P L D 1969 Dacca 189 (PLP)

C. A. C. and Registrar, Surgical Unit, M. M. C. H. Dillp Kr. Roy 6‑1‑67 Sr. Staff Nurse M. M. C. H." The dying declaration (Exh. 2) has been attested by the doctor P. W. 7 and the Male Staff Nurse P. W.

6. Both these witnesses have stated that the dying declaration was made in their presence. To none of these two witnesses, there is the slightest suggestion of the existence of any ill‑will or any cause for the 'lame between him and anyone of the condemned‑prisoners. Both the witnesses are highly respectable persons of medical profession and we have no hesitation in accepting their statements. Even to the A. S. 1 of Police P. W. 18 no suggestion has been made as to why he should create a false dying declaration with a view to implicate the two condemned‑prisoners in a murder case. It has, however, been strenuously contended on behalf of the two condemned‑prisoners that having regard the number and nature of injuries on the person of the injured Dafadar it was well‑nigh physically impossible for the injured Dafadar to make any statement, far less such a long and detailed statement as contained in Exh.

2. It is necessary at this stage to quote in extenso the evidence of P. W. 5 Dr. M. A. Gani, a teacher, compounder class, Lytton Medical School, Mymensingh who held the autopsy on the dead body on 7‑1‑67 at 3 p. m. The doctor after having given the age of the deceased Dafadar as about 50 years has stated as follows about the description of the subject and the injuries found on it: ‑ "Build Average, Nutrition Fair R. M. present. Absence of both hands. "(1) One incised wound 3' x '' x scalp deep over the left parietal bone. (2) One incised wound 1" x " x scalp deep over the left parietal bone. (3) One incised wound 5" x 1" x bone cut over the right parietal. (4) One incised wound 1 " x " x scalp deep over the occipital bone. (5) One stitched up wound 4' length over the cheek across the nose. (6) One stitched up wound 4" in length over the left deltoid muscle. (7) One incised wound 1 " x 1" x muscle deep behind the left shoulder joint. (8) Two stitched up wounds each 2 " in length at the lower part of each forearm with complete amputation of both hands. (9) Nine incised wounds each 2" x " x muscle deep behind the neck‑chest and abdomen. (10) One stitched up wound 2" in length at the lower part of left leg, (11) One stitched up wound 4" in length behind the right forearm. (12) 3 stitched up wounds each 1" in length in front of right arm and chest. (13) One stitched up stab wound 2" in length in the right lumber region of the abdomen. On dissection on opening the injury No. 13 the peritoneum, mescentary, transverse colon and liver were found perforated. One 1 lb. fluid blood was found in the abdominal cavity. Injury No. 5.‑Both facial arteris, vomer and ethomid bones were found cut. Injuries Nos. 1 to 4.‑The scalp was found congested. Both parietal bones, occipital bone, durameter, parietal lobe of brain in the right side, were found cut. Extradural and subdural haemorrhage found. Injury Nos. 10 to 12.‑‑The margins of the wound were found clean cut. The soft‑tissues were congested. Injury No. 8.‑Both hands were amputed. All other organs were found healthy but pale. Stomach contained 2 lbs. filious fluid. Death, in my opinion, was due to shock and haemorrhage resulting from the above‑noted multiple injuries which were ante‑mortem and homicidal in nature. Incised wounds may be caused by sharp‑cutting weapons like dagger, 'dao', 'ramdao'. Stabbed wound may be caused by dagger and 'dao'. The injuries mentioned above are sufficient in ordinary course of nature to cause death. Cross‑examination.‑if an injury is caused by a dagger it must be stab penetrating. When both parietal bones were cut as the brocas area lies within occipital lobe of the brain, the deceased will not be able to make any statement. Left side of the lobe of brain was not cut. The deceased had the capacity to speak but not very clearly. He may or may not be uncons cious. Left parietal bone was cut but parietal lobe of the brain was not cut. Speech centre on the left side of the brain was intact. Cross‑examination.‑I am a licentiate of East Bengal State Medical Faculty. Post‑mortem report does not show that left parietal lobe of the brain was not cut." It is evident from the evidence of the Doctor P. W. 5 that the left side of the lobe of the brain was not cut and the deceased had the capacity to speak although not very clearly. The doctor has also stated that the speech centre on the left side of the brain was intact. P. W. 16 Dr. R. U. Chowdhury, an M. B. B., S. has furnished corroboration on this point when he stated that he had admitted the said Dafadar, who was not unconscious, into the hospital on 6‑1‑67 at 7‑10 p. m., and that the Dafadar himself spoke out his name and address. Tile witness has stated that bone‑cutting injury may not affect the speech centre The medical evidence on this point is further corroborated by several other witnesses. P. Ws, 2, 3, 13, 14 and 19 have categorically stated that the injured Dafadar spoke. P. Ws. 13 and 19 spoke to the Dafadar and heard from him the names of his assailants while the remaining three witnesses heard the Dafadar spoke out the names of his assailants. At the hospital both P. W. 16 Dr. R. U. Chowdhury and P.W. 1 Prafulla Chandra Sarkar heard the Dafadar speak. P. W. 18 Dhinrendra Lai Talukdar, Assistant Sub‑Inspector of Police recorded the dying declaration Exh. 2 in the words of the Dafadar in the presence of P. Ws. 6 and 7, the male nurse and the Sub‑Divisional Medical Officer respectively. P. W. 6 Dilip Kumar Roy has added that Harendra Chandra Sarker had the capacity to speak. We, therefore, find that there is consistent evidence that the injured Dafadar not only could speak but that he did speak. Apparently the only discordant note has been struck by P. W. 12 Abdul Quaim Khan who stated that he saw the injured Dafadar senseless. We have already noticed that P. W. 12 was a reluctant witness and that in cross‑examination he was inclined to speak things in favour of the defence rather glibly. He went so far as to say: "People say that deceased had enemy". This statement, however, is inadmissible in evidence. Having regard to the overwhelming evidence coming from reliable witnesses that the injured could and did speak we disbelieve P. W. 12 when he says that he saw the Dafadar senseless. It is significant to note that in his own examination‑in‑chief the witness having first parried admitted 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, however, added "I heard his statement". Mr. Serajul Huq has contended that having regard to the number and nature of the injuries upon the injured Dafadar it wash unlikely that he was capable of making such a long statement am the one contained in Exh.

