P L D 1964 Dacca 533 (PLP)

9. At the hearing of the reference and the appeal, we were taken through the entire evidence in the case, including the relevant documents that were produced and proved in Court. The evidence with regard to the prosecution case, as stated above, has come from P. W. 1 Ali Ahmed, P. W. 3 Abdul Bashir and P. W. 2 Ajmat Ali. The rest of the witnesses claim to have reached the aforesaid spot immediately after the occurrence or sometime thereafter in the house of deceased.

10. The first noteworthy piece of evidence in this case is that according to P. W. 1 Ali Ahmed, he had accompanied his father, Abdul Karim to the aforesaid Shimna Bazar Hat. He also claims to have returned back with his father after he (the father) had made some purchases at the said bazar. According to his evidence, his father had sold fuel at the Hat and out of the sale proceeds he purchased some mustard oil, molasses and salt and the balance of the money was with P. W. 1 Ali Ahmed himself. In this behalf the evidence of P. W. 13, 3‑

1. Md. Ishaque, who was the investigating officer, is of vital importance. He has stated that except for some marks of violence he got no alamats at the spot (namely, the place of occurrence). This, coupled with the evidence ‑ of P. W. 4 Kazi Osman Gani fixes the place of occurrence at the spot as alleged by the prosecution. But the non‑discovery of the various articles, that were said to have been purchased at the bazar, at the place of occurrence is a very peculiar feature in this case, as to which no explanation has been given by the prosecution. If the deceased was coming from the said bazar after making the said purchases, it would be but natural to expect that the bottle in which the mustard oil was being carried, the molasses and the bundle containing the salt would lie scattered at the place of occurrence. This circumstance raises a reasonable doubt (as it is so contended on behalf of the appellants) as to whether P. W. 1 Ali Ahmed had, in fact, accompanied his deceased father to the Hat or whether his deceased father had at all gone to the Hat as stated by him. This is the initial difficulty which the prosecution has to face, with regard to this case. The non discovery of the articles at the alleged place of occurrence, said to be purchased, by the deceased badly shakes the prosecution case in this behalf. It can only lead to an inference that either P. W. 1, Ali Ahmed, did not accompany his father or that the said Ali Ahmed had not seen the occurrence in the manner as claimed by him.

11. According to the prosecution, there has been a long standing dispute between Abdul Karim on the one side and the sons of Asab Ali represented by the accused persons on the other, thereby leading to enmity between the parties. Such enmity can supply cogent motive for the assailants to attack the deceased Abdul Karim and it may equally impel P. W. 1 All Ahmed to rope in the appellants or as many accused as possible without all of them being involved in the assault. The safest course, therefore, would be to accept the evidence of P. W. 1 Ali Ahmed, only in so far as it has been corroborated by indepen dent evidence.

12. In this context, we may say, at the outset, that we propose to rule out of our consideration the evidence of P. W. 2 Ajmat Ali who, on a very vital point, contradicted himself in respect of his evidence in the trial Court as compared to what he said in the committing Court a point which concerns the identity of the appellants. Furthermore, the evidence of P. W. 2 Ajmat Ali does not fit in with the evidence of P. W. 4, Kazi Osman Gani (whom, as we shall discuss hereafter, we consider to be an independent witness). We would only accept the evidence of P. W. 2 Ajmat Ali in so far as he is corroborated by independent witnesses like P. W. 4 Kazi Osman Gani. It is more than patent that, view in the aforesaid light, the evidence of P. W. 2 is of no value to the prosecution. It is interesting to note that P. W. 2 Ajmat Ali has named, amongst others, one Khoaj Ali as one of the assailants of the deceased, whereas neither P. W. 1 Ali Ahmed nor the deceased Abdul Karim himself mention him, in accordance with any reliable evidence which we can accept, as one of such assailants. It rather shows that P. W. 2 Ajmat Ali was anxious to rope in somebody for some private reason of his own. Beside him, no other witness has named Khoaj Ali. Thus, for reasons specified above, were not prepared to accept the uncorroborated testimony of P. W. 2.

