P L D 1957 Dacca 503 (PLP)

ISPAHANI, J.‑

There are 11 appellants before us, and they were tried on charges under sections 148 and 302/34 of the P. P. C. by the Sessions Judge; Jessore, with the aid of 9‑ Jurors. The Jury unanimously found all the appellants guilty under those sections, and the learned Judge accepting that verdict convicted the appellants under those sections, and sentenced each of them to transportation for life under section 302/34 and passed no separate sentence under section

148. The prosecution case is that on Friday, the 12th Kartick, 1361 B. S., when Moslem Shaikh, the deceased, was returning home from the Hat at Mirapara, and adjoining village to the south with his brother P. W. 1 Mokam Sk. and serveral others of his village a little before sunset, and ‑ while he was walking ahead of all carrying fish in a Kheloi which he had purchased at the Hat, while P. W. 1 Mokam Sk., P. W. 2 Kasem Fakir, P. W. 4 Afsaruddin and P. W. 5 Tabibar Rahman were walking behind him at varying distances along the District Board Road, the appellants suddenly emerged from a bush by the wayside and attacked the deceased Moslem Sk. It was alleged that appellant Muksed Molla struck the first blow on the head of Moslem with a ramdao, Akbar dealt a blow on the right side on the back of Moslem with a vela, which is a spear‑like instrument, and on receiving these blows Moslem fell down on the ground whereupon the other accused persons except Sadek Kazi, Badsha Molla and Abdul Aziz Molla beat him. The accused Dhala Mia struck Moslem on the buttock with a vela. The accused Lal Mia too struck on the left buttock with a vela. The accused Yusuf struck Moslem on the left side of the chest with a vela, the appellant Moslem Molla struck on the back of Moslem with a ramdao. Islam Khan struck on the hand of Moslem with a sarki and Golam Molla struck him on the head with a lathi. It is the prosecution case that appellants Sadek Kazi, Badsha Molla and Abdul Aziz Molla were there armed with sarkis and lathis. P. W. 1 Mokam Sk., the elder brother of the deceased was walking 40 cubits behind Moslem Sk., and he cried out for help when Moslem was attacked. He tried to save his brother, but could not do so on account of threats held out by the appellants. He and the other eye‑witnesses remained powerless, and could not help the deceased because the appellants were armed. Their cries attracted many persons to the scene whereupon the appellant's fled away. After the departure of the appellants, Mokam and his companions went to the deceased, and saw him lying dead in a pool of blood. The brain substance was lying scattered on the road. The place was all shambles with broken skull bones and the intestines coming out through an opening on a side. The iron blade of the vela was embedded in the body of the deceased. It is alleged that many persons came to the place of occurrence to whom the eye‑witnesses mentioned the names of the appellants. Mokam with Kasem Fakir and Afsaruddin left for the Thana leaving the dead body in charge of the Dafadar and other persons. He reported the incident at Narail Police Station at 9‑30 p.m. the same night. A post‑mortem examination was held on the dead body of Moslem Sk. by P. W. 3 Dr. Abdul Jalil, Sub‑divisional Medical Offer, Narail Hospital, on 30th October 1954. He found the following injuries:‑ (1) One incised wound 8" long about 1" about the root of the nose extending up to the external protuberance. The whole parietal bone and a part of the frontal bone and a part of the occipital bone was cut off from the body. (2) One punctured wound 1?" x ?" x 4" at the apex of the heart. (3) One punctured wound 1"x 1" x 2" just below the right scapula. (4) One incised wound 2" x 1" x 1" just below the left scapula. (5) One incised wound 3" x 1" x 1?" on the right buttock. (6) One punctured wound 3" x 1" x 4" on the left buttock. (7) One incised wound l" x 1?" x 1?" on the middle and back of the left forearm. On opening the abdomen the Doctor saw injury No. .2 passing downwards medially and puncturing the anterior wall of the stomach causing an injury 1" long. There was a blood clot in the