2. It should be remembered that the statement Exh. 2, was made by the injured at the hospital after first aid had been rendered to him as is evident from the stitched wounds found on his person, and presumably after some stimulant had been administered to him. It is, therefore, not unlikely that the injured was thus enabled to rally round for sometime so as to make the statement. Although there is no evidence as to the exact time when the injured died, there is evidence to show that he continued to be in his senses several hours after he bad been admitted into the hospital and that he died the same night Besides in the face of categorical evidence coming from reliable witnesses including several doctors and the senior staff nurse of the said hospital that the injured could and did speak, we have no doubt whatsoever that the dying declaration Exh. 2 is the statement of the injured Dafadar. For the reasons stated above we are wholly unable to agree with Mr. Serajul Huq's contention that Exh. 2 is a concocted piece of evidence. We refused to believe that P. W. 7 Dr. Matior Rahman Talukder, Sub‑Divisional Medical Officer attached to the Medical College Hospital, Mymensingh at the relevant time and P. W. 9 Dilip Kumar, the Senior Staff Nurse acted in collusion with the Police Officer P. W. 18 Dhirendra Lal Talukder to create a false dying declaration. We have already noticed that prior to the recording of Exh. 2 the injured Dafadar had made several other statements about his assailants and among the first witnesses to hear them are P. Ws. 3, 13 and

