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Petitioner: ZAINAL ABEDIN AND Another VS Respondent: THE STATE
Court Name: Dacca Judge(s): Ahsanuddin Choudhury, A. M. Sayem Title: ZAINAL ABEDIN AND Another vs THE STATE Case No.: Criminal Appeal No. 49 of 1966 Date of Judgment:1969-10-16 Reported As: 1970 P Cr. L J 776 Result: Orders accordingly
JUDGMENT
JUDGMENT A. M. SAYEM, J.--This appeal is by Zninul Abedin alias Janu and his father Maaaharuddin Ahmed. They were placed before an Additional Sessions Judge of Barisal to face a trial in connection with an occurrence at Sujabad within Nalchity P. S. Resulting in the death of one Syed Yakub Ali. 1n agreement with the unanimous opinion of four assessors who assisted in the trial, the learned Additional Sessions Judge convicted Zainul Abedin under section 302, P. P. C. And the other appellant under section 302/109, P. P. C., sentencing them each to transportation for life. Hence the appeal. It was not disputed at the trial that Syed Yakub Ali died soon after having sustained an injury on the neck on the 17th Jaistba, 1372 B. S., corresponding to the 31st May 1965, Mr. Shah Fazlul Huq Choudhury, who held the autopsy, described the injury found on the dead body as follows: - "One 3" x 1--"x 2" cut wound at the root of the neck on the left side in front, the wound extending from just above the middle of the left clavicle downward and medially terminating at the lower margin of the left starno-clavicular joint. Left carotid artery was cut. Left clavicle was also cut." In the opinion of the doctor the injury on the deceased was caused by a weapon like a dao, and that the death was due to shock and heamorrhage resulting from the said injury which was ante- mortem and homicidal in nature. Briefly stated, the prosecution case is as follows. Plots Nos. 2500 and 2501 of mouza Sujabad are situated side by side. Plot No. 2501 which belongs to appellant Mazharuddin is situated to the contiguous west of plot No, 2500 belonging to deceased Syed Yakub Ali. About one year before the occurrence some village elders, namely, P. W. 4 Ashraf Ali, P. W, 7 Syed Gulam Rasul, P. W. 10 Ismail and one Rup Mallick demarcated the boundary line between these two plots by inserting three
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pegs. On the date of occurrence, i. e. Urn the 31st May 1965, , at about $ a. m. Deceased Syed Yakub Ali sent for the said Ashraf Ali, Syed Gulam Rasul and Ismail and told them that the peg, inner teri by them were not there. A5hraf Ali, Syed Gulam Rasul and Ismail then accompanied Syed Yakub Ali to the land and inserted new pegs at the old site. Later at about 10 a. m. P Vv, 2 Abdus Sattar, by servant of a cousin id Syed Yakuh Ali, came to the latter's house and informed hint that the appellants were removing the newly inserted pegs. Syed 1'akuh alt then accompanied by his son P. W. 1 Syed Shahidul Alam and P.'J. 2 Abdus Sattar came to his land, and saw the appellants uprooting the pegs. They then asked the appellants not to uproot the pegs, whereupon the appellants got annoyed and heated arguments followed. Appellant Mazltaruddin who had a tree tapping dao in his hand made the same over to his son appellant Zainul Abedin, shout--ing `Kopao', i.e. Strike'. Appellant Zainul Abedin thereupon delivered a blow with the tree tapping dao on the neck of Syed Yakub Ali who fell down on the ground. As a second have on Syed Yakub Ali was being aimed at, P. W. 1 Syed Shahidul Alam clasped Zainul Abedin with both arms and snatched away the dao, with the result that the formar sustained an injury on the knee. The appellants then ran away towards the west. P. W. 3 Abdul Latif, P. W. 4 Ashraf Ali, P. W. 5 Meheruddin, P. W. 6 Afazuddin and others saw the occurrence. After the injury on Syed Yakub Ali was bandaged,' with a view to being taken to his house situated on the west of a nearby khal (canal) containing neck deep water, he wa3 shifted to its, eastern bank. Syed Yakub Ali's wife swam across the khal and came to its eastern bank and took Syed Yakub All's head on her lap. Syed Yakub Ali then opened his eyes for a moment and said that Zainul Abedin inflicted the injury on him. Immediately thereafter Syed Yak uh Ali breathed his last. The appellants were defended at the trial by two different lawyers. Both the appellants pleaded alibi. Appellant Zainul Abedin pleading that at the time of occurrence he was in his father-in-law's house and the other appellant pleading that on the date of occurrence he was far away in Dinajpur district with his another son named Maksud in village Balihara within P. S. Haripur. Appellant Zainul Abedin's further defence was that the incident involving the fatal injury on Syed Yakub All did not occur at the place suggested by the prosecution. On his behalf it was suggested to P. W. 1 Syed Shahidul Alam (son of the deceased) that appellant Mazharuddin used to till one Azharud--din's land situated on the east of the spot where the deceased expired, and that the occurrence took place on this land over a