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Petitioner: NAWAB ALI BISWAS VS Respondent: THE STATE
P L D 1962 Dacca 278
P L D 1962 Dacca 278
Before S. M. Murshed and M. Idris, JJ
NAWAB ALI BISWAS AND OTHERS‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 594 of 1960/Death Reference No. 6 of 1960, decided on 21st November 1960.
(a) Witness‑Child capable of understanding questions put to him and giving intelligible and sensible answers‑Evidence admitted.
(b) Witness‑Mere fact that witness had deposed against some of the accused in a previous case‑No reason for disbelieving such witness.
(c) Witness‑Person, not an eye‑witness, lodging first infor mation report‑Mentioning large number of other persons in addition to accused‑Not sufficient ground for disbelieving testimony‑Minor discrepancies and omissions in statements‑Do not render evidence of witness unreliable.
(d) Evidence Act (I of 1872), S. 32‑Difference of opinion between doctor recording dying declaration and doctor holding post‑mortem examination, in regard to possibility of deceased's being able to talk after receiving fatal injury on neck‑Court left out of consideration dying declaration by way of caution.
(e) Criminal Procedure Code (V of 1898), Ss. 161 & 62--- Witness tendered for cross‑examination‑Defence entitled to use statement recorded under S. 161 to contradict witness with regard to evidence given in cross‑examination.
(f) Criminal Trial‑Prosecution witness declared to have been won‑over by accused‑Adverse inference cannot be drawn against prosecution for non‑examination of such witness.
(g) Penal Code (XLV of 1860), S. 34‑Common intention To be granted from facts and circumstances of each case.
(h) Penal Code (XLV of 1860), S. 302/34‑Charge established against more than one accused‑All equally guilty‑‑Sentence of death passed only on one accused reduced to that of transportation! for life.
Ataur Rahman Khan and Zamiruddin Ahmed for Appellants.
Abdul Hye Chowdhary for the State.
JUDGMENT
MURSHED, J.‑This case arises out of a reference under section 374 of the Code of Criminal Procedure and also out of an appeal which is numbered as Appeal No. 594 of 1960. This Judgment will dispose of both the reference as well as the appeal.
The reference has been made by Mr. Amjad Hossain Chowdhury, Additional Sessions Judge, Dacca for confirmation of the death sentence which has been passed on accused Nowab Ali Biswas alias Naba Biswas alias Naha under section 302/34 of the Pakistan Penal Code.
The appeal is by the condemned prisoner, the said Nawab Ali Biswas alias Naha Biswas alias Naha as well as by four others, namely, Nowab Ali Sheik alias Naha S3eikh alias Naba, Joynal Sheikh, Sheikh Gani and Eunus Ali alias Sheikh Eunus Ali. For the sake convenience we shall describe them as appellants.
The aforesaid five accused persons were tried by the said Additional Sessions Judge with the aid of Assessors on charges under sections 302/34 and 120‑B of the Pakistan Penal Code.
Prosecution case may be briefly stated as follows:
On the 17th of Falgoon, 1366 B. S., corresponding to the 1st of March 7960, at about 9 or 9‑30 a. m. one Lalu Biswas was returning home from a bazar nearby, called Ujan Boyra Bazar, with a bottle of kerosene oil in his hand containing half a bottle of red kerosene oil. He had gone to the said bazar to purchase kerosene oil in the morning.
Appellants Eunus Ali, 7oyt`al and Nawab Ali Sheikh alias Naha Sheikh alias Naha were following the said Lalu Biswas and while the latter was returning from the bazar with the bottle of kerosene oil and had reached a place near the house of one Khaimuddin (P. W. 1), the aforesaid three persons fell upon him and pushed him down on the ground on the District Board Road by which Lalu Biswas was coming home from the bazar. Immediately, at this juncture, the other two appellants, namely, Nawab Ali Biswas alias Naba Biswas alias Naba and Sheikh Gani appeared on the District Board Road and all the five persons began to assault Lalu Biswas with kicks, fists and blows. P. W. 1, Khaimuddin heard sounds of this assault and came out of his cowshed where he was at that time. He saw the five appellants assaulting Lalu Biswas and he intervened in order to stop the assault. The five appellants, however, lifted up Lalu Biswas bodily and carried him into the inner yard of the house of one Waijuddin at a distance of about one hundred cubits. P. W. 1, Khaimuddin followed them. All the five accused persons placed Lalu Biswas on the ground in the inner yard in front of the west bhiti hut of the homestead of the aforesaid Waijuddin. Appellant Naba Biswas took a tapping dao from the west bhiti nut by stretching his hand: the other four appellant kept Lalu Biswas under their hold by seizing him and pressing him down. Thereupon, appellant Nawab Ali Biswas alias Naha Biswas alias Naba dealt a blow with the tapping dao on the back of the neck of Lalu Biswas causing a wide gaping wound as a result of which Lain Biswas fell down on the ground. The appellants then left the place.