14. We have found no reason to reject their evidence. The next batch of witnesses who heard from the injured Dafadar the names of his assailants are P. Ws. 19 Abdur Rahman, Member of the Union Council and two other local men who were present at the time, namely, P. W. 2 Abdul Wadud and P. W. 12 Abdul Quaim Khan. Apart from the prevarication and reluctance of P. W. 12 Abdul Quaim we have enough evidence to corroborate P. W. 19 that the injured Dafadar did mention the names of his assailants. It is desirable to mention here that there is consistency in all the dying statements, oral or recorded. All these fully prove beyond any reasonable doubt that the injured Dafadar could speak and that he in fact did mention the names of the condemned‑prisoners as his assailants. This evidence has not been affected in any way by P. Ws. 3 and 14 who stated that the injured Dafadar spoke with some difficulty. It was only natural for the Dafadar, who had received no less than twenty‑four serious and severe injuries, to feel difficulty in speaking. The evidence is clear, consistent and virtually unchallenged that the occurrence took place about sun set and Iftar time, and as such there was still sufficient day‑light to enable the injured Dafadar to see and recognise his assailants, both of whom had been well‑known to him. There is, therefore, no scope for doubt that the Dafadar could and did recognize his assailants. We now proceed to examine certain circumstantial evidence furnished by P. Ws. 13, 4 and 17, namely, driver of the truck and the two labourers thereof. The truck driver P. W. 13 has cate gorically stated that he knew the two condemned‑prisoners from before, and that he saw them running at the place of occurrence when he pulled up his truck. Furthermore he saw a dao and a dagger in the hands of the two accused persons. P. Ws. 4 and 17 chased these two persons and that P. W. 4 recognised only one of them, namely, the condemned‑prisoner Atab Ali and P. W. 17 recognised both of them as Joynal and Atab Alt (the two condemned‑prisoners). P. W. 17 further stated that he saw a dao in the hand of Joynal and a dagger in the hand of Atab Ali. We are satisfied on the evidence that there was sufficient day‑light to enable them to see and recognise. It may be noticed here that in Exh. 2 the dying Dafadar also stated that he was Injured by Joynal with Ramdao and Atab Ali with a dagger. The evidence of these three witnesses unmistakably proves that soon after the occurrence the two condemned‑prisoners were seen at the place of occurrence in extremely suspicious circumstances, namely, that both of them were armed with dangerous weapons like dao and dagger, and on seeing the truck stop they ran away. We also find that the evidence of these three witnesses and the evidence of the dying declaration both oral and written corroborate each other. This is clearly circumstantial evidence of a strong character which leads to a reasonable inference that the condemned‑prisoners injured Dafadar Harendra Chandra Sarker (deceased). Some criticism has been advanced on the absence of evidence as to the exact time of the death of the Dafadar. P. W. 1 Prafulla Chandra Sarker a brother of the wife of the deceased, in whose house the deceased had been living with his family for a long time, has stated that the Dafadar died in the hospital in the same night. The First Information Report shows that the Dafadar was alive at 10 p. m. on 6‑1‑67 when the First information Report was recorded inasmuch as the First Information Report does not say that the Dafadar was dead, and consequently a case under section 307/326/34 of the Pakistan Penal Code was started against the two condemned‑prisoners. The inquest was held on the next day, that is, on 7‑1‑67 at 11‑30 a. m. Considering the entire evidence we find that the Dafadar died at night as stated by P. W. 1, and the death occurred sometime after 10 p. m. on 6‑1‑

67. Our attention has also been drawn to the heading of the dying declaration Exh.2, that the statement was recorded at "9‑30 hours". In the body of the declaration, however, it has been stated that the statement was recorded on 6‑1‑67 at 7‑30 p. m. We have examined the original records and we have found that just before the words "9‑30 hours" a portion has been torn which presumably contained the figure `1' inasmuch as the police officer is not expected to write "9‑30 hours" instead of 09‑30 hours. Furthermore the police officer P. W. 18 who recorded the dying statement as well as the First Information a Report has stated in the First Information Report that he had gone to the S. K. Hospital on 6‑1‑67 at 19‑30 hours. Comment has also been made by Mr. Serajul Huq on the non‑production of the Indoor Patient Register spoken to by P. W.

