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Petitioner: THE STATE VS Respondent: ATAB ALI & JOYNAL ALIAS JOYNAL ABEDIN
P L D 1969 Dacca 189
P L D 1969 Dacca 189
Before Salahuddin Ahmed and Abdul Moudud, JJ
THE STATE
Versus
(1) ATAB ALI AND
(2) JOYNAL alias JOYNAL ABEDIN‑Condemned -Prisoners
Death Reference No. 3 and Criminal Appeal No. 160 of 1968, decided on 10th May 1968.
(a) Evidence Act (I of 1872), S. 32‑Dying declaration recorded by Police Officer in Hospital in presence of Doctor and Nurse, both attesting same‑‑Doctor and Nurse giving evidence that dying declaration was recorded in their presence‑No suggestion of existence o f any ill‑will or cause thereof against accused nor any reason why Police Officer should create false dying declaration implicating accused‑Dying declaration, in circumstances, accepted in evidence.
(b) Evidence Act (I of 1872), S. 32‑Dying declaration containing long and detailed statement‑Contention that having regard to number and nature of Injuries on person making same it was physically impossible for him to make such lengthy statement‑Post‑mortem report revealing that deceased had capacity to speak‑Medical evidence on point further corroborated by independent witnesses‑Plea that dying declaration was false, in circumstances‑Not accepted.
(c) Penal Code (XLV of 1860), S. 302‑Murder‑Circum stantial evidence‑Evidence of three witnesses that soon after occurrence, accused were seen at place of occurrence, in extremely suspicious circumstances, armed with crime weapons and upon arrival of witnesses running away‑Injured person informing witnesses about identity of accused who had assaulted him‑Such evidence corroborated by dying declaration ‑ Circumstantial evidence in circumstances, held, of strong character leading to reasonable inference that accused injured deceased.
(d) Penal Code (XLV of 1860), S. 302‑Vurder‑Assailants laying in wait for deceased at lonely place with full knowledge that deceased was due to come that way at relevant time and inflicting injuries to deceased with dangerous weapons with intention of causing his death‑Prosecution case, held, proved beyond doubt and accused rightly convicted under S. 302/34.
(e) Penal Code (XLV of 1860), S. 302‑Murder‑Sentence Deceased absolutely unarmed, way‑laid at lonely place at evening time‑Nature of injuries, place and time selected for crime clearly demonstrating that it was a pre‑planned, deliberate, cold‑blooded murder executed with utmost cruelty‑No extenuating circumstance available on record in favour of lesser sentence‑Death sentence, in circumstances, held, appropriate.
(f) Penal Code (XLV of 1860), S. 302‑Murder‑Motive Evidence showing that deceased on night previous to occurrence had assisted police party in searching houses of accused in connection with a dacoity case‑Existence of grudge on that account mentioned by deceased in dying declaration‑Held, there was clear and strong motive for accused to kill deceased.
A. T. M. Masud, Deputy Legal Remembrancer and Muhammad Ali for the State.
Serajul Huq, Bazlur Rahman Talukdar and H. K. Abdul Hye for the Condemned‑Prisoners.
JUDGMENT
SALAHUDDIN AHMED, J.‑This is a Reference under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death passed upon the two condemned‑pri soners Atab Ali and Joynal Abedin alias Jainal under section 302 read with section 34 of the Pakistan Penal Code by Mr. Ameenuddin Ahmad, Additional Sessions Judge, Mymensingh. There is also an appeal by the two condemned‑prisoners from the order of conviction and sentence made under section 302 read with section 34 of the Pakistan Penal Code. Both the matters have been heard together and they are now being disposed of under one Judgment.
