The New Nation - Internet Edition

Appellate Division

(Criminal)

Md Ruhul Amin J }

MM Ruhul Amin J

Md Tafazzul Islam J }

Rakhal Chandra Naha

……………Petitioner

vs

State …………,

…………………Respondent""

Judgment February 22nd, 2007

Code of Criminal Procedure (V of 1898) Section 509A

Evidence Act (1 of 1872)

Section 45

In this case the post-mortem examination report of the dead body of the deceased was used in evidence as per provisions of section 509A of the Code of Criminal Procedure. It appears that the requirements of section 509A of the Code of Criminal Procedure were not complied with and, as such, the use of the same under section 509A of the Code of Criminal Procedure was not proper by the trial Court.

The trial Court and the High Court Division relied on the evidence of two eye-witnesses namely PWs 2 and 4 who are most natural and probable witnesses of the case being inmates of the place of occurrence house and also considering the fact that the occurrence took place in the early morning at 7-00 AM on the day of occurrence at the courtyard of their dwelling house and at that time no outsider was supposed to remain present at the place of occurrence. Therefore, the trial Court and the High Court Division rightly placed reliance on the evidence of those two eyewitnesses although they are son and wife respectively of the deceased.

In the absence of post-mortem examination report, the ocular evidence of PWs 2 and 4 regarding the injuries caused on the person of the deceased by the condemned prisoner can be safely relied upon. Medical evidence is only corroborative in nature and the ocular evidence of the eye-witnesses which substantially corroborates the major injuries on the person of the deceased must be accepted. Therefore, in the absence of post-mortem examination report: on the basis of ocular evidence of PWs 2 and 4, the conviction of the' condemned prisoner-petitioner can be sustained. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.

tt (11,12,13 & 15)

Abdul Quddus vs State 43 DLR (AD) 243 ref.

Sarwar Ahmed, Advocate-For the Petitioner.

Md Abdur Rouf, Deputy Attorney-General-For the State.

Judgment

MM Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 9-11-2004 passed by a Division Bench of the High Court Division it Death Reference No.7 of 2003 with Jail Appeal No. 61 of 2003 accepting the death reference and dismissing the jail appeal preferred by the condemned prisoner Rakhal Chandra Naha.

2. The prosecution case, in brief, is that condemned-prisoner Rakhal Chandra Naha and Nepal Chandra Naha (absconding), both sons of Akkhay Chandra Naha had enmity with the 'deceased over landed properties. The deceased Dinesh Chandra Dutta married the mother of the informant and used to live in the house of his father-in-law as domesticated son-in-law and the condemned prisoners being cosharers of the father-in-law of the deceased developed enmity over landed properties over which there were several salish, but the matter was not settled. On, 26-2-1999 at 7-00 AM when the deceased was going to wash his face and hinds in a nearby pond, the condemned prioners Rakhat Chandra Naha and Nepal Chandra Naha caught hold of him (deceased) on his way and took him towards the dwelling hut' of Rakhal and Nepal caught hold of the deceased and Rakhal dealt a dao blow on the head of the deceased in order to kill him and as a result, the latter fell down on the ground. Sumita Bala, Dutta, wife of the deceased and Shanjit Chandra Dutta, the youngest son of the deceased rushed there on hearing alarm and they were also beaten by the condemned prisoners. The further case is that neighbours Jagadish Chandra Das, Shudhangshu Bhushan Das, Swapan Chandra Nandi, Aujit Chandra Dhar, Khitish Chandra Das and others came to the place of occurrence on hearing hue and cry raised by Sumita and Shanjit and they saw and heard narration of the occurrence. The deceased was then taken to local Debidwar Hospital wherefrom he was taken to Comilla Medical College Hospital for better treatment. The deceased, however, died at 1120 hours at Comilla Medical College Hospital due to injuries sustained by him during the occurrence.

3. The police on completion of investigation submitted charge sheet under sections 302/34 of the Penal Code against the condemned prisoners.

4. The trial Court framed charge against condemned prisoners under sections 302/34 of the Penal Code The charge was read over to the condemned prisoners who pleaded not guilty and claimed to be tried.

5. The defence plea is one of denial. The further defence plea is that a dacoity was committed in the bedroom of the deceased on the previous night and the deceased sustained injuries at the hands of the dacoits but the condemned prisoners have been falsely implicated in this case out of enmity and grudge.

6. The prosecution in this case has examined as many as 10 witnesses and the defence did not examine any DW.

7. The trial Court on consideration of the materials on record found the condemned prisoners guilty under sections 302/34 of the Penal Code and sentenced each of them to death.

8. We have heard Mr Sarwar Ahmed, the learned Advocate for the petitioner and Mr Md Abdul' Rouf, the learned Deputy AttorneyGeneral for the State and perused the judgment of the High Court Division and other connected papers.

