The New Nation - Internet Edition

APPELLATE DIVISION

(Criminal)

Md Ruhul Amin CJ

MM Ruhul Amin J

Md Joynul Abedin J

Md Abdul Matin J

Judgment January 3rd, 2008

Mukter Hossain Khan (Md) .. t..Appellant

vs

Statettttt..Respondent

Evidence Act (1 of 1872)

Section 106

In the absence of cogent evidence as to the presence of the condemned-petitioner in the occurrence house with his family, the condemned-petitioner cannot be taken to be liable to prove the fact as to how his wife and 3 (three) year old daughter met their death. t.. (7)

ABM Bayezid, Advocate-For the Appellant.

A Raut, Deputy Attorney-General-For the State-Respondent,

Judgment

Md Joynul Abedin J: This appeal by leave is directed against the judgment and order dated 5-5-2004 passed by the High Court Division in Death Reference Case No. 9 of 2002 referred by the learned Sessions Judge, Manikgonj for confirmation of death sentence of the petitioner and Jail Appeal No.128 of 2002 filed by the petitioner from Manikgonj jail, which were heard and disposed of together by the High Court Division accepting the death reference and dismissing the aforesaid jail appeal affirming the conviction and capital sentence awarded under section 302 of the Penal Code.

2. The short fact is, that on 18-7-1995 one Monowara Begum (PW 6) lodged information with Ghior Police Station that a body of a female child was floating on the water in a nearby bamboo bush on the eastern side of her house. Since the dead body was decomposed she could not recognise the same. The age of the child was approximately 3 years. One Mukter Hossain used to reside in her house with his wife and daughter. 'He left the house on 13-7-1995 and before leaving said Mukter Hossain told some neighbours that he shifted his wife and daughter to his relative's house in the morning. The informant and the neighbours suspected that the dead body was that of the daughter of the condemned prisoner Mukter Hossain. On the basis of the written application initially an UD Case No. 14 of 1995 was registered with the Ghior Police Station. Sub-Inspector Zaminur Rahman visited the place of occurrence, prepared the inquest report of the dead body and seized 3 bricks tied with the dead body. In the meantime, he got information that another dead body of a woman was found in front of the house of Manowara Begum (PW 6), which was floating on the water. He took photograph of the dead body of the woman and prepared the inquest report. The hair and skin on the head were rooted, teeth were broken and her abdomen was tom. There was injury on the private organ of the dead body. He sent both the dead bodies to the morgue for autopsy and after having received the postmortem report lodged the FIR on 28-8-1995 and Ghior Police Station Case No.10 of 1967 dated 29-8-1995 was started.

3. The police after investigation submitted charge sheet against the condemned-prisoner Mukter Hossain under sections 302/201 of the Penal Code and on receipt of the case record, the trial Court framed charge under the aforesaid sections of the Penal Code but the same could not be read over to the condemned-prisoner due to his abscondence. The condemned-prisoner was however, examined under section 342 of the Code of Criminal Procedure, as he was in the meanwhile taken into custody, to which he pleaded innocence and demanded trial.

4. The learned Sessions Judge, Manikganj, upon hearing the parties, found the condemned prisoner guilty under section 302 of the Penal Code and sentenced him to death by his judgment and order dated 30-3-2002 and made a reference to the High Court Division for confirmation of the sentence of death. The condemned-petitioner also preferred the Jail Appeal No. 128 of 2002 against the conviction and sentence and the High Court Division accepted the reference and confirmed the sentence of death by the impugned judgment by dismissing the appeal.

5. Leave was granted to consider the contentions that the trial Court convicted and sentenced the condemned-petitioner to death on the basis of circumstantial evidence and the High Court Division confirmed the same on the same ground although the circumstantial evidence was not so irresistible, cogent and fonnidable as not to admit any hypothesis of innocence of the condemned-petitioner and the prosecution could not also prove any motive on the part of the condemned-petitioner to kill his wife and a 3(three) year old baby daughter and also that the impugned judgment was based on non-consideration and misreading of evidence on record.

6. It is argued by the learned Advocate for the petitioner that the prosecution has not been able to prove beyond reasonable doubt on the basis of the circumstantial evidence on record that the petitioner committed the murder of his wife and a 3 (three) year old female child. It is further contended that the prosecution has also failed to prove by the evidence on record that the petitioner was present at the house at or about the time of the occurrence; rather PW II Bhabesh Shikder, a next-door neighbour, by his evidence in cross-examination proved that the petitioner was not seen in the occurrence house from before the date of occurrence. The relevant portion of his evidence in cross-examination rcads as under:

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7. We have heard the learned Advocate and perused the connected papers including the impugned judgment. We find from the evidence and materials on record that the prosecution could not prove beyond reasonable doubt that the condemned petitioner was with his family in the occurrence house at or about the time of occurrence. In the absence of evidence as to the presence of the condemned-petitioner in the occurrence house with his family the condemned-petitioner cannot be taken to be liable to prove the fact as to how his wife and 3 (three) year old daughter met their death by invoking section 106 of the Evidence Act. The onus of proof that it was the condemned petitioner and none else who killed his wife and daughter was all along on the prosecution and it never shifted on the condemned petitioner in the absence of any proof beyond reasonable doubt that he was present in the occurrence house when the occurrence took place. It is all the more difficult for the prosecution to press section 106 into service when the petitioner was also prosecuted for the murder of his baby daughter at the same time. We therefore, find good deal of force in the points argued by the learned Advocate for the petitioner.

The appeal is accordingly allowed.