Deceased Harendra Chandra Sarker was a Dafadar of Babakhali Union Council No. 12 within Police Station Kotwali in the district of Mymensingh. It is stated that he lived with his family in the house of his brother‑in‑law. P. W. 1 Prafulla Chandra Sarkar at Beltali village within the aforesaid Police Station. Prosecution case is that on Friday the 21st Poush, 1373 B. S. corresponding to 6th January 1967 at about sun set while Harendra Chandra Sarker was returning home on his bicycle via Mymensingh‑Trishal Road from Mymensingh Town where he had gone to coach some students as usual, and when he had arrived at a spot to the south of Kalir‑Tikor within village Digar‑kanda the two condemned‑prisoners armed with dagger and duo suddenly attacked him and inflicted on him multiple injuries on different parts of his body. A truck arrived at the scene of the occurrence, and its driver having seen two persons on the road, a bicycle and a chaddar and a person lying on the road stopped his truck and asked his labourers on the truck to chase the said two persons. The driver himself along with another labourer approached the man lying on the road and was told by him that he had been injured by Atab Ali and Jainal (the two condemned ‑ prisoners). The labourers who chased but failed to catch the men recognized them to be the two condemned‑prisoners. On hearing a hue and cry some residents of the locality too, arrived at the place of occurrence. A member of the Union Council who was travelling in a baby taxi also happened to arrive there and on enquiry by him Harendra Chandra Sarkar stated that he had been injured by Jainal and Atab (the two condemned‑prisoners). The member took Harendra Chandra Sarkar to the Mymensingh Medical College Hospital in the baby taxi and the injured was admitted there on the same day at about 7‑30 p. m. On receiving a message from the Hospital an Assistant Sub‑Inspector attached to Kotwali Police Station arrived at the Hospital and recorded the dying declaration of the injured Harendra Chandra Sarker .on the same day in presence of the Registrar, Surgical Units attached to the Medical College Hospital, Mymensingh and a 'Senior Staff Nurse of the Hospital. Both the hands of Harendra ,Chandra Sarker having been severed by his assailants he was unable either to sign the declaration or put his thumb‑impression thereon. On the basis of this dying declaration the said A. S. I. of Police, namely, P. W. 18 Dhirendra Lal Talukdar dodged the First Information Report at the Kotwali Police Station on the same day at about 10 p. m. The thana is five miles off from the place of occurrence. Harendra Chandra Sarker :having died in the Hospital the same night an inquest was held on his dead body on 7‑1‑67, and the body was later sent through ,a constable for post‑mortem examination which was duly held by P. W. 5 Dr. M. A. Gani on 7‑1‑67 at 3 p. m. In course of the investigation that followed the lodging of the First Informa tion Report, the police visited the place of occurrence and prepared a rough sketch map of the locality and seized certain alamats including blood‑stained earth, grass and some hair and a bicycle. A charge‑sheet against the two condemned‑prisoners having been submitted by the police a preliminary enquiry was held by a Magistrate lat Class who found a prima facie case established against the two condemned‑prisoners under section 302 read with section 34 of the Penal Code. They were accordingly committed to the Court of Sessions to stand trial on a charge of murder under section 302 read with section 34 of the Penal Code.
The condemned‑prisoners pleaded not guilty to the charge framed against them. Their defence was that the condemned prisoners while acting as labourers in the truck driven by P. W. 13 Abu Taher had a quarrel with the driver P. W. 13 and therefore they were falsely implicated by the driver and the labourers of the truck. The defence further contended that it was physically Impossible for Harendra Chandra Sarker to speak or make any statement prior to his death. It was also suggested to some of the prosecution witnesses that they deposed at the instance of the police.
The trial of the condemned‑prisoners before the Court of Sessions commenced with the aid of three assessors but on the third day of the trial one of the assessors was discharged as he had fallen ill and was bedridden. The trial, therefore, continued with the aid of the remaining two assessors. Both the assessors unanimously found the two condemned‑prisoners guilty under section 302 read with section 34 of the Penal Code and the learned Additional Sessions Judge agreeing with them convicted the two prisoners under section 302/34 of the Penal Code and sentenced each of them to death. And hence the reference and the appeal.
Death of Dafadar Harendra Chandra Sarker as a result of the injuries inflicted on him has not been challenged, and it has been amply and sufficiently proved by P. W. 1 Prafulla Chandra Sarker, brother‑in‑law of the Dafadar, P. W. 21 Abdur Rouf, A. S. I. who held the inquest over the dead body of the Dafadar; by the Constable P. W. is Kafiluddin Molls who, identified the body at the post‑mortem examination, and by P. W. 5 Dr. M. A. Ghani who held the autopsy. We are, therefore, satisfied that Dafadar Harendra Chandra Sarker died in consequence of the injuries inflicted on him.
The place, date and time of occurrence are also not in dispute and they have been sufficiently proved.
The important question for consideration is whether the two, condemned‑prisoners are responsible for the injuries on the said Dafadar which led to his death, and if so with what intention or knowledge they caused those injuries.
The evidence adduced by the prosecution in support of its case may conveniently be put under three groups.