dispute in connection therewith between appellant Mazharuddin and the said Azharuddin. To some other witnesses again it was 'suggested on behalf of appellant Zainul Abedin that the occurrence took place on the land of one Wasimuddin containing chilly plants, as Syed Yakub Ali went to damage the same. On behalf of appellant Mazharuddin, however, it was put to the witnesses that on the date of occurrence the deceased and the witnesses encroached upon a portion of his plot by inserting pegs and thereby damaging also his paddy plants. The further case of both the appellants was that they were falsely implicated in the murder of Syed Yakub Ali by the said Azharuddin, a retired Sub-Inspector of Police. Altogether 14 witnesses were examined by the prosecution, of whom as many as 6 are eye- witnesses. They are P. W. 1 Syed Shahidul. Alam (son of the deceased), P. W. 2 Abdus Sattar, P. Wm 3 Abdul Latif, P. W. 4 Ashraf Ali, P. W. 5 Meheruddin and P. W. 6 Afazuddin. Of this batch of witnesses P. W.A Ashraf Ali is one of those who claimed to have inserted pegs between the two plots on the morning of the date of occurrence,, as also about one year before the occurrence. P. W. 7 Syed Gulam Rasul and P. W. 10 Ismail were two others who claimed to have, together with P. W. 4 and Rup Mallick, inserted the pegs on both the occasions. P. W. 7 also stated that at about 10 or 10-30 a.m. Upon hearing shouts and cries he reached the plot of the deceased and found Syed Yakub Ali injured and further that after the latter's injury was bandaged, together with others he carried the injured to the eastern bank of the khal where the latter's wife came swimming and the deceased told her that it was appellant Zainul Abedin who struck him. P. W. 9 is a witness to the seizure of
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alamats by the I. O., including blood-stained earth from the eastern bank of the khal, and P. W. 12 Hajera Khatoon is the widow who spoke of the dying statement. P. W. 11 Abdur Rashid and P. W. 13 Shah Fazlul Huq are doctors. P. W. 13 held the autopsy. We have already referred to his evidence describing the injury on the deceased. P. W. I1 stated that he examined P. W. 1 Syed Shahidul Alam and found an abrasion on his knee caused by a blunt weapon. The remaining two are Police Officers, P. W. g being the constable who identified the dead body to the doctor (P. W. 13) and P. W. 14 is the I. O. The defence also examined 4 witnesses and produced two post cards, both hearing date seals of post office of origin of the 31st May 1965, in support of appellant Mazharuddin's plea of alibi. No evidence was led in support of the other appellant's plea of alibi. It i, useful to note at this stage that there is no specific mention in the F. I. R. Either of the story of insertion of pegs demarcating the boundary between the plots of the deceased and appellant Mazharuddin about one year before the occurrence or of insertion of new pegs on the morning of the date of occurrence. But there is mention in the F. I. R. That occasionally there were village arbitrations and salishes over the boundary dispute between the parties, and that the appellants were disregarding their decisions. P. W. 1 Syed Shahidul Alam, son of the deceased, who lodged the F. I. R. Gave the prosecution case which we have set out above inter alia he stated of demarcation of the boundary between his father's and, appellant Mazharuddin's plots by insertion of pegs about one year before the occurrence and also of insertion of new pegs at the old site by P. W. 4 Ashraf Ali, P. W. 7 Syed Gulam Rasul and P.W. 10 Ismail, upon being called and informed by his father in the morning of the date of occurrence that the original pegs were not there. P. Ws. 4. a and 10 corroborated P. W. 1 in this regard. These 3 witnesses stated that one year before the occurrence, together with one Rup Mallick, they inserted three pegs two at the ends and one iii the middle demarcating the boundary between the said two plots and further that on being called and informed by the deceased oil the morning of the date of occurrence that the old pegs, were not there, they went upon the land and inserted three new pegs at the old site. P. W. 2 Abdus Sattar, by servant of a cousin of the deceased stated that on seeing the appellants pulling out apeg by means of a bamboo and a rope, he ran to the deceased and informed him of this. His further evidence is, as that of P. W. 1 Syed Shahidul Alam, that tile deceased accompanied by him and P. W. 1 came to the land and asked the appellants not to remove I lit: peg,, but the appellants did not pay any heed. He corroborated the evidence of P W 1 that appellant Mazharuddin who had a tree tapping dao in his hand made over the same to appellant Zainul Abedin ordering him to strike: Kopao' and that appellant Zainul Abedin then struck at the neck of the deceased as a result of which he fell down on the ground; and I'urtlici that when appel--lant Zainul Abedin aimed another blow at the deceased, P. W. 1 clasped Zainul Abedin who