13. P. W. 3 Abdul Bashir, is a son‑in‑law of the deceased Abdul Karim. He claims to have gone to the place of occurrence immediately on hearing the hue and cry that was raised. He claims to have seen the entire occurrence from the beginning to the end, almost in the same manner as P. W. 1 Ali Ahmed had done. His evidence is that at about the time of the occurrence he was walking near about the place of occurrence and when he had heard the alarm that was set up, he went to the spot and saw the occurrence, as narrated above and as stated by P. W. 1 Ali Ahmed. From the evidence in this case it has been established that there was a heavy storm prior to the occurrence. It being the month of May which is the season of storms (nor' wester) in this country it is highly probable that there was such a storm. It further transpires from the evidence that at the time when the occurrence took place it was still drizzling and that the rains had not completely stopped. It would be a very strange conduct on the part of P. W. 3, Abdul Bashir that he would be walking in a village pathway, which, of necessity, must be, at that time, slushy and muddy. Furthermore, this witness was asked in cross‑examination as to whether he stated to the investigating officer that he was walking near about the place of occurrence at about the time when the occurrence took place and he replied in the affirmative. On this point he has been flatly contradicted by the investigating officer in respect of the statement that he had made. We cannot, therefore, accept his evidence that he was taking a walk at about the time of the occurrence at a time which was preceded by a heavy storm and when the rains had not totally ceased to pour in. It is more likely that he would be in the house of his father‑in‑law. The distance between the place of occurrence and the house of Abdul Karim (deceased), according to the evidence of P. W. 13 S. I. Md. Ishaque, would be approximately half to two‑thirds of a mile. Inasmuch as the investigating officer had taken the pains to draw up the sketch map in this respect, his evidence on this point is far more reliable than the evidence. In these circumstances, it would be impossible for P. W. 3 Abdul Bashir to have arrived at the place of occurrence and to have seen the incident from start to finish. We therefore, find it difficult to place any reliance on the evidence of this witness, except in so far as it has been corroborated by independent witness. Judged from this standard, the evidence of P. W. 3, Abdul Bashir, is hardly of any use to the prosecution.

14. The first independent witness in this case is P. W. 4 Kazi Osman Gani. He was a School Master at the time of occurrence and the Head Master of the said School when he gave evidence in Court. In our opinion, he is a respectable as also an independent witness. There has been no suggestion given to him on behalf of the defence as to why he should give false evidence in this case. He has stated that he had also gone to the above‑mentioned Simna Bazar Hat and that while returning from the said bazar he saw seven or eight persons sitting under a jack fruit tree, He, however, proceeded towards the east. Thereafter, upon hearing a cry he hastened back to the place of occurrence and found two injured persons and seven or eight men going away towards the north‑west. One of the injured persons was an elderly gentleman whose name he subsequently came to know to be Abdul Karim. Abdul Karim stated to him that "the sons and grandson of Asab Ali" had assaulted him. In the committing Court he stated that Abdul Karim stated to him that the "sons and grandsons of Asab Ali" had assaulted him. In that Court he did not state that the names of the assailants were mentioned either by the deceased or by P. W.

1. He further stated that P. W. 1 Ali Ahmed stated that the sons and grandsons of Asab Ali had assaulted him and his father. Thus the evidence of this witness fixes the place of occurrence and also the time of occurrence, as stated by the prosecution. It dote not fix the identity of the assailants. The evidence of this witness in the trial Court was that Abdul Karim also named seven or eight persons as his assailants. His attention was drawn to the evidence given by him in the committing Court as well as to his statement made to the investigating officer. It appears that neither in the committing Court nor to the investigating officer this witness has stated that Abdul Karim had named to him seven or eight persons as his assailants. In these circum stances, the safest thing is to reject this part of the evidence of P. W. 4 Kazi Osman Gani, namely, that the deceased Abdul Karim had named to him seven or eight persons as his assailants. The fact, however, remains that in the committing Court (which is also his substantive evidence) he had definitely stated that P. W. 1 Ali Ahmed only stated that "the sons and grandsons of Asab Ali" had assaulted him and his father. It is therefore, safe to conclude that at the earlier possible moment, when an independent witness had arrived at the place of occurrence, the names of the assailants of either Abdul Karim (decea sed) or of P. W. 1 Ali Ahmed were not mentioned. On this point we accept the evidence of P. W. 4 in the com mitting Court in preference to what he stated in the trial Court. This is vital part of the case which should not be lost sight of. Thus, although the evidence of this witness substantially establishes the prosecution case, as to the time and place of occurrence, but, on the crucial point it undermines the case that the appellants before us were the persons who were such assailants. We cannot get away from the fact, at the moment when P. W. Kazi Osman Gani had arrived at the place of occurrence (and we have already noted above that it was almost immediately after the occurrence) it has not been established that the names of assailants were specified by either P. W. 1 Ali Ahmed or by the deceased.

15. The evidence of P. W. 8, Abdur Rouf Choudhury, is to the same effect as that stated by P. W. 4 Kazi Osman Gani. It is stated on behalf of the prosecution that he is related to one of the accused persons, but, inasmuch as evidence fits in which the evidence of P. W. 4, Kazi Osman Gani, there is hardly any good reason to reject the evidence of P. W. 8 Abdur Rouf Choudhury.

