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Petitioner: ABDUR RAHMAN VS Respondent: THE STATE
P L D 1971 Dacca 79
P L D 1971 Dacca 79
Before Abdul Hakim and Ahsanuddin Choudhury, JJ
ABDUR RAHMAN AND 4 OTHERS‑‑Appellants
versus
THE STATE‑Respondent
Criminal Appeal No. 118 of 1966, decided on 24th March 1970.
(a) Criminal Procedure Code (V of 1898),
S.288- Admissibility of evidence‑Murder‑trial‑Eye‑witness bent upon helping accused giving two different versions one in committing Court and other at trial stage‑Statement consistent with other evidence on record to be preferred‑Entire evidence cannot be outright rejected merely due to somersault given by witness in two Courts‑Statement of witness given in committing Court, under S. 288, held, could be treated a substantive piece of evidence.
(b) Witness
‑Evidence‑Discrepancies on minor points‑‑Not fatal‑Evidence of a witness cannot be disbelieved merely due to some minor contradictions.
(c) Evidence Act (I of 1872),
S. 32‑Dying declaration Deceased while in full senses making three statements within a short time after occurrence implicating all accused persons without getting any opportunity to be prompted by anybody‑Last of such statements recorded by doctor and witnessed by two male nurses of hospital ‑Such statement, held, a bona fide statement in circum stances.
(d) Evidence Act (I of 1872),
S. 32‑Dying declaration‑Admis sibility ‑Dying declaration admissible even if "orally" made Declaration once admitted under S. 32 stands on same footing as any other evidence as to its value and credibility‑Tests for deter mining genuineness of dying statement.
While dealing with a question of dying declaration the Court has to judge it from several stand‑points. Some of the main tests for determining the genuineness of a dying declaration are (l) whether the maker had the physical capacity to make the dying statement ; (2) whether the maker had opportunity to recognise the assailants (3) whether there were chances of mistake on the part of the dying man in identifying and naming his assailants ; (4) whether it was free from prompting from any outside quarter and was not inconsistent with the other evidence and circumstances of the case ; (5) whether the witnesses who heard the deceased making the statement heard him correctly and whether their evidence can be relied on. If a dying declaration stands the normal tests for judging its veracity, it becomes a wholly reliable piece of evidence and it can safely be accepted as a genuine and true statement of the maker. If the dying declaration is found to be genuine and true, it can by itself form a satisfactory basis for conviction. A dying declaration is a piece of evidence which is not tested in cross -examination. The maker of the statement not being subject to cross‑examination, the manner in which he receives a question and replies it, the manner in which he faces the cross‑examina tion and meets the objections affecting his veracity and such other factors by which the human judgment is assisted, are 'all absent. It is, therefore, in consonance that the Court shall carefully scrutinise all the physical circumstances as they appear from the evidence. to reach a conclusion with a degree of certainty that the account given by the deceased of the manner in which he met his death is worthy of belief. Hence in order to be the sole basis for conviction on dying declaration alone, utmost care must be taken by the Court in considering the surrounding circumstances and compare them with the statements in the dying declaration for safe dispensation of justice. To find out the truth or falsity of a dying declaration the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can safely be deduced in the case. In the last analysis, as stated in some of the eminent judicial decisions, "the grain has to be sifted from the chaff" in each case, in the light of its particular circumstances.
Abdul Razik v. The State P L D 1965 S C 151 and Tawaib Khan v. The State P L D 1970 S C 13 ref.
A. T. M. Afzal for Appellants.
Md. Mudabbir Husain for the State.
Dates of hearing : 17th, 18th and 20th March 1970.
JUDGMENT
ABDUL HAKIM, J.‑This appeal is directed against an order of conviction made by Mr. S. K. Roy Sardar, Additional Sessions Judge, Sylhet sentencing the five accused appellants‑under section 302/34, P. P. C. to transportation for life each.