It appears from the evidence that a truck driven by P. W. B and having on it a number of labourers were among the first to arrive at the scene of occurrence. P. W. 13 Abu Taher is the driver of the said truck, and it is his evidence that they were proceeding from Charkhai with the truck loaded with sands to Mymensingh Town via Mymensingh‑Trisal Road, and they, arrived at the place of occurrence at Iftar time at about 5‑30 p. m. Seven labourers including P. W. 3 Kamaruddin, P. W. 4 Abul Hossain, P. W. 9 Ahmed Ali, P. W. 14 Altab Ali and P. W. 17 Jamshed were in the truck. While the truck was approaching Kalir‑Tikor P. W. 13 saw from a distance of 100/200 cubits two persons on the pucca road. The witness saw a bicycle Exh. I and a Cheddar Exh. 11 lying on the road and also saw a man lying on the said road. As soon as the truck was stopped the said two persons began to run. P. W. 13 recognised those two persons to be Atab and Jainal (the two condemned‑prisoners): The witness ordered the said labourers to chase the two running, persons and himself proceeded to the person who was lying on the road. On enquiry the said person gave out his name as Harendra Chandra Sarker, Dafadar of Belitali Union. The injured requested the witness to take him to Mymensingh Hospital immediately for treatment. The injured stated that he had been beaten and injured by Atab and Jainal Ali on the road. Some of the labourers who had chased the two running men returned and told the witness that they had recognised the two running persons to be Atab Ali and Jainal. As the truck was loaded the witness could not take the injured person to the Hospital. A few people had assembled on the road and the witness left with his truck and labourers and later told about the occurrence and recognition of the aforesaid two persons to the owner of the truck. The witness further stated that he saw (dao) and dagger in the hands of Jainal and Atab Ali while they were running away. In cross‑examination the witness stated that the said two culprits were about 30‑35 cubits away from the place where he stopped the truck and that they were facing the truck. The. witness also stated that both Jainal and Atab Ali were known to him from before. The witness denied that the two condemned‑prisoners acted as labourers and that they had quarrelled with him before.
P. W. 3 Kamaruddin is one of the labourers and he has corroborated the driver P. W. 13 in material details P. W. 3 has stated that he noticed the bicycle Exh. I and Chaddar Exh. II lying on the road and saw two persons going towards west from a place near Kali‑Tikar and they were chased by some of the labourers. The witness found Harendra Chaddar Dafadar lying injured by the side of the road and saw the top of his two wrists cut away. The witness bas proceeded to state that the injured Dafadar‑ named Atab and Jainal as the two persons who had assaulted and injured him. In cross‑examination in answer to a question put by the defence lawyer as to whether the Court Inspector tutored him to say the name of the accused, the witness at first answered "No" then said "Yes". The witness further stated that so long they were there none else came and that the injured disclosed the names of his assailants with some difficulty. The witness denied that the prisoners ever worked with them in any truck or that he had any enmity with them.
P. W. 4 is one of the labourers who chased the two running persons. He has corroborated the two earlier witnesses, and has said that at about Iftar time they were coming towards Mymensingh Town from Charkhai and when they arrived near Kalir‑Tikar they saw the said bicycle and the Chaddar and that when the truck wag stopped they saw two persons running towards West. On being ordered by the driver the witness along with some other labourers chased the said two persons, but failed to catch them. The witness identified Atab and stated that he recognised him as one of the said two running persons. Later the witness reported about his recognition to the truck driver P. W. 13. In cross‑examination the witness stated that just about Iftar time they reached the spot and at that time there was twilight.
P. W. 14 Altab Ali is another labourer who has corroborated the earlier witnesses. He has stated that at about sunset they were returning from Charkhai when they saw the said bicycle and Chaddar lying on the road near Kalir‑Tikar. The witness and the driver (P. W. 13) got down from the truck and saw a man lying down on the road with bleeding injuries. On enquiry the injured man said that he was Harendra Dafadar of Beltali Union and that he was assaulted by Atab Ali and Jainal with dao and dagger. In cross‑examination the witness stated that he was sitting in the driving seat with the driver and that the injured with difficulty disclosed the names of his assailants.
P. W. 17 Jamshed is another labourer land he has corroborated the driver of the truck and other labourers. The witness has stated that it was about Iftar time when they were returning from Charkhai to Mymensingh when they saw the said bicycle and Chaddar lying on the pucca road. The driver stopped the truck and ordered the labourers to catch the two persons who were running away. Accordingly the witness along with four other labourers chased the two persons and while so doing the said two persons turned towards their pursuers and the witness thus recognized them to be Jainal and Atab. The witness has further stated that he saw dao in the band of Jainal and dagger in the hand of Atab. The witness has proceeded to say that the two condemned‑prisoners armed with weapons threatened them from some distance and then out of fear he and his companions returned to the truck. In cross‑examination the witness stated that he knew the said two accused persons by name and face.