9. PW 1, informant of the case, is not an eye-witness to the occurrence. He heard narration of the occurrence from others, PW 2, Shanjit Chandra Dutta, son of the deceased, is an eye-witness to the occurrence. He stated that on 26-2-1999 at about 7-00 AM the deceased woke up from sleep and was going to the nearby pond to wash his hands and mouth. At that time he heard cries of his father and he and his mother (PW 4) Sumita Bala Dutta went to the courtyard of the house (place of occurrence) and found that condemned prisoners, Rakhal Chandra and Nepal Chandra caught hold of the deceased and were taking the deceased towards the dwelling hut of Rakhal. He then stated that condemned prisoner Nepal Chandra caught hold of his father and condemned prisoner Rakhal Chandra dealt a dao blow on the head of the deceased who fell down on the ground. He raised hue and cry and the condemned prisoners assaulted him and his mother also. On hearing their hue and cry, neighbours Jagadish Chandra Das, Shudhangshu Bhushan Das, Swapan Chandra Nandi, Aujit Chandra Dhar, Khitish Chandra Das and others came to the place of occurrence and saw and heard narration of the occurrence. He further stated that his father was admitted to local Debidwar Hospital for treatment and for better treatment he was taken to Comilla Medical College Hospital where he succumbed to his injuries. PW 3 Sodesh Chandra Das is another eye-witness to the occurrence. His dwelling house is at distance of 100 yards from the place of occurrence. He stated the occurrence took place on 26-2-1999 at about 7-00 AM at the courtyard in front of the dwelling hut of Rakhal. He also stated that Nepal Chandra caught hold of the deceased and Rakhal gave a dao blow on the head of the deceased who fell down on the ground. He also stated that PWs 2 and 4 were present at the time of occurrence. He further stated that PWs 2 and 4 raised hue and cry and neighbours Jagadish and others came to the place of occurrence. PW 4 Sumita Bala, wife of the deceased, is another eyewitness of the occurrence. She stated on the date of occurrence at about 7-00 AM her husband woke up from sleep and was going to the nearby pond to wash his hands and mouth. At that time condemned prisoners, Nepal and Rakhal caught hold of her husband and was taking him towards their hut. She further stated that she and her son Shanjit Chandra Dutta, (PW 2) went to the place of occurrence and saw condemned prisoner Nepal catching hold of the deceased and condemned prisoner Rakhal giving a dao blow on the head of the deceased who fell down on the ground. PW 5 Jagadish went to the place of occurrence on hearing hue and cry raised by son and wife of the deceased and saw the deceased lying with bleeding injuries on the head at the courtyard of the dwelling house and also saw condemned prisoners at the place of occurrence. PW 6, Khitish Chandra Das went to the place of occurrence immediately after the occurrence and saw the deceased lying with bleeding injury at the courtyard, of the dwelling house and also heard .narration of the occurrence from the son and wife (PWs 2 and 4) of the deceased. PW 8, Amrita Lal Dhar also stated that he saw the deceased with bleeding injury at the courtyard of the dwelling house and heard narration of the occurrence from PWs 2 and 4. PW 9, Sudangshu Bhusan Das also stated the same thing, PW 10, Behar Kumar Shil, investigating officer of the case, is a formal witness. The doctor who held postmortem examination over the dead pody of the deceased has nat been examined by the prosecution in this case.

10. Thus we find PWs 2, 3 and 4 are eyewitnesses to the occurrence, PW 5 saw the condemned prisoner running away from the place of occurrence. Others heard narration of the occurrence from PWs 2, 3 and 4 as we have discussed above, PW 3 was not cross examined by the learned lawyer engaged for condemned prisoner Rakhal Chandra Naha as learned Advocate was absent in the Court. But the learned State defence lawyer for condemned prisoner Nepal Chandra Naha duly cross-examined the witness. The learned Advocate for the petitioner submits that the evidence of the PW 3 should be left out of consideration as· in a case involving capital punishment it was the duty of the trial Court to engage a lawyer as per provisions of Legal Remembrancer's Manual to defend the accused. For argument's sake, if we concede that the evidence of PW 3 should be left out of consideration, then also we have the evidence of two eyewitnesses namely PW 2 and 4.

11. In this case the post-mortem examination report of the dead body of the deceased was used in evidence as per provisions of section 509A of the Code of Criminal Procedure. It appears that the requirements of section 509A of the Code of Criminal Procedure were not complied with and, as such, the use of the same under section 509 A of the Code of Criminal Procedure was not proper by the trial Court.

12. The trial Court and, the High Court Division relied on the evidence of two eyewitnesses namely PWs 2 and 4 who are most natural and probable witnesses of the case being inmates of the place of occurrence house and also considering the fact that the occurrence took place in the early morning at 7-00 AM on the day of occurrence at the courtyard of their dwelling house and at that time no outsider was supposed to remain present at the place of occurrence. Therefore, the trial Court and the High Court Division rightly placed reliance on the evidence of those two eye-witnesses, although they are son and wife respectively of the deceased.

13. In the absence of post-mortem examination report, the ocular evidence of PWs 2 and 4 regarding the injuries caused on the person of the deceased by the condemned prisoner can be safely relied upon. In the case of Abdul Quddus vs State reported in 43 DLR (AD) 243 it was held that medical evidence is only corroborative in nature and the ocular evidence of the eye-witnesses which substantially corroborates the major injuries on the person of the deceased must be accepted. Therefore, in the absence of post-mortem examination report, on the basis of ocular evidence of PWs 2 and 4, the conviction of the condemned-prisoner-petitioner can be sustained.

14. The learned Advocate for the petitioner submitted that during examination of the condemned prisoner-petitioner under section 342 of the Code of Criminal Procedure, the evidence of the prosecution witnesses appearing against him were not explained in detail and as a result he has been prejudiced. It is true that the trial Court ought to have explained the evidence appearing against the condemned prisoner-petitioner in detail during his examination under section 342 of the Code of Criminal Procedure but the condemned prisoner-petitioner Rakhal Chandra Naha was very much present in the Court while prosecution witnesses were examined and cross-examined and, as such, in our view, he was not prejudiced in this respect.

15. Therefore, in the facts and circumstances of the case and in view of the discussion above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.

Accordingly, the Jail Petition is dismissed.