The prosecution case, in short, is that shortly after evening on Tuesday, the 21st day of Poush, 1371 B. S. (corresponding to 5‑1‑65) while deceased Abdur Rahman member was returning home along with his servant P. W. 1 Ainullah escorted by accused Idris after having an Iftar meal on invitation at the house of that accused and reached a place near a graveyard on a public road in village Badertek, P. S. Sunamgonj, District Sylhet, the accused‑appellants Abdur Rahman, Syed Ali, Dud Mia, Harmuj Ali and Idris Ali attacked him all of a sudden and assaulted him with dangerous weapons. On the morning of that day accused Idris Ali invited the deceased Abdur Rahman to a feast following Iftar at his house. On the very said date at about 4‑30 p.m. Idris Ali came to the house of deceased Abur Rahman and requested him to go to his house. In the first instance, deceased Abdur Rahman hesitated to go to the house of accused Idris but due to insistence of Idris Ali and assurance by him that he would escort him back to his house, deceased Abdur Rahman took Ainullah in his company and went to the house of accused Idris Ali. Taking meal immediately after the Iftar, deceased Abdur Rahman started for his house in the company of Ainullah and accused Idris. As he reached the road on the south of the graveyard of his village accused Idris Ali said "I have brought the shala after feeding him on invitation. Catch hold of him". Immediately accused persons namely, Abdur Rahman, Syed Ali, Dud Mia, Harmuj Ali and some others had encircled him with deadly weapons. Accused Syed Ali gave him a knife blow. Accused Rahman and Dud Mia struck him with daos and accused Harmuj and one Abdul Ahad (since discharged) inflicted blows with khanta and roller respectively. The victim Abdur Rahman and P. W. 1 Ainulla raised hue and cries and on their alarm. P. W. 2 Shipu, P. W. 6 Abdul Hamid, P. W. 7 Abdur Rashid, P. W. 11 Abu Taber, P. W. 17 Abdul Ali and others came to the spot, saw the occurrence and heard about it. P. W. 2 Shifu focussed his torch light and recognised the accused P. W. 1 also recognised the accused persons. P. W. 6 also saw the accused persons running away and recognised three of them. The injured named the five accused to the above P. Ws. on the spot. He was then brought to his house by the local witnesses and thereafter taken to the Civil Hospital, Sunamgonj where he ultimately succumbed to his injuries at about azan time (dawn) following the occurrence. The injured Abdur Rahman mentioned the names of his assailants to P. Ws. 3, 8 and 9 at his house. He also made a dying statement in the Sunamgonj Hospital, andit was recorded by P. W. 4 Doctor Khalilur Rahman, the Sub‑Divisional Medical Officer, Sunamgonj. His nephew P. W. 3 Abdul Wahed lodged ejahar with the local police on the above allegations. The Police seized the alamats, investigated into the case and submitted charge‑sheet against the accused persons under section 302/34, P. P. C. After the preliminary enquiry held by a competent Magistrate, the five accused‑appellants were committed to the Court of Sessions to face trial on the above charge.
The plea of the accused was one of innocence. They asserted that they had been falsely implicated in the case out of grudge and enmity with the informant.
Twenty witnesses for the prosecution and none for the defence were examined in the case. Some documents were also produced before the Court. The learned Additional Sessions Judge on appraisal of the evidence and materials on record, convicted and sentenced the accused‑appellants under section 302/34, P. P. C. as mentioned above. Being aggrieved thereby they have preferred the present appeal before this Court.
Mr. A. T. M. Afzal, learned Advocate for the appellants has taken us through the judgment and depositions. He has argued that the alleged eye‑witnesses, P. Ws. 1 and 2 are not dependable and they cannot be relied upon and the learned Judge has rightly disbelieved them on the question of recognition. The possibility of recognition of the accused by the deceased is remote and the dying statement made by him is based more on suspicion than on actual recognition. The recorded dying statement Exh. 2 is a fabricated document and it has no evidentiary value.
P. W. 1 Ainullah alias Ain Ali is a servant, P. W. 2 Sifu is a distant relation, P. W. 3 Abdul Wahab is a nephew, P. W. 8 Rupban is the wife and P. W. 9 Jobeda is the niece of the deceased. The other local witnesses are not in any way connected with the victim Abdur Rahman member.
It appears from the records that P. W. 9 Jobeda, niece of the deceased was first married to P. W. 1 Ainulla about four years ago. Out of that wedlock Jobeda got a male child about li years old at the time of occurrence. Jobeda's father is alive but he is blind. Deceased member used to look after the affairs of his brother. On the wake of his second marriage, Ainulla divorced Jobeda some time back and she was married to accused Abdur Rahman about 11 months before the occurrence. She was given in marriage on condition that the child would be taken with her. Jobeda along with her infant child went to the house of accused Abdur Rahman but within a week her child was returned. About 3/4 days before the occurrence Jobeda out of her motherly affection as well as being unable to continue with her breasts swolleh with too much milk, she fled away from the house of accused Abdur Rahman and came to the house of her parents. Both Jobeda and P. W. 8 Rupban said that in the early morning on the date of occurrence there was a salishat the house of the deceased over the return of Jobeda to the domain of accused Abdur Rahman. The deceased Abdur Rahman member insisted to take the child with Jobeda but the accused did not agree that the child should accompany his mother. Accused Abdur Rahman and his relations were thus annoyed over the matter.