released the dao and ran away. This witness named the other eye- witnesses, P. W. 3 -Abdul Latij,' P. W. 4 Ashraf Ali, P. W. 5 Meheruddin and P. W. 6 Afazuddin. He also stated that after the injury was bandaged the deceased was carried towards his house and kept for some time on the eastern hank of the khal where P. W. 12 Hajera Khatoon came swimming and was told by the deceased, her husband, that appellant Zainul Abedin gave him the `kope'. P. W. 3 Abdul Latif, P. W. 4 Ashraf Ali, P. W. 5 Meheruddin and P. W. 6 Afazuddb, claimed to have seen the occurrence and gave the same story as given by P. Ws. I and 2, except that P. Ws. 4, 5 and 6 did not state-anything about the dying statement. It appears that they did not carry the deceased from the place of occurrence to his house, but went back to their own fields. P. W. 12 Hajera Khatoon stated that on hearing cries' from the east, she swam across the khal and came to its eastern bank. She saw P. W. 1 catching hold of his father. She placed his head on her lap. He opened his eyes and said that Zainul had struck him. He opened his mouth and yawned. She then put a few drops of water in his mouth. He then closed his eyes for good.
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The learned Advocate appearing in support of the appeal took us through the entire evidence. Not being able to point out discrepancies of any consequence in the statements of the several eye- witnesses, he contended that their evidence ought to be judged in the light of circumstances and also the defence evidence. In this connection the learned Advocate drew our attention to certain admissions in the evidence of the witnesses, namely, that appellant Mazharuddin was deceased Yakub Ali's full sister's husband, that. Appellant Zainul Abedin was a left hander and that the plot of the deceased and some other plots near it used to be submerged by tidal water. He further drew our attention to the evidence of the I. O. That he found blood only on the eastern bank of the khal some 500 cubits away from the spot where the prosecution alleged that the occurrence took place, and that from there he 'seized only a bamboo and a rope. The learned Advocate also drew our attention to the statement of the I. O. That Azharuddin and Aftab, two retired Sub-Inspectors of Police, were present at the investigation. The learned Advocate further drew our attention to the absence in the evidence of the informant P. W. 1 as also in the F. I. R, of the story of the deceased having told his wife, P. W. 12 Hajera Khatoon, that it was appellant Zainul Abedin who struck the blow on him, and further that the I. O. Admitted that he did not separately record the statement of P. W. 12 Hajera Khatoon. In view of the absence in the F. I. R. Of the story of the deceased having told P. W. 12 Hajera Khatoon that appellant Zainul Abedin inflicted the injury on him, the learned Advocate contended that P. W 12 Hajera Khatoon story as to the dying declaration should be discarded. The learned Advocate also contended that it was Highly improbable that appellant Zainul Ahedin --ould cause the death of Syed Yakub Ali who, according to P. W. 1 Syed Shahidul Alam himself, was his father's sister's husband and that the injury on the neck of the deceased could be caused by a left hander as Zainal. Abedin admittedly is. He further contended that the admission of the witnesses that P. W. 1 having succeeded in snatching away the dao from the hand of the assailant and yet allowed the assailant to go unhurt clearly demonstrated the falsity of the prosecution case. Since no blood- stained earth was found by the I. O. From the place of occurrence alleged by the prosecution from where only a bamboo and a rope was seized and in view of seizure of blood--stained earth only from the eastern bank of the khal, the learned Advocate contended that the occurrence must have taken place near the khal under circumstances different from those alleged by the prosecution. It was also contended by the learned Advocate for the appellants that the fact that the plots concerned usually got submerged by tidal water belied the prosecution claim that appellant Mazharuddin had grown paddy oil his plot, and that this false claim threw doubt on the entire prosecution case which, the learned Advocate argued, was a concoction at the instance of the two retired Sub-Inspectors of Police who attended at the investigation. We have given our anxious consideration to the above criticisms levelled against prosecution evidence. We find, however, no substance in them. It is true the I. O. Found no blood at the place of occurrence alleged by the prosecution and also that he seized only a bamboo and a rope from there. The I. O., however, stated that he found marks of violence there and also the pegs and further that there was 2 inches of water on the eastern plot i. e., the plot of the deceased, although ebb- tide had commenced. This explains absence of blood when the I. O. Came to the plot. The evidence is that the appellants were pulling out the pegs by means of the bamboo and the rope seized by I. O.. There is nothing in the evidence upon which it can be found that the two retired Sub-Inspectors of Police were in the company of the I. O. Except for helping in the investigation. As the witnesses stated of the standing paddy plants on the western plot belonging to appellant Mazharuddin, the I. O. Also stated that the western plot was a "cultivated land" and further that there the paddy was newly sown and that only some plants came out. We have referred above to the medical evidence. We are unable to agree that the injury sustained by tile deceased at the neck could not be caused by a left hander as appellant Zainul Abedin is, nor do we find any improbability an one causing the
