of such injuries on the body.
All of those facts specially regarding conjugal life and issues this witness
testified in cross-examination by saying that his house is 5-6 houses away from
Tahmina's. Tahmina's son is about 14 years old, and her daughter is about 7-8
years old. Sahidul and Nasir were the neighbors of Tahmina and their house is
next to Tahmina though this witness denied the suggestion that he did not see
Chand Mia running away or that Chan Mia was not at home on that night and that
he gave false testimony. Though this witness admitted that he did not see Chand
Mia injure Tahmina. Another witnessManiktestified to the case as P.W
6 by saying that he was in Dhaka on the night of incident i.e. on July
31, 2011 and being in Dhaka he heard that Tahmin was killed by her husband and
he went to the medical college in Dhaka when the post-mortem of the body was
being conducted. As to bringing back the dead body of Tahmina to the village,
this witness testified that as a person from the area, he along with others,
brought Tahmina's body back. In cross-examination this witness admitted that he
was at the factory on the night of the incident and did not see the incident. Abdul
Hamid, husband of the deceased victim’s sister who testified to the case as
P.W 7 by describing the number of injuries and its location on
the dead body that he saw the victim's body and an injury on the right side of
the victim's cheek and the injuries on her hand, including the elbow and below
the elbow. This witness also testified that he saw a deep cut on her left arm
below the elbow though the description of the injuries and its location were
not totally matched with the inquest repot and the post mortem report. In
cross-examination this witness admitted that he was not present at the scene of
the incident and did not witness the victim being assaulted and the victim died
5-7 days after the assault during treatment whom he took to a hospital. This
witness described that 7 days before the death of Tahmina the victim was
conscious while she was in the hospital and could speak but authority did not
take her statement while she was alive and he was unaware of the fact that the
deceased victim had an illicit relationship. One of the sisters of the deceased
victim, MonoaraKhatun testified to the case as P.W 8 by
describing the injuries on the body of Tahmina that there were injuries on both
her breasts, lower abdomen, back of her head and cuts on her hands from sharp
objects. As to the person who caused these injuries and the death of Tahmina
this witness categorically claimed that her brother-in-law (Chand Ali) had
beaten her sister who were taken to Bengal Hospital by Marina and Belu around 9
PM on July 31, 2011 and from there to Bogura hospital where the doctors advised
them to take her to Dhaka and her husband took wounded Tahmina to Dhaka. As to
the death of Tahmina this witness deposed that she died eight days later while
undergoing treatment in a hospital in Dhaka. The learned defence counsel
cross examined her on length but could not contradict her on any points of
death of Tahmina by the hand of Chand Ali who alleged to have caused
bleeding injuries to different parts of the body. In-cross examination, this
witness claimed that when they were taking his sister to Bogura in a car, she
(Tahmina) told her that her husband (Chand) had done this to her and Tahmina
asked her to take care of her son and daughter. As to the place where Tahmina,
the deceased victim died on this fact this witness testified that she died in a
hospital after 8 days and denied the suggestion put to her that she died of
illness though this witness admitted that she didn't personally see any
incident of beating by Chand Ali. The person who killed Tahmina where and how
as to those facts one of the neighbours, Rohimatestified to the case as P.W
9 by saying that Tahmina died 8 years ago around 8-9 PM and she heard
Tahmina’s screaming and found she was lying on the road in front of her house
in the dark and she tried to search her face and many people came there where
on seeing blood she fainted and claimed that she heard that the husband of
Tahmina had injured her. As to the condition of marital life between the
deceased victim and her husband this witness testified that Tahmina and her
husband had been in a bad relationship for a long time. The learned defence
counsel cross examined her as to the date, time and place of occurrence and the
person who killed the deceased victim and on all those facts, in-cross
examination, she described the manner of causing bleeding injuries to Tahmina
by beating and stabbing by saying that it was dark at that time and there was
no electricity and she didn't see Chand actually hurting her (Tahmina) but he
heard about who caused injuries to Tahmina and to see this horrible condition