Accused‑appellants Nos. 1 and 2 Abdur Rahman and Syed Ali are full brothers. Appellant No. 3 Dud Mia is ukil sasur (father‑in‑law by matrimonial agency) of appellant No. 1. Appellant No. 4 Idris Ali is the sister's husband of appellants Nos 1 and 2. Appellant No. 5 Harmuj Ali is cousin of appellants Nos. 1 and 2.
All the accused‑appellants come from the same village Badertek. The deceased and the accused were co‑villagers. Accused No. 1 Abdur Rahman is the husband of the niece of the deceased. Accused No. 4 Idris Ali is the ukil jamai (son‑in‑law by matrimonial agency) of the victim Abdur Rahman.
The fact that Abdur Rahman member of village Badertek was attacked and injured by the miscreants on 5‑1‑65 at a place near the graveyard on the public road of the said village shortly after the evening, say in between 7 and 7‑30 p.m. is not disputed. The fact that the injured Abdur Rahman member died as a result of the said injuries is not also challenged. The evidence of the local witnesses, namely, P. Ws. 1, 2, 3, 6, 7, 8 and 9 coupled with the evidence of the Doctor P. W. 5 proved beyond reasonable doubt that Abdur Rahman member is dead and died as a result of the injuries received at a place and time as alleged by the prosecution. P. W. 5 Dr. Shafiul Islam who held post‑mortem examination on the dead body of Abdur Rahman member, found several injuries on his person and opined that the victim died due to shock and haemorrhage as a result of the injuries which were ante‑mortem and homicidal in nature.
The question for consideration now is whether the occurrence took place in the manner as alleged by the prosecution and whether the accused‑appellants were responsible for the murder of deceased Abdur Rahman member.
It appears from the evidence of P. Ws. 8 and 9 that at the late morning of 21st Poush, 1371 B. S. (5‑1‑65) accused ldris Ali who was ukil jamai of deceased Abdur Rahman requested the latter to take feast after Iftar at his house. Idris Ali also came personally to the house of the deceased at about, 4‑30 p.m. to take him to his house. Abdur Rahman member was at first unwilling to go but due to much pressure and assurance by Idris that he would escort him back to his house, the deceased accepted the invitation of accused Idris and went to his house at Iftar time in the company of P. W. 1 Ainullah.
P. W. 10 Huron Ali has deposed to the effect that he took deceased Abdur Rahman member, P. W. 1 Ainullah and accused Idris in his boat and got them crossed the khal near his house. On his query they said that they were going to take feast in the house of Idris Ali on his invitation. P. W. 13 Kafiluddin has stated that he saw deceased Abdur Rahman member and P. W. 1 Ainullah (Ain Ali) and also the five accused‑appellants at the house of accused Idris where he also took his Iftar. These two witnesses are absolutely independent. The above evidence shows that deceased Abdur Rahman in the company of Ainullah went to the house of accused Idris that evening to take Iftar and feast and they actually took Iftar in that house with the five accused appellants.
The evidence against the accused‑appellants are two‑fold. The prosecution has tried to prove its case by adducing direct evidence through P. Ws. 1 and 2 the alleged eye‑witnesses and also by proving the dying declaration of the deceased. Let us first see how far the prosecution has succeeded to prove its case by direct evidence through the mouths of P. Ws. 1 and 2.