P. W. 9 Ahmed Ali is another labourer who was on the truck. The witness was tendered for cross‑examination and he stated that at about Iftar time they started by truck and they stopped the truck at Kalir‑Tikar. He, however, stated that he could not recognise any one when chased.
A suggestion was put to only two of the aforesaid witnesses that the two condemned‑prisoners acted as labourers in the said truck and that they had quarrelled with them. This suggestion was categorically denied by P. Ws. 13 and 3, and there is absolutely no material to support such a suggestion. No reason has been suggested to any of the witnesses to indicate as to why they should falsely depose against the two condemned‑prisoners. The evidence of the truck driver and the labourers are consistent and we find no reason to disbelieve them.
It has been contended by Mr. Serajul Huq, learned Advocate appearing on behalf of the condemned‑prisoners that these witnesses are not reliable and that they had deposed falsely to oblige the police. The insinuation, that they deposed at the instance of the police no such suggestion was put to anyone of the aforesaid six witnesses.
As regards their reliability some alleged minor inconsistencies were brought to our notice. It was pointed out that while P. W. 4 stated that they returned from the chase because they were ordered by P. W. 13 to do so, P. W. 17 said that they returned because they were threatened by the two condemned prisoners. Furthermore, it was pointed out that the labourers who chased the two condemned‑prisoners did not say whether they saw any injured man lying on the road or not. These different statements are of inconsequential nature and can hardly be characterised as inconsistent.
We now proceed to consider the evidence of the next group of witnesses, namely, P. W. 2 Abdul Wadud, P. W. 12 Abdul Qualm Khan and P. W. 19 Abdur Rahman. The first two witnesses in this group are local men who arrived at the scene of occurrence on hearing a hue and cry. P. W. 19 Abdur Rahman is a member of Bailar Union Council. He happened to be passing by Mymensingh‑Trishal Road in a baby taxi about the time of occurrence. P. W. 19 has stated that on 6th January 1967 he was going home by Mymensingh‑Trishal Road in a baby taxi at about 5‑30 p. m. and when he arrived at the place of occurrence at about 5‑45 p. m. he saw 10/12 persons standing near Kalir‑Tikor. The witness stopped the baby taxi and got off and found Harendra Dafadar, whom the former had known from before, lying on the road with bleeding injuries on his person. The Dafadar asked the witness to take the former to the Hospital at once, and stated that Jainal and Atab Ali bad assaulted and injured him near Kalir‑Tikor while he was going home from Mymensingh Town. On enquiry the Dafadar told the witness that the former had accompanied the police to the house of the condemned‑prisoners for the purpose of making search in connection with a dacoity and for that reason the prisoners had grudge against the Dafadar. The witness saw one shoe, a cycle Exh. I and a Chaddar Exh. II, lying on the road. He saw Nuru Munshi alias Wadud (P. W.2) present there when Dafadar mentioned the names of his two assailants. The witness further stated that he kept the cycle with P. W. 2 Abdul Wadud and took the injured Dafadar in the baby taxi to S. K. Hospital, Mymensingh and he was admitted in the Emergency Ward. On arrival at the Hospital the Dafadar told the witness that the money bag of the Dafadar with some money was lying in the pocket of his shirt and the witness took out the money and produced the same before the Investigating Officer. In cross-examination the witness stated that two other passengers were in the said baby taxi, but he could not tell the names, and that It was a service baby taxi. The witness further stated that the Dafadar had mentioned the names of the accused persons in presence of the baby taxi driver and the two passengers but that driver was stranger to the witness. The witness denied that he was deposing falsely at the instance of the police.
P. W. 19 Abdur Rahman has been corroborated by both the local men, namely, P. Ws. 2 and 12. P. W. 2 Abdul Wadud bas stated that he was performing his Maghrib prayer In the mosque at his house when he heard a hue and cry. After finishing his prayer he rushed to the place of occurrence and found Harendra Dafadar with bleeding injuries lying on the pucca road near Kalir‑Tikor. Abdul Quaim Khan (P. W. 12) and others were also present there. The witness saw the top portion of both the wrists of the Dafadar in existence and found the aforesaid cycle and Chaddar lying on the road. The witness has proceeded to state that Abdur Rahman (P. W. 19) a member of Bailar Union Council arrived there in a service baby taxi, and enquired from the injured Dafadar as to who had caused injuries and the injured replied that he bad been assaulted by Jainal and Atab Ali. Abdur Rahman then took the injured Dafadar in the baby taxi and left the cycle Exh. I in the care of the witness. On the following day the Daroga took charge of the cycle from the witness. The witness has stated that his house is "about call's distance" from the place of occurrence. In cross- examination the witness stated that among the 5/6 persons he saw at the place of occurrence, he knew only Abdul Quaim (P. W. 12) by name. The witness has stated that the injured Dafadar was‑ not senseless. The witness denied that he was deposing falsely.