of Tahmina she fainted when she saw a pool of blood nearby the wounded
body lying on the ground. Md. Abdul Hamid testified to the case as P.W
10 concealing the facts of stabbing and killing of Tahmina by Chand and
claimed that he knew nothing about the killing of Tahmina by saying that people
from the village cluster had killed Tahmina and did not know who killed
her. MasudSarder alias Al Masudtestified to the case as P.W
11 who also keep concealed the facts of killing of Tahmina by saying
that he knew nothing about the incident and claimed that it is not true that on
the night of July 31, 2011, at 9 PM, after sensing Tahmina's illicit
relationship with Shahidul, Chand Ali attacked his wife Tahmina with a sharp
knife. The investigating officer, Omar Faruktestified to the case as P.W
12 by saying that On 08-08-2011, while serving as an SI at Ullapara Police
Station, he was assigned to the investigation who visited the crime scene and
prepared a draft sketch map of the place of occurrence and interrogated the FIR
maker and recorded the statements of the persons acquaintance with the incident
under Section 161 of the Code of Criminal Procedure, 1898. This witness
continue to depose that he had Shahidul Islam and Nasim and taken them on
police remand but failed to bring out any evidence from them in support of
commission of the killing of Tahmina by them and for that they were not sent up
in the police report but after reviewing the victim's post-mortem report and
the inquest report and based on the overall investigation and evidence as the
accusation against the accused, Md. Chand Ali was initially proven for that he
submitted a charge sheet being No. 11 dated 14-01-12 Ulla para Thana. The
learned state defense counsel cross-examined this witness in which he testified
that the accused, Chand Ali committed the murder of Tahmina and denied the fact
that Chand Ali is an innocent person.
11. About the inquest report Md. Anwar Hossen, Sub-Inspector,
who prepared the inquest of the dead body of Tahminatestified to the case
as P.W 14 that on the night of August 8, 2011, he was on duty as
an SI (Sub-Inspector) at Savar Model Police Station, Dhaka. The following day,
on August 9, 2011, at 7:30 AM, he prepared an inquest report at the Enam
Medical College Hospital under Savar Police Station. The deceased, Tahmina
Begum (30), wife of Chand Mia and daughter of HanefMolla, hailing from
Enayetpur Shelter, UllaparaUpazila, Sirajganj district, was found lying on a
medical trolley in the ground floor of the Eastern mortuary. The deceased was
identified by her mother, Chhara Begum. As to the number of injuries and its
location, shape, size, alignment and nature this witness also deposed he
observed the following injuries on the dead body-
- A
small cut mark on the right side of the face,
- A swollen, bruised wound below
the right eye.
- A bruised and swollen wound on
the right elbow and the area below it.
- A approximately 2-inch long
cut, with one stitch, on the lower part of the left arm, midway between
the wrist and elbow.
- An approximately 3-inch long
cut, with 5 stitches, on the lower part of the left breast.
- A deep, puncture wound,
approximately 1-inch long, on the left side of the rib cage, below the
same breast.
- An approximately 3-inch long
cut, with 4 stitches, on the abdomen, to the left of the navel
(umbilicus).
- An approximately 3-inch long
cut, with 5 stitches, on the lower right side of the back.
- A small cut on the little toe of the right foot.
A swollen, bruised wound on the knee of the left
leg. This witness continued to depose on inquest report by saying that
furthermore, he observed slight, swollen, bruised marks on various parts of the
body. The deceased's body was sent to Dhaka Medical College Hospital for
autopsy through a constable/1182, Golam Rabbani. The witness identified
the inquest report by saying in the court that this is the inquest report
prepared by him and as the preparer, he has signed it on page. The learned
defence council cross examined the maker of the inquest but could not
contradict him on any points of preparation of inquest report in which
this witness testified that Enam Medical College Hospital is located
within the Savar Model Police Station area and whenever a dead body is found
within the jurisdiction of Savar Model Police Station, the police officers of
Savar Police Station prepares an inquest report and while he was preparing the
inquest report for the deceased her mother and niece were present there. As to
the initial causes of death, this police officer heard from relatives of the
deceased victim that the deceased's husband had beaten and injured her. This
witness denied that the deceased's mother and niece did not tell him about the
husband’s beating and injuring the deceased during the inquest and he testified
false testimony in support of the inquest report that he prepared."