16. We do not think that the non‑production of this document is of any material consequence inasmuch as all the material facts having been proved by reliable evidence, both oral and documentary. The motive suggested by the prosecution for the murder of the Dafadar is that on the night‑previous to the occurrence the said Dafadar Harendra Chandra Sarker, whose house was only half a mile off the house of the two condemned‑prisoners, actively helped the police in searching the houses of the two condemned -prisoners in connection with a dacoity case under section 396 of the Pakistan Penal Code. This fact is corroborated by P. W. 19 who stated that the injured Dafadar told him on query that the Dafadar had accompanied the police to the house of the accused persons for the purpose of making search in connection with a dacoity case and that due to that the accused persons had grudge against the Dafadar. This fact also finds mention in Exh. 2, the dying declaration, wherein it was stated by the dying Dafadar thus: "Be it mentioned that towards the close of the night of 6‑1‑67, under orders of the officers and Sepoys of the Kotwali :'. S. I went to assist the searching of the houses of the accused Joynal and Atab Ali as a Dafadar and out of this grudge the accused persons injured me thus by inflicting `kopes' and dealing blows with the object of murdering me getting me alone" We,' therefore, find that there was clear and strong motive for the two 6' condemned‑prisoners to kill the Dafadar. '. The next point for consideration is as to what was the intention or knowledge with which the condemned‑prisoners inflicted the injuries upon the said Dafadar. The murder and nature of the injury have already been set out in extenso, and they clearly show that the persons who inflicted the injuries could have no other intention but that of causing death of the victim. The evidence clearly and specifically shows that both the condemned‑prisoners jointly caused injuries to the Dafadar with highly dangerous weapons; namely, Ramdao and dagger. The evidence also proves that the attack on the Dafadar was pre‑planned and that the assailants lay in wait for their victim at a lonely place on the high way having been fully aware of the fact that the Dafadar was due to return that way and about that time. It was the month of Ramazan and the time was just about sunset, that is, Iftar time when people generally are expected to be busy breaking their fasts and saying their Maghreb prayers. P. W. 2 has stated he was saying his Maghreb prayer at the time. Two hands of the Dafadar were almost severed by the assailants and among the injuries, all incised wounds, we find no less than four incised wounds on the head varying in size from 1" x 1 x scalp deep to 5" x 1' x 1" bone cut. Among other injuries there were nine incised wounds each 2" x 1 " x muscle deep behind the neck, chest and abdomen and one stitched up stab wound 2" fn length in the right lumber region of the abdomen (Injury No. 13). On opening injury No. 13 the peritoneum, mescentary, transverse colon and liver were found perforated. All these injuries clearly show that the intention of the persons who gave the injuries was undoubtedly to cause death to their victim. We thus find that the prosecution has proved its case beyond any reasonable doubt, and consequently the two condemned- prisoners are guilty of the charge under section 302/34 of the t Pakistan Penal Code for having deliberately murdered Dafadar Herendra Chandra Sarker. There remains the question of sentences passed upon the two condemned‑prisoners. We find that both the condemned -prisoners are thirty years old. There is no suggestion that any of them suffered from any physical or mental infirmity. The nature of the injuries and the place and hour selected for the crime and the weapons used clearly demonstrate the fact that it was a pre‑planned deliberate cold‑blooded murder executed with utmost cruelty. The date and time of occurrence enhanced the gravity of the offence inasmuch as it was the month of Ramazan and Iftar time. The Dafadar was absolutely unarmed, and he was murdered at a lonely place when he was returning home after his day's work. We have anxiously examined the evidence and the record to find if there was any extenuating circumstance, which might be considered in favour of a lesser sentence on the condemned‑prisoners. We have been unable to find any such circumstance. We are also not unmindful of the fact that two persons have been sentenced to death for killing one person. Having thus considered the case in all its aspects we have come to the conclusion that a sentence of death is the only appropriate sentence. We are thus left with no other alternative but to confirm the sentence of death passed on each one of the two condemned‑prisoners. We accordingly confirm the conviction of the two condemned -prisoners under section 302/34 of the Pakistan Penal Code and the sentence of death passed upon each one of them. We accept the Reference of the Additional Sessions Judge, Mymensingh, and dismiss the appeal of the two condemned -prisoners. ABDUL MOUDUD, J.‑‑I agree. A. E. Death sentence confirmed. Appeal dismissed.