P. W. 1, Khaimuddin then wrapped up the wound inflicted on Lain Biwas with a piece of cloth, which has been described as napkin, and raised an alarm.
One Abdul Habib Biswas (P. W. 2), a boy of 10/11 years witnessed the occurrence from the top of a Borui tree (plum tree). He also set up an alarm.
At the alarms raised by the aforesaid witnesses, a number of persons came to the place of occurrence and heard about the same from P. W. 1, Khaimuddin and also from Lalu Biswas. A medical man by the name of Dr. Chittaranjan Datta, who has been examined as P. W. 8 in this case, came to the place of occurrence. The said medical man, Chittaranjan Datta, recorded a dying statement of Lalu Biswas, who made some statements in answer to a few questions and died immediately thereafter without being able to complete the statement.
In the meantime P. W. 5 Abdul Ali Biswas, a son of the deceased Lalu Biswas, came to the place of occurrence and heard about the same from P. W. 1 Khaimuddin and from other persons whose names could not be supplied by the said Abdul Ali Biswas. He immediately proceeded to Harirampur Police Station, which is at a distance of about three miles from the place of occurrence and lodged a first information report at about I1‑30 a. m. on the same day. The Officer‑in‑charge of the Police Station immediately came to the place of occurrence and held an inquest on the body of the deceased Lalu Biswas. He forwarded the same for post‑mortem examination to Manikganj morgue. He also examined witnesses and, upon completion of investigation in this case, submitted charge‑sheet against all the appellants.
After a preliminary enquiry by a competent Magistrate the appellants were committed to the Court of Sessions to stand their trial on the aforesaid charge.
Prosecution case, further, is, that there has been enmity between Lalu Biswas and his brother Kalu Biswas in respect of some plots of land, and, furthermore, that there has been ill feeling between the said brothers arising out of recent elections to Union Council. The land dispute and the said elections divided the people of the locality into two groups and the appellants, it is alleged, belonged to the party of Kalu Biswas.
All the aforesaid appellants pleaded not guilty to the charge framed against them. In so far as the appellant Nawab All Biswas alias Naha Biswas alias Naba is concerned, it appears from the cross‑examination directed on his behalf as well as from the statement made by this appellant in his examination under section 342 of the Code of Criminal Procedure is, that there has been dispute in respect of some plots of land and, furthermore, that there was an occurrence early in the morning of the 17th of Falgoon, when Lain Biswas harvested the kalai crop grown on C. S. plot No. 5191. A riot took place there and the deceased Lalu Biswas received injuries as a result of the said riot. While being carried home the condition of Lalu Biswas became precarious and he was taken in the way to the house of Waijuddin Biswas. In fact, the defence of the appel lants is that the occurrence did not take place in the manner and on the spot as alleged by the prosecution. The case of the other appellants is that they have been falsely implicated in this case.
The Assessors were unanimously of opinion that the appellants were guilty under section 302/34 of the Pakistan Penal Code.
Learned Additional Sessions Judge, on an appraisal of the evidence in this case as well as the relevant facts and circum stances of the case, came to a finding that the charge against the appellants was conclusively brought home against them. He, therefore, agreeing with the unanimous opinion of the Assessors, convicted the appellants under the aforesaid charge and awarded death sentence to Nawab All Biswas alias Naha Biswas alias Nabs and sentenced the rest of the appellants to transpor tation for life, Hence this reference as well as the appeal.