16. The sum and substance of the evidence discussed above is that the fact that the articles alleged to have been purchased by the deceased were not found by the police at the place of occurrence and, furthermore, the fact that neither the deceased nor P. W. 1 specifically named their respective assailants leads us to hold that, at least, up to the aforesaid stage the assailants of the deceased have remained unidentified. This closes the first part of the prosecution case.

17. It further appears from the evidence in this case that Abdul Karim was carried from the place of occurrence to his residence which will be, approximately, somewhat less than a mile therefrom, and thereafter, on receipt of certain information, P. W. 10 Jagadish Chandra Sarkar, P. W. 11 Abdur Rashid Choudhury and P. W. 12 Abdul Ahad Choudhury came to the place of occurrence. According to P. W. 11 Abdur Rashid Choudhury, he arrived at the house of deceased Abdul Karim at about the Moglireb‑prayer time which would be about two hours after the incident, P. W. 10, Jagadish Chandra Sarkar arrived there earlier. But the basic fact is that a substantial amount of time had passed between the time when the aforesaid occurrence took place and the coming of the aforesaid P. Ws. 10, 11 and 12 to the residence of the deceased where lie was subsequently carried.

18. It would, therefore, be convenient to discuss the evidence of P. Ws. 10, 11 and 12, namely, Jagadish Chandra Sarkar, Abdur Rashid Choudhury and Abdul Ahad Choudhury, respectively.

19. The position, as we have already stated above, is that neither P. W. 1 Ali Ahmed nor Abdul Karim (deceased) named their assailants to P. W. 4 Kazi Osman Gani and P. W. 8 Abdur Rouf Choudhury. What happened thereafter was that when Abdul Karim was taken to his house the aforesaid witnesses, namely, P. W. 10 Jagadish Chandra Sarkar, P. W. 11 Abdur Rashid Choudhury and P. W. 12 Abdul Ahad Choudhury arrived there. Proceeding now to discuss further the evidence, as given by the aforesaid three witnesses, we would like to point out that P. W. 10 Jagadish Chandra Sarkar appears to us to be a respectable and independent witness and there is no reason why we should disbelieve him. His evidence boils down to this that when summoned for medical assistance to Abdul Karim, the latter named his assailants to him. The evidence of P. W. 11 Abdur Rashid Choudhury and that of P. W. 12 Abdul Ahad Choudhury are substantially the same. It is curious that none of these witnesses, namely, P. Ws. 1.0 to 12, says that P. W. 1 Ali Ahmed stated to him the names of the assailants of his father. Even if it is believed that the deceased had at that stage named his assailants, the question which arises is, what is the value of such evidence?

20. The entire evidence in this case, in so far it can be relied upon, resolves itself thus: the non‑discovery of the articles said to have been purchased by the deceased in the said bazar at the place of occurrence creates a grave suspicion (which accords with the suggestions made by the defence in this case) as to whether P. W. 1 Ali Ahmed had accompanied his father Abdul Karim (deceased) or whether his father had at all gone to the said bazar? This suspicion is strengthened when it is remembered that the names of the assailants were not mentioned to P. W. 4 and P. W. 8 who came to the place of occurrence. (We may note in parenthesis that P. W. 4 and P. W. 8 are the only two reliable witnesses on this point). It is true that P. W. 1 Ali Ahmed had arrived at the place of occurrence earlier than P. W. 4 Kazi Osman Gani ; but it is impossible to locate the exact point of time when he arrived there in view of the fact that the circumstances already discussed above make it doubtful whether he had accompanied his father to the "hat". In those circumstances, what be was able to see is a matter which one can be left to guess only. If he had seen the entire occurrence, it becomes extremely curious that he did not name his assailants and those of the deceased to either of the following witnesses, namely, P. W. 4 Kazi Osman Gani and P. W.8 is Abdur Rauf Choudhury. Therefore, immediately after the occurrence the assailants were unidentified or, at least, rot satisfactorily identified. It is true that two hours later or sometime before such a period, the names were specified. The deceased is said to have stated the names of the assailants at this stage. The naming of the assailants at such a belated stage makes such evidence of very little value. One cannot safely rely on such evidence if the names were not mentioned earlier to any reliable witness. The possibility of tutoring the deceased with regard to the names cannot be eliminated in the circumstances stated above. In this context, one has to remember that the prosecution evidence establishes a prolonged dispute and ill‑feeling between the accused on the one side and P. W. 1 and his father on the other. Therefore, it is unsafe to rely upon the subsequent naming of the assailants when shortly after the occurrence both Abdul Karim and his son P. W. 1 Ali Ahmed did not give such names. It is also curious that even at this late stage P. W. 1, Ali Ahmed, does not name the assailants of his father to P. W. 10 Jagadish Chandra Sarkar, P. W. 11 Abdur Rashid Choudhury and P. W. 12 Abdul Ahad Choudhury. He merely mentions the names of his own assailants.