The defence counsel
claimed that due to negligence in treatment the victim died but it appeared
from the inquest report that the injuries alleged to have been caused by the
Chand Ali being treated and stitched up and the treatment was continued
for 8 days from the date of causing injury. From this inquest report we
can say that there was no negligence in treatment.
12. As to the post mortem findings of the dead
body the autopsy performing doctor, Shohel Mahmud testified to the case
as P.W 13 by saying that on 09 August, 2011 being one of the
Members of two member Medical board at 14 hours performed an autopsy on the
dead body of Tahmina and found that 1)surgical stitched wound on the right
chest about 3 inch right to midline (incised); 2)incised wound which was
surgically stitched on the left side of the abdomen 3 inch in length (4
stitched); 3)surgically stitched incised wound on the left mid forearm;
4)incised wound surgically stitched (5 stitched) on back of lower chest 3 inch
right to midline; 5)stab wound on lateral side of left breast (2 inchX ½ inchX into
cavity) at 4th intercostal cartilage and by opening the thoracic cavity found
two internal injuries such as 6) left lung perforated and 7) blood clot. On
these injuries this doctor opines in his report as to the cause of death that
the death was due to hemorrhage and shock resulting from above mentioned
injuries which was antemortem and homicidal in nature.
In cross examination this autopsy performing
doctor admitted that he mentioned 5 external injuries on the dead body of the
deceased victim, Tahmina and two internal injuries and claimed that the
cumulative effect of these bleeding wounds causes shock and hemorrhage
that resulted in death of the deceased victim though he did not mention
the age of injuries in the autopsy report because of no column therein.
The inquest report has been admitted in evidence by marking exhibit No. 1/3. If
we peruse the inquest report the location, number, nature, shape, size and
alignment of the injuries mentioned in it corresponds not only with the autopsy
report but also with the testimonies of the ocular witness namely PW-1, 2, 3
and 5 though in reply to the question of the defense counsel the autopsy
performing doctor said that he could see a slight cut injury to the right side
of the mouth and simple hemorrhage to the right side below of the eye though he
denied the facts that the autopsy report is flawed.
If we compare the
inquest report with the autopsy report on the record along with the testimony
of the autopsy performing doctor then the same number of injuries and its
location on the dead body and the shape, size and alignment of injuries are
matched with each other and even with the witnesses who saw the dead body.
13. Among the witnesses PW-1,Father of the
deceased victim, PW-2 neighbour of the deceased victim, PW-3, mother
of the victim and PW-5 the villager and neighbours are ocular witness to the
incident and as per provision of section 60 of the Evidence Act 1872 their
testimony as to the incident of death allegedly committed by the accused,
Chand Ali are admissible in evidence as their evidence are direct evidence. In
this regard, the section 60 of the Act mentioned above provides that oral
evidence must, in all cases whatever, be direct; that is to say-
if it (oral evidence) refers to a fact which could
be seen, it must be the evidence of a witness who says he saw it;
if it (oral evidence) refers to a fact which
could be heard, it must be the evidence of a witness who says he heard it;
if it (oral evidence) refers to a fact which
could be perceived by any other sense or in any other manner, it must be the
evidence of a witness who says he perceived it by that sense or in that manner;
if it (oral evidence and opinion of doctor in autopsy is an oral evidence)
refers to an opinion or to the grounds on which that opinion is held, it must
be the evidence of the person who holds that opinion on those grounds.
The court relies upon the testimonies of these
prosecution witnesses namely pw-1, 2, 3 and 5 as to the fact who actually
killed Tahmina, when and where and how i.e. the manner of causing fatal
injuries to the different parts of the deceased victim which resulted in the
death of Tahmina.