P. W. 1 Ainullah (Ain Ali) has stated in his deposition that on 21st Poush, 1371 B. S. (corresponding to 5‑1‑65) he was in service in the house of deceased Abdur Rahman member and on that day after asar prayer time he found accused Idris at the house of his master. On the persistent request of accused Idris member Abdur Rahman in the company of himself started for the house of accused Idris to attend invitation of eating. The house of accused Idris is about one‑quarter mile north of the house of the deceased member. They crossed the intervening khal in the boat of P. W. 10 Nuron Ali. They reached the house of accused Idris and took Iftar and feast there. Accused Idris, Syed, Harmuj and Dud Mia took their meals with them. After the feast accused Syed, Dud Mia and Harmuj went away. He and Abdur Rahman member escorted by accused Idris started for their house. When they came near the gorsthan (graveyard) Idris said "Brother‑in‑law has been fed. Catch hold of him". Simultaneously 3/4 persons surrounded Abdur Rahman member. They are accused Idris, Harmuj Syed, Dud Mia and others. They assaulted the member with knife, dao, khanta etc. He and the member raised alarm and P. W. 2 Shifu focussed his three‑celled torch light and came to the spot at once. The witness recognised the four accused ldris, Syed, Harmuj and Dud Mia in the flash of his torch‑light. The other P. Ws. namely, Abdul Hamid (P. W. 6), Abdur Rashid (P. W. 7), Abu Taher (P. W. 11), Abdul Ali (P. W. 17) and others came, saw the occurrence and heard about it. The accused then ran away. He went near the member who was lying injured. He found one blood‑stained knife lying near the member. The member stated the names of accused Syed, Harmuj, Dud Mia, Idris and Abdur Rahman as his assailants. Shifu also told that he recognised accused Idris, Syed, Harmuj, Dud Mia and Abdur Rahman in the flash of his torch‑light. The member was then taken to his house and thereafter to the Sunamgonj Hospital where he made a dying statement and expired at about azan time next morning.
The prosecution drew the attention of the witness, to his earlier statement in the committing Court and he admitted that he stated before the Magistrate that accused Abdur Rahman also took his meal along with other accused in the house of accused Idris and he saw accused Abdur Rahman also in assaulting the deceased. The prosecution, in the circumstances, put in the committing Court's statement of the witness under section 288, Cr. P. C. It appears from his Committing Court's statement which is also substantive evidence that he mentioned accused Abdur Rahman very well there as one of the assailants of deceased Abdur Rahman member.
The defence has raised several criticism against this witness. It has been contended that P. W. 1 Ainullah being the first husband of P. W. 9 Jobeda and a candidate for remarrying her, he is likely to be hostile to accused Abdur Rahman and as such his evidence cannot be safely accepted. This grievance, in our opinion, does not stand scrutiny. The evidence, as indicated above, showed that the witness was bent upon to help accused Abdur Rahman in the trial Court. He mentioned accused Abdur Rahman in the committing Court but he omitted to name him in the Sessions Court. That being the position it cannot be said that the witness was hostile to accused Abdur Rahman and falsely deposed against him.
The learned Advocate for the accused‑appellants has pointed out that P. W. 1 Ainullah contradicted the investigating officer P. W. 18 on a vital point, namely, pulling out of the knife from the body of the deceased and also contradicted his committing Court's statement with regard to the use of a green paper by the doctor P. W. 4. The contradictions referred to above do not help the defence in any manner. A blood‑stained knife having been seized by the police. the inconsistency as to whether it was lying near the member or pulled out from the abdomen of the member is not very material and it does not falsify the presence of P. W. 1 on the spot nor affect the prosecution case in any way. In view of the positive evidence on record, there cannot be any manner of doubt that this witness P. W. 1 accompanied the deceased while going to and returning from the house of accused Idris and in the facts and circumstances of the case there cannot be any suspicion as to his own complicity in the crime. Regarding the use of green paper by the Doctor P. W. 4, there is practically no contradiction and the inconsistency, if any, is explainable. This story of green paper or white paper used by the doctor will be considered separately in due course. Discrepancies on minor points are not fatal and the evidence of a witness cannot be disbelieved merely due to some minor contradictions.
It has next been contended that P. W. 1 suppressed certain material facts before the Court. He told P. Ws. 2 and 18 that three persons Hashem, Matleb and Mannaf caught hold of him during the occurrence but he is silent in the Court as to his catch by those persons. He submits that the witness who suppressed material facts in the Court and gave somersault in respect of accused Abdur Ragman is a basically dishonest witness and his evidence cannot be safely accepted. The omission referred to above is on a minor point. the prosecution does not put forward any case that P. W. 1 was also attacked and assaulted. No such case having been made out, it is not necessary to introduce the story of catch by Hashem, Matleb and Mannaf in the present case. The omission is not material and it does not affect the veracity of the witness.