21. Thus the occurrence is proved as to time and place, as alleged by the prosecution, but the evidence with regard to the identity of the assailants is not free from reasonable doubt. In this connection, we may repeat here what we have already indicated above, that we cannot place any reliance on the evidence of P. W. 2 Amjad Ali and P. W. 3 Abdur Rashid in this behalf. We have, at the outset, discussed the difficulties in accepting the uncorroborated testimony of P. W. I Ali Ahmed. It is unnecesssary to repeat them here. Even if it is held, in conformity with the evidence of P. W. 4 Kazi Osman Gani and P. W. 8 Abdur Rouf Choudhury that "the sons and grandsons of Asab Ali" were the assailants, it cannot be said, with any degree of certainty, which of them were involved in the crime. In the con text of the family feud between the deceased and the descendants of Asab Ali, and also having regard to absence of corroboration by independent evidence as to the names of the assailants, one is contained to hold that it is not improbable that P. W. 1 and the deceased had tried to rope in almost the entire patriarchal house hold of Asab Ali. If one is to leave out some of the appellants one does not know which of them were the actual participants in the crime. In the absence of independent corroboration as to the real participants in the occurrence one cannot, with any con fidence, point one's finger towards any of them.

22. In the records of this case there are petitions to the effect that the accused have won over the witnesses. Some evidence in this behalf has also been led in the trial Court. This is unfortunate because we feel that it is highly probable that the accused has tampered with the evidence which could have been led in this case. Even if we believe that better evidence was not available because some witnesses failed to give evidence as a result of any inducement by the accused, it would not entitle us to ignore the omissions and gaps in the prosecution case. It would certainly not entitle any tribunal to accept as gospel truth evidence which suffers from infirmities which we have indicated above merely because one is left with a feeling that alt the material evidence which could have been led by the prosecution in the trial Court was not forthcoming because of possible manoeuverings on behalf of the accused. This case has to be decided not on evidence which could have been produced, but on the evidence as led by the prosecution.

23. In this connection we would like to add that although it is correct to say that the deposition of a witness in the committing Court, when put into evidence under section 288 of the Code of Criminal Procedure, is substantive evidence and that the trial Court may accept the same or any part of it in preference to the evidence, or any portion thereof, given in the trial Court, nevertheless, the Court is called upon to exercise care and caution in accepting such evidence when there is a serious clash on a material and vital point between the statement made in the committing Court and the evidence given in the trial Court. It cannot be held to be axiomatic that the witness spoke the truth earlier. When he goes back upon his evidence at a later stage it may well be that he might have spoken the truth at a later stage and that his earlier deposition was not true. The Court has to sift and weigh the evidence along with the rest of the evidence adduced in the case. Having regard to the circumstances of this case, as discussed above, we have reached the conclusion that it is safer to reject the evidence of P. W. 2, Ajmat Ali, whom we con sider to be an undependable witness. No hard and fast rule can be laid down in this behalf. The evidence in each case has to be assessed in the light of the circumstances of that case. It has, I however, to be borne in mind that such a witness has lied on, at least, one occasion on a vital point. It is often difficult, if not impossible to find, in such circumstance, which of the two conflicting evidences given by the witness is true.

24. We have given our most serious and careful consider ation to the evidence in the case and it is not without some feeling of regret that we give the appellants the benefit of a doubt which has arisen in our minds with regard to the identity of the assailants of the deceased. This is particularly so because we have entertained a lurking belief that the learned Additional Sessions Judge, in the trial Court, has probably, done substantial justice (in the abstract sense) in this case. But, we have to dispense justice in accordance with law and not according to ours moral conviction with regard to the occurrence. The strict requirement of law is that the onus lies on the prosecution to prove its case beyond reasonable doubt. That is, the nature of this onus need hardly be re‑stated. We have to guide ourselves with well‑settled and well‑established legal norms and standard. for assessment of evidence and, having regard to them, we cannot but come to the conclusion that the charges against the appellants have not been conclusively brought home to them.

25. When human life pends in the scales, caution becomes the primary duty of any tribunal called upon to assess the evidence of the case. Having regard to this statutory rule of caution, we have arrived at the finding stated above, after due scrutiny of the evidence produced by the prosecution.

26. The result, therefore, is that we reject the reference and allow the appeal and set aside the conviction and sentences imposed upon the appellants. We direct that the appellants be set at liberty forthwith, if not detained in connection with any other matter. SALAHUDDIN AHMED, J.‑I agree. S. Q. Appeal allowed.