The testimonies of other witnesses such as pw-4,
6, 7, 8,9 are also important because all of took part in the treatment of the
wounded victim Tahmina to take her to hospital and bringing back the dead
body of Tahmina to the village and though they did not see the accused, Chand
Ali to stab the deceased victim directly but they accompanied with the
wounded Tahmina from first of taking her to hospital and treatment to last
incident of burying her at the graveyard. So their testimony carries a lot of
value in deciding who killed Tahmina and how. Among the witnesses namely PW-10
and 11 though kept concealed the incident of stabbing and killing of Tahmina
but never claimed that Tahmina had not been killed by the hurt of the accused,
Chand Ali or died from disease or any other means. From their silence as to who
killed Tahmina and how she died it can be concluded that they avoided telling
the truth as they did not deny the death of Tahmina and the death had been
committed by others or by any other way. So, from the circumstances it can be
said that that evidence was also positive in proving the death of Tahmina that
was done by the accused, Chand Ali. The PW-12 the investigating officer
testified in support of his accusation against the accused, Chand Ali and the
police officer who prepared the inquest testified to this case as
PW-14 and the doctor who performed the autopsy testified to this case as
PW-13. From the perusal of their testimonies it is transpired that the defence
counsel could not contradict neither the formal witnesses nor the other direct
witness on any points of date, time and place of occurrence and the causes of death
and as to the person by whom the deceased victim got killed. Soon after the
incident the accused, Chand Ali fled from his house and this feeling from the
locality also indicates his involvement with the killing of Tahmina and as per
provision of section 8 of the Evidence Act, 1872 this conduct of the accused is
relevant fact in deciding the allegations against him whether the accused
killed his wife, Tahmina. In this regard, the section 8 of the Act mentioned
above provides that the conduct of any person an offence against whom is the
subject of any proceeding, is relevant, if such conduct influences or is
influenced by any fact, in issue or relevant fact, and whether it was previous
subsequent thereto. The fact of fleeing of Chand soon after alleged incident
was influenced by the stabbing to Tahmina otherwise all the people of the
Ashrayanprokalpa remained in their house but why Chand fled from the locality
which gives ground to believe the facts that he fled from his house after
stabbing his wife.
The prosecution has
examined 14 witnesses out of 18 witnesses. Though there is a presumption
given under section 114(g) of The Evidence Act, 1872 that evidence which
could be and is not produced would, if produced, be unfavourable to the person
who withholds it but considering the socio economic condition of our
country due to fear of reprisal and personal safety and saving from vendetta of
the accused person and other reasons the witnesses are afraid of turning to the
court and telling the truth and for these reasons, the presumption enunciated
one and half century ago in the section becomes obsolete. Besides, the
provision of section 134 of the Act mentioned above gives the authority to the
court to decide any disputed matter defending upon the evidence available on
the record. In this regard, we may refer to the provision of section 134
which provides that no particular number of witnesses shall in any case be
required for the proof of any fact. So the court thinks the charge brought
against the accused may be proved on the basis of the evidence on record and it
would be sufficient for the court to base its decision and thinks that there is
no need of producing all those 18 witnesses to this court.
Though the evidence of the expert is admissible
under section 45 of the Evidence Act, 1872 but that evidence must follow the
provision of section 60 of the Evidence Act, 1872 that means to be admissible
the autopsy report in evidence the doctor must stated the grounds of his
opinion on the report before the court by taking oath under section 5 of the
Oaths Act, 1873 standing in the dock by uttering the language couched by the
High Court Division under rule 41 of the Civil Rules and Orders (CR&O)
being empowered by section 7 of the Act mentioned above and only then it would
be admissible and the court may base its decision on the disputed fact.
In this respect, we may refer the relevant provision of the law i.e. the
relevant portion of section 60 of the Evidence Act, 1872 which says that if it
(testimony/oral evidence) refers to an opinion or to the grounds on which that
opinion is held, it must be the evidence of the person (autopsy performing
doctor) who holds that opinion (as to causes of death of Tahmina) on those
grounds. In the instant case the doctor testified to the case as PW-13
and the defense counsel cross examined this doctor and since the defense
counsel could not contradict him as to the injuries found on the dead body were
not sufficient to cause the death of the victim and the defense counsel could
not show anything from the cross-examination of the doctor that there was no
causal connection between the death of Tahmina and the injuries inflicted by
the accused so, the medical evidence is admissible on the facts that the wounds
on the body of the victim caused her death.