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death of one's near relation in circumstances alleged in this case. The dao was said to have been snatched away from the assailant, and yet the assailant escaped. There is no improbability also, in this. We find no reason accordingly to disbelieve the eye-witnesses, none of whom has been shown to have any personal enmity with any of the two appellants. It is true that the story as to the dying statement made to the widow, 1'. W. 12, does not appear in the F. 1. Ra but there is nothing to disbelieve the widow. In any event, the; eye--witnesses are there who saw appellant Mazharuddin handing over the tree tapping dao to the other appellant with a direction to strike and the latter striking the fatal blow on the neck of the deceased. As against this evidence, there is no doubt, the evidence of 4 defence witnesses. They are D. W. 1 Abdul Gafur, D. W. 2 Motaharuddin, D. W. 3 Haji Abdul Hamid and D. W. 4 Fazlul Huq who were examined in support of appellant Mazharuddin's plea of alibi which if accepted, would throw doubt on the entire prosecution case, as claimed by the learned Advocate for the appellants. Their evidence, therefore, calls for a careful scrutiny. D. W. 1 Abdul Gafur stated that he was acting as Post Master of Kathal Dangi Experimental Post Office since one month and a half before he was deposing in Court on 22-12-65 i. e., long after the occurrence which took place on 31-5-65. His evidence is that Balihara is a village under the said post office. On being shown two post cards filed by the defence hearing seals of post office of origin dated 31-5-65, he stated that these seals were of his post office. In cross-examination he stated that the said postal date seals were stamped on the post cards by one Habibur Rahman, the postman, and further that this postman "changes the dates of the postal mark seal". He also stated that it was Habibur Rahman who "knows when these cards were stamped with the date seals". This witness admitted that he knew the accused and also Maksud who was standing inside the Court room. He also admitted that Maksud lived at a distance of 3 miles from his house. This Maksud is one of the sons of appellant Mazharuddin. The witnesses denied the prosecution suggestion that the postal peon Habibur Rahman was Maksud's wife's brother. D. W. 2 Motaharuddin is a full brother of appellant Mazharuddin. D. W. 2 stated that on the date of occurrence appellant Mazharuddin was with his son Maksud in Dinajpur district. He further stated that the said two post cards were written and signed by appellant Mazharuddin. At this, the one addressed to him was marked Exh. B and the other was marked Exh. B(l). 4t may be mentioned here that Exhs. B and B(1) respectively bear date seals of post offices of delivery dated the 5th and the 4th June 1965. D. W. 2 stated in cross-examination that he received the post card addressed to him on the 5th or 6th June 1965 and that on the following day he saw the other post card, Exh. B(1). With Haji Abdul Hamid (D. W. 3). He also stated that he made over Exh. B to the defence lawyer Mr. Sushil Sen in the Committing Court but the latter did not file it in that Court. He admitted that one Azharuddin was his sister's husband but denied the prosecution suggestion that the Post Master of his locality was Azharuddin's cousin and that it was with his assistance that the post cards were date-stamped. D. W. 3 Haji Abdul Hamid, the addressee of the other post card, stated that he duly received the said other post card. In cross-examination isstated that he received this post card from his employee Ranjit who told him that it was from appellant Mazharuddin. His further evidence is that 5 or 6 days after he received the post card he made the same over to D. W. 2 Mazharuddin who took it away, and also that he did not inform the police oar the Union Council Chairman about this post card, although he knew about the occurrence. He admitted that never before this appellant Mazharuddan wrote any letter to him. D. W. 4 Fazlul Huq's evidence is that he hails from village Haripur within P. S. Haripur in Dinajpur district and that appel--lant Mazharuddin's son Maksud lives in village Balihara where the witnesses has lands. His further evidence is that he knew both Maksud and appellant Mazharuddin, and that on the 16th Jaistha, 1372 B. S., i. e. One day before the, occurrence he saw appellant Mazharuddin at the house of Maksud. In cross- examination he stated that he used to .Go to Balihara for setting his lands in barges and visit Maksud's house. He stated that he did not enquire of appellant Mazharuddin on the 16th Jaistha as