It is true that the witness made one statement in the committing Court and another statement in the trial Court so far as accused Abdur Rahman is concerned. He named accused Abdur Rahman in the committing Court and that receive corroboration from the other evidence on record. It is an accepted principle that if a witness gives two different versions in two Courts and if the statement in the Committing Court is put in before the trial Court in accordance with law then the statement which is consistent with the other evidence on record may be preferred. If the difficulty created by the volte‑face of a witness can be resolved by referring to the other evidence in the case, his entire evidence need not be outright rejected merely due to the somersault given by him in two Courts. The unusual conduct of the witnesses no doubt, makes him shaky but there is no reason to discard his evidence altogether on that count. His evidence may be considered if corroboration comes from other independent sources. If no corroboration comes from any other source, a conviction on the evidence of such witnesses will be unsafe. Let us, therefore, see if there is any other evidence on record to corroborate him.
P. W. 2 Shifu has stated in his deposition that on 21st Poush, 1371 B. S. (5‑1‑65) at about 7 or 7‑30 p.m. he had been to the bari of P. W. 7 Abdur Rashid to buy seedlings. While he was returning home and reached near the graveyard he heard cries of men and advanced and then focussed his three‑celled torch light. He saw accused Syed, Dud Mia, Harmuj, Rahman, Idris Ali assaulting member Abdur Rahman with dao, knife and khanta. There were other men whom he could not recognise. He found P. W. 1 Ainullah at the place of occurrence. He cried and the accused persons fled away. Other people came on hearing cries and he went near the member. A knife was recov ered from near the member. The deceased Abdur Rahman mentioned the names of accused Syed, Dud Mia, Harmuj, Idris and Rahman as his assailants. Ain Ali told that he recognised the five accused Syed, Dud Mia, Harmuj, Idris and Rahman. He also named the five accused persons whom he recognised.
The learned Advocate for the accused‑appellants has only pointed out that he is a chance witness and the husband of a distant chachata sister of the informant. The relationship suggested is very remote. His bari is just 60/70 cubits south east of the place of occurrence. He is a natural witness. He went to the house of P. W. Abdur Rashid for purchase of seedlings. P. W. 7 Abdur Rashid admitted that P. W. 2 Shifu went to his house that evening for purchase of seedlings. In the circumstances, there is no reason to think that he is a mere chance witness.
The witness has been cross‑examined at length but nothing tangible has elicited against him. No enmity or bias has even suggested to the witness. The evidence of the witness is consistent all through and suffers from no defect. The investigating officer examined him and seized the torch‑light just on the following day i.e. 6‑1‑65. There is nothing on record to impeach the veracity of the witness. We find no reason to disbelieve him. The story narrated by P. W. 1 thus receives support from the evidence of P. W. 2 on material particulars.
In this connection, we have got another important piece of evidence on record i.e. the evidence of P. W. 6. Abdul Hamid has stated that on 21st Poush, 1371 B. S. after evening while he was returning from Matbar‑kandi Bazar and reached near the gorsthan (graveyard) of Badertek he heard cries of Shifu and saw 10/12 persons running away. He recognised accused Syed, Dud Mia, Idris amongst them. He recognised them in the light of torch of P. W. 2 while they were running towards north and came face to face of the witness at a distance of 20/25 cubits north of the member. He went near the member Abdur Rahman who was lying injured. The deceased said that accused Syed, Dud Mia, Rahman, Idris and Harmuj assaulted him. So also P. W. 1 Ainullah and P. W. 2 Shifu said that accused Dud Mia, Syed, Idris, Rahman and Harmuj assaulted the member and fled away. He saw the torch‑light in the hand of P. W. 2 Shifu and also; saw the blood‑stained knife near the member. This witness is also absolutely independent and disinterested. Discrepancy pointed out in his evidence with reference to the evidence of the investigating officer is very negligible. No enmity or bias has even been suggested to him. His evidence is straightforward and we find no reason to disbelieve his evidence. He has also supported the story narrated by P. Ws. 1 and 2 quite substantially.
P. W. 7 Abdur Rashid who came to the spot on hearing the alarm and heard about the occurrence from P. Ws. 1 and 2 has corroborated them on material particulars. Relationship suggested to him has been stoutly denied by the witness. There is no reason to disbelieve him. Thus the evidence of P. Ws. 1 and 2 being corroborative to each other and their evidence having received support from P. Ws. 6 and 7 and P. Ws. 2, 6 and 7 having found to be absolutely independent, it seems, that the learned Sessions Judge wrongly disbelieved P. Ws. 1 and 2 on the question of recognition.
The investigating officer, P. W. 18 seized blood‑stained earth from the place of occurrence. A blood‑stained knife recovered from the spot was also seized by him. The Doctor. P. W. 5 opined that the injuries might be caused by knife, daos, khanta etc. Having regard to the time and place of occurrence and the evidence as discussed above, we are of the view that the…
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