At the hearing of this appeal Mr. Ataur Rahman Khan appeared for the appellants and has taken us through the entire evidence in this case as well as the relevant records along with the judgment pronounced by the learned Additional Sessions Judge. He has contended that the prosecution has failed to establish the charge against the appellants by satisfactory evidence. He has also urged that an adverse inference should be drawn against the prosecution for non‑examination of one Faizuddin, who was a material witness in this case. Further more, he has made a grievance to the. effect that the learned Additional Sessions Judge has illegally prevented him from using the statement recorded by the investigating officer under section 161 of the Code of Criminal Procedure in respect of P. W. 11 Abdul Aziz, who was tendered by the prosecution but not examined‑in‑chief.
P. W. 1 Khaimuddin Sheikh has given evidence in respect of the details of the prosecution case, as stated above. He has stated how he was attracted by sounds of assault when he came out of his cowshed at about "nasta" time. He describes how all the aforesaid appellants set upon their victim, the deceased Lalu Biswas, on the District Board Road. He intervened and separated them and there upon the appellants bodily lifted the said Lalu Biswas and carried him to the inner yard of the house of Waijuddin. He has described how the deceased Lalu Biswas was pressed to the ground by the appellants and while the other appellants held the deceased in their grip, appellant Nawab Ali Biswas alias Naha Biswas alias Naha got hold of a tapping dao and dealt a severe blow with it at the back of the neck of the deceased Lain Biswas causing a wide gaping wound. P. W. Khaimuddin raised an alarm and bandaged the wound with a napkin, which has been marked as Exhibit I in this case. His alarm attracted some witnesses who heard about the occur rence from him and also from Lalu Biswas. On the arrival of one Bhola Doctor (Chittaranjan Datta) Lain Biswas also named appellant Nawab Ali Biswas as his assailant and this was taken down in a piece of paper. After the statement of Lalu Biswas was taken down he immediately died.
It would thus appear that P. W. I Khaimuddin Sheikh ha proved the entire prosecution case. P. W. I was cross‑examined with reference to the statement he bad made to the investigating officer as well as to his deposition in the Committing Court. Mr. Ataur Rahman Khan has argued that this witness should not be believed in first place because it is improbable that he would engage four labourers to do his work while he himself also worked as a day labourer. Learned Advocate for the appellants has further argued that this witness has been contra dicted on material points by his statement to the investigating officer as well as by his deposition in the trial Court. It would be seen that it transpires that he did not state to the investigating officer that he heard the cry of Lalu Biwas being assaulted on his way back from the bazar. He also did not state the same in his deposition before the Committing Court. We do not think that this is at all a serious omission. Furthermore, this witness did not state to the investigating officer that Eunus Ali caught hold of the throat of Lalu Biswas. Again this witness was cross‑examined with reference to his deposition before the Committing Court to the effect that he did not state there that Naba Biswas took the dao from the west bhiti hut. We think that none of these omissions are of any consequence. They are matters of details and the witness has not been contradicted in respect of any vital and material evidence given by him. The witness has further stated that he did not depose before the Committing Court that Faizuddin saw the occurrence. He explained the statement by saying that Faizuddin, in fact, came after the actual occurrence. There are certain other omissions to which our attention was drawn. None of the aforesaid omissions or statements would, to our mind, shake the credit of this witness. T here is also nothing unusual that this witness should engage some labourers for a particular kind of work. From his evidence it transpires that he also possesses land of his own, which he ploughs. In these circumstances, the engage ment of a few labourers by him to do a particular work was not at all unusual.
This witness has been corroborated with regard to material particulars by other witnesses, which we shall discuss hereafter. He has been further corroborated by the other circumstances of this case. It was not suggested to this witness that he bore any ill‑feeling towards the appellants and there is no reason why this witness should give false evidence, against them. The evidence of this witness is straight forward and convincing. It has impressed the trial Court and it also impresses us.
The next witness is P. W. 2, Abdul Habib Biswas. In his examination‑in‑chief he has stated as follows: ‑
"I know Lalu Biswas. It was at about 'nashta' time on a Tuesday in the month of `Falgun' last. I was plucking plum on getting up on a plum tree belonging to Waijuddin and situate to the east of his house, at a distance of 30 (thirty) cubits. From the tree I saw Eunus, Joynal, Gani, Sheikh Naba and Biswas Naha carrying Lalu Biswas into the inner Yard of the house of Waijuddin in front of his west 'bhiti' but (identifies ail the five named accused In dock). Enuns Ali and Joynal held Lalu Biswas by pressing his head down, Sheikh Naba caught Lalu Biswas by the wrist and Gani held him by his feet. Bachu stretched out a 'dao' from the west 'bhiti' hut which Naba Biswas took by stretching his hand. Khaimuddin asked Biswas Naba not to strike Lalu with the 'dao'. Naba Biswas then threatened Khaimuddin with the 'dao' when he retraced back a few steps. Then Naba Biswas dealt a 'dao' blow on the neck of Lalu Biswas while the other four accused had caught hold of him. The accused persons then left the place.
I got down from the plum tree and ran to the house of Laloo Biswas and said to the women folk that Lalu Biswas was murdered in the house of Wajuddin."
Mr. Ataur Rahman Khan has severely criticised the evidence of this witness by saying that he is a child witness, who is capable of being easily tutored. Our attention was drawn to the fact that he has stated that he came to know the meaning of oath two days before he gave evidence before Court. The witness was cross‑examined with reference to his statement before the investigating officer, and in his cross‑examination he has stated as follows:
"It is not a fact that I did not state to the 'daroga' that Eunus and Joynal held Lalu down by his head and Naba Sheikh and Gani by his feet. It is not a fact that I did not state to the 'daroga' that Naba Biswas threatened Khaimuddin with assault by the 'dao'."
It transpires from the evidence of the investigating officer that he did not state so. We do not think that these are serious omissions. In his statement before the investigating officer he has not given the details of the occurrence in the sequence as stated by him in the trial Court. As a matter of fact, this witness was not contradicted on any of the material points which appears in his evidence‑in‑chief.
Mr. Ataur Rahman Khan has attacked his evidence on the ground that it was rather strange that after the incident he raised an alarm but did not enter the house of deceased Lalu Biswas and merely shouted that Lalu Biswas was murdered. We do not think that it is a strange conduct on the part of this witness. The trial Court was satisfied that he was capable of understanding questions asked of him and of giving intelligent and sensible answers to them. Furthermore, he has stated that he realised that it is an act of sin to give false evidence on oath. He has given evidence in a most impressive and convincing manner. It also appears that he has developed sufficient sense of responsi bility to realise that it was his duty to tell the truth. There is a genuine ring of truth in the evidence that he gave in Court. He could not be shaken by heavy cross‑examination to which he was subjected. We, therefore, accept his evidence and see no reason to reject the same.
The evidence of P. W. 1 and P. W. 2 is sufficient to establish the charge against the appellants. The rest of the evidence is corroborative and they corroborate the aforesaid witnesses in all material particulars.
P. W. 3, Amullya Chandra Raha has given evidence with regard to the first part of the prosecution story, namely, the assault on the deceased by the appellants on the District Board Road while he was coming back home from the bazar. He saw the carrying away of the deceased by five persons from the said spot. Subsequently he went to the inner yard of the house of Wajuddin where the deceased was lying with the injuries on his person. He did not actually see the appellant Nawab Ali Biswas alias Naba Biswas alias Naba inflicting the wound on the back of the neck of the deceased but he corroborates the evidence of P. W. 1 Khaimuddin Sheikh with regard to the rest of his evidence. In his cross‑examination his attention was drawn to his statement made to the investigating officer. It transpires that he omitted to mention the names of the persons who had taken and carried away Lalu Biswas from the District Board Road to the inner yard of the house of Wajuddin. He was asked whether he merely told the investigating officer that he Md seen 4/5 men lifting Lalu Biswas and carrying him away toward the house of Wajuddin. But in fact it appears from the evidence of the investigating officer that he did say so. Learned Advocate for the appellants has described this as a very serious omissions. We do not think that this omission discredits the entire evidence of this witness. The witness has not been contradicted on the point that he saw the lifting away of the deceased by five persons from the District Board Road. The omission is with regard to the names of the said persons. At best, we can only hold against this witness that he was possibly not able to identify the said five persons at the place from where the deceased was taken away from the District Board Road. His evidence to the effect that he saw the deceased being lifted away by five persons from the District Board Road, remains unshaken.
Mr. Ataur Rahman Khan has, further, criticised the evidencr1 of this witness by saying that he had given evidence in some case brought by one Nagendra Kumar Sarker, father of P. W. 4 Sudhir Kumar Sarker, in respect of some of the appel lants. We do not think that this establishes any ill‑feeling or enmity between this witness and the appellants before us. On E' the contrary, this witness appears to be an independent witness, and there is no good reason why this witness should give false evidence against the appellants. We, therefore, accept his evidence that he saw the deceased being carried away from the District Board Road by five persons and we also accept the rest of his evidence.