From the discussion left
above this court concludes that Tahmina was killed by the accused, Chand Ali
alias Chand Mia by stab wounds caused with a knife. The evidence led by the
prosecution clearly proved that the act of the accused person falls to the
thirdly clause of the section 300 of the Penal Code, 1860 as the accused killed
his wife, Tahmina with the intention of causing bodily injury to her and the
bodily injury (stabbing wounds, puncture wounds, incised wounds on the chest
and abdomen and other parts of the body) intended to be inflicted were
sufficient in the ordinary course of nature to cause death of Tahmina. For
this, the act of Chand Ali is to be considered as culpable homicide amounting
to murder under third clause to section 300 of the Code mentioned above. So, it
can safely be arrived from the discussion of evidence and materials on the
record that the accused person intentionally and voluntarily caused the fatal
injuries on the chest and abdomen which resulted in the death of the deceased
victim, Tahmina on the alleged date, time and place. The court decides that the
charge of culpable homicide amounting to murder is proved against the Chand Ali
alias Chand Mia, the accused of the instant case. So, the accused person is
convicted of the offence of culpable homicide amounting to murder defined under
the third clause to section 300 of the Penal Code, 1860.
14. No such the defence has not been appeared from the trend of
the cross examination as the accused person remained absent throughout the
trial and the state defense counsel could not get a single chance to have
consulted with the accused person and though the state defense counsel took a
defence that the accused person had not been at the home on the night of the
incident and the victim died from disease. But those have not been established
by contradiction of evidence of the prosecution witnesses nor by any other
evidence from the defense. Where the defense counsel could not have a chance to
meet the accused throughout the trial then where did he get that the accused
had not been staying at his home on the night of the incident? For this, the
court thinks this defense is baseless. Not only that the other defense that
this deceased victim had died from disease but he could not mention the name of
any disease from which the victim died and produced a single paper showing what
was that illness with which the deceased victim was sick so this defense also
has got no leg to stand.
15. Since the accused person has committed the offence of killing
the deceased victim, Tahmina by stabbing with knife, which is supported by the
post mortem report done in Sirajganj that is why the accused should have been
punished with death under section 302 of the Penal Code, 1860 as it was a cold
blooded murder having no provocation on the part of the deceased victim to the
accused and as the incident of killing has been proved as clear case of murder
from the inquest and autopsy reports. The accused has, mindlessly, killed a
mother of two tender aged children and if this accused would not be punished
with capital punishment then justice would not be met. For the reasons
above the accused person is convicted of the offence of causing
culpable homicide amounting to murder defined under the third clause to section
300 of The Panel Code, 1860 and thereby sentenced to the death
penalty under section 302 of The Penal Code, 1860 and with
fine.
Hence, it is
Ordered
That the accused, Md. Chand Ali @ Chan
Mian, S/O-Late Kalu Sardar and resident of Enayetpur Ashrayan Prokalpa,
P/S-Ullapara and District-Sirajganj is found guilty of the charge of the
offence of culpable homicide amounting to murder defined under third clause of
section 300 of the Penal Code,1860 and thereby sentenced to death penalty under
section 302 of the same Code and fine of taka 10,000/- (ten thousand) and in
default of payment of fine to suffer simple imprisonment for a term of one (01)
month.
The convict be hanged by
neck till death.
Let a conviction warrant
be issued against the convict and the punishment would be effective from the
date of arrest or surrender whichever is earlier.
The sureties to the bond
are hereby discharged.
Let a copy of the order of conviction and
sentence be sent to the Chief Judicial Magistrate, Sirajganj and the District
Magistrate, Sirajganj for information and taking necessary action.
Dictated by me
Sessions Judge, Sirajganj |
|
(M Ali Ahmed) Sessions Judge, Sirajganj |
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