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to when the latter came, since the latter was ill and lay coughing. He stated that he did not know if Mazharddin was medically treated or that the latter was accused in a murder case. He further stated that appellant Mazharuddin left Balihara 15 or 20 days after he met the former on the 16th Jaistha. He stated further that he reached Barisal one day before he was deposing in Court, and that he met D. W. 2 Motahar in Court but had no discussion with him. He denied the suggestion that he was falsely supporting the defence case at the instance of Maksud, son of appellant Mazharuddin. He, however, admitted that Maksud had lands in village Balihara where he also owned lands. As already noticed, D. W. 1 admitted that Maksud and also the accused were known to him. In the absence of any documentary evidence, the learned Additional Sessions Judge could not believe the statement of D. W. I that he was in-charge of Kathal Dangi Experimental Post Office in Dinajpur district which serves village Balihara. Assuming that this witness was put in charge of the said post office 1 z months before he was deposing in Court, he could have nothing to do with the said Post Office on 31-5-65. On his own admission, letters were stamped with the date seal of the said Post Office by Habibur Rahman, the postman, who used to change the date marks of the seal. This Habibur Rahman, who according to the prosecution was Maksud's wife's brother, was not brought on the witness prix, though D. W. 1 stated that it was Habibur Rahman who knew when the post cards, Exhs. B and B(1) were tamped with the date seal of the post office. The evidence of D. W. 1 is thus hardly of any assistance. It has earlier been noticed that Exh. B w ich is addressed to D. W. 2 Motaharuddin bears the date seal of the post office of delivery of the 5th June 1965, and Exh. B (1) addressed to D. W. 3 Haji Abdul Hamid of the 4th June 1965. According to D. W. 2 he received Exh. B on the 5th or 6th June 1965 and that on the following day he merely saw Exh. B (1) with D. W. 3. But D. W. 3 stated that 5 or 6 days after he received Exh. B (1) he made it over to D. W. 2 who took it away. Then again, D. W. 3 stated that he received Exh. B (1) four or five days after the murder. The occurrence took place on the 31st May 1965. D. W. 3 thus claimed to have received Exh. B(1) either on the 4th or 5th June and the same, according to him, was taken away by D. W 2 on the 11th or 12th June 1965. These are vital discrepancies in the evidence of P. Ws. 2 and 3 who came to prove receipt of letters posted at Katchal Dengi Experimental Post Office in Dinajpur district on 31-5-65 i. e. On the very date of occurrence. On the admission of D. W. 3 appellant Mazharuddlra never wrote any letter to him before this, and that it was his employee Ranjit who brought Exh. B (1) to him and told him that it was from appellant Mazhar--uddin whose house was situated at a distance of 2 or 21 miles from the witnesses' house. This Ranjit was not examined. Even in his examination-in-chief D. W. 3 stated that he did not know the handwriting of appellant Mazharuddin. We are unable to place any reliance, therefore, on the evidence of D. Ws. 2 and 3. These post cards were not produced in the committing Court, and it was for the first time that they were produced in the Court of Session. For all this, we are in a agreement with the, learned Additional Sessions Judge that the postal date stamps on Exhs. B and B (1) are nothing but fabrications. The last witness examined by the defence, namely, D. W. 4, on his, own admission, is familiar with Maksud and appellant Mazharudditt. Rath Maklud and this witness own lands in Balihara where Maksud lives. According to this witness, appellant Mazharuddin was in Balihara- on the 16th Jaistha 1372 B. S., i. e. One day before the occurrence which took place at village Sujabad in Barisal district. The reason for his going to village Balihara was given as settlement of his land in harga. According to this witness, since appellant Mazharuddin was ill he did not enquire on the 16th Jaistha as to when the former came to Balihara. He did not also know if the latter was medically treated. He deposed that appellant Mazharuddin left Balihara 15 or 20 days thereafter. `It is difficult to follow how D. W. 4, who was a man of a different village, could say that appellant Mazharuddin left. Balihara 15 or 20 days after he met that appellant on the 16th..Taistha. The witness did not claim to have seen appellant Mazharuddin leaving Balihara. There is nothing to show also that he used to come to, Balihara
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