The evidence of P. W. 4 Sudhir Kumar Sarker is almost to the same effect as that of P. W. 3 Amullya Kumar Raha. His evidence was accepted by the trial Court and we also see no good reason for disbelieving him. But inasmuch as P. W. 3 Amullya Kumar Ralia has stated that there has been some litigation between the father of this witness and some of the appellants, we think it safer not to use his evidence against the appellants.
The next witness is P. W. 5 Abdul Ali Biswas. He is a son of the deceased and had gone to the place of occurrence and when he saw his father with a gaping wound, he fell into a swoon and soon after his recovery he heard about the incident mainly from P. W. 1 Khaimuddin Sheikh and from some other persons whose names he could not recollect. He, thereupon, immediately proceeded to the police station and lodged the first information report. He was cross‑examined with reference to the first information report lodged by him. It transpires that in the first information report he had stated the names of sixteen persons and of about 20/25 others (whose names lie could not specify) as the accused persons. Although he mentioned the name of Naba Sheikh in the first information report, he did not state there that the said Naba Sheikh assaulted arid carried away his father from the District Board Road. This witness was definite that he heard about the names of the five appellants from P. W. 1 Khaimuddin Sheikh when he proceeded to lodge the ejahar. This witness is not an eye‑witness to any of the incidents stated above. His first information report is based on what he had heard from others. It was argued that his evidence should not be accepted inasmuch as in the first information report there was a mention of the names of sixteen persons as well as of about 20/25 other persons whose names could not be given by him. We do not think that this is a sufficient ground to disbelieve this witness. There is no reason to disbelieve that lie went to the place of occurrence after his father had received the wound described above and there is no reason to disbelieve that he heard about the occurrence, amongst others, from P. W. 1 Khaimuddin Sheikh. That he lodged a first information, report soon after the occurrence is a patent fact. The first information report substantially corroborates him on the material points in this case. Our attention vas drawn to some minor, discrepancies and omissions which, to our mind, do not shakes the credit of this witness whose evidence is simple and impressive. He could not be shaken on the point that he heard the names of five appellants from P. W. Khaimuddin immediately after tie occurrence. We have no hesitation to accept his evidence. This witness has denied the suggestion that there vas a quarrel earlier in the morning at the time of harvesting kheshari kolas. He had denied that there was maramare. Furthermore, he has emphatically denied that his father received the injury at the kalai khet in the morning. Hs has also denied that when the condition of his father became precarious while being carried home, he was carried to the house of Wajuddin. "'here is no basis for the said suggestions and the evidence in this case completely demolishes them.
P. W. 5 Majibar Rahman held the post‑mortem examination in respect of the dead body of Lalu Biswas. His evidence‑in‑chief is as follows:
"Body moderately nourished. Rigor mortis present Eyes and mouth half open. Blood‑stain and clotted blood were found on back of neck. There were the following injuries :‑
"(1) One gaping incised wound 5" x 2" x bone on bolder right and back of neck.
(2) Abrasion 1" x ' just below and back of left elbow.
On dissection of injury No. 1 it was found that ft had cut the muscles, blood vessels and nerves of lower back of right of neck. It had also cut through the seventh cervical vertebras and also the spinal cord.
Other organs were healthy. The stomach was healthy and it contained about 4 oz. of half digested food. The heart was empty and healthy.
Death in my opinion was due to the effects of injury No. 1 which was ante‑mortem and homicidal in nature. It might have been caused by a sharp cutting weapon, e.g., tapping `dao".
The death was inevitable cause‑ of injury No. 1." In his cross‑examination he has stated as follows:
"The man would die within 2/5 minutes of the injury. He would not be able to talk with such injury."
On recall at the instance of the Public Prosecutor he has stated as follows:
"The vocal cord was not cut or injured in any way."
We accept his evidence‑in‑chief as there is no dispute with regard to it. The injuries found on the person of the deceased by this witness and his opinion to the effect that death was caused by injury No. 1, were not challenged by the defence. We shall hereafter deal with his cross‑examination and re‑examination when we deal with the question of the alleged dying declaration made by the deceased Lalu Biswas.
The next witness is P. W. 8 Chittaranjan Datta. He…
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