P. W. 12 Abdul Quaim Khan has corroborated P. Ws. 19 and 2, and has stated that he. heard a hue and cry at about Iftar time. After finishing Iftar be rushed towards the place of occurrence and found an injured man lying on Mymensingh Trishal Road. He also saw a cycle Exh. I and a Chaddar If. On arrival at the place of occurrence he found some other persons including Abdur Rahman, Member of Bailar Union Council. The witness at first stated that the injured made no statement to Abdur Rahman in his presence. However, immediately thereafter the witness stated that the "injured Dafadar made statement on being asked by Rahman, Member Union Council, that he was assaulted by Atab Ali and Jainal". The witness again added that he heard the said statement. In cross‑examination the witness stated that it might be 8 or 8‑30 p. m. when he arrived at the place of occurrence and that among the many people assembled there Sikandar, Sahed, Janu Moral, Ann Moral, Member, Union Council; Kasim, Bachu and Hasan Moral were there. The witness stated that he did not see Nuru Meah (P. W. 2) there. The witness further said that he had not seen any truck on his arrival.
P. W. 12 appears to us to be a reluctant witness and in cross‑examination he has tried to oblige the defence.
Hardly any suggestion has been given to P. Ws. 2 and 19 as to why they should falsely implicate the two condemned‑prisoners. We see absolutely no justification for disbelieving the evidence of P. Ws. 2 and 19.
In the third group there are witnesses who heard the injured Dafadar mention the names of his assailants in the Hospital. In this group comes P. W. 1 Prafulla Chandra Sarkar, brother of the wife of deceased Harendra Dafadar. The witness has stated that at about 5‑30 p. m. he heard some one crying that Harendra Dafadar had been killed and simultaneously he heard a hue and cry. The witness immediately rushed towards the place of occurrence and found some cut hair and blood lying near Kalir‑Tikor on the Mymensingh‑Trishal Road. Some people who had assembled there told the witness that the Dafadar had been murdered and taken to the Hospital. The witness at once ran to the S. K. Hospital, Mymensingh and found the Dafadar lying in a bed in the Hospital with multiple injuries on his person. The Dafadar told the witness that while he was on his way back from Mymensingh, and had arrived near Kalir‑Tikor he was assaulted by Atab Ali and Jainal a little before sunset. The witness further stated that the Dafadar died in the same night in the Hospital. The witness identified the cycle Exh.1 as belonging to the Dafadar. The witness further stated that on the night previous to the occurrence the said Dafadar along with the Kotwali Police had searched the house of Atab Ali and Jainal in connection with a dacoity case and. so the two accused had grudge against the Dafadar. In cross‑examination the witness stated that there was no house near the place of occurrence. The witness further stated in cross‑examination that he did not see the recording of any dying declaration by the police. The witness denied that the Dafadar did not disclose the names of the accused persons to him or that the witness was deposing falsely.
P. W. 18 Dhirendra Lal Talukdar is an Assistant Sub -Inspector of Police who recorded the dying declaration (Exh. 2): The witness has stated that as the result of a message received from the Hospital he arrived at the Hospital at 7‑30 p. m. and recorded the statement of the injured Dafadar in a plain paper in presence of P. W. 7 Dr. Matiur Rahman Talukdar, C. A.‑Cum- Registrar, Surgical Unit and P. W. 6 Dilip Kumar Roy, a Senior Male Staff Nurse. The witness has stated that Exh. 2 was recorded by him according to the statement of the Dafadar and that it was read over to the injured, but that due to his inability to do so the injured could not put his signature to or thumb‑impression upon it. The witness has further stated that the said Registrar P. W. 7 Dr. Matiur Rahman Talukdar and P. W. 6 Male Staff Nurse signed as attesting witness in Exh. 2. The witness seized eleven items of articles, which were produced by Male Nurse P. W. 6 at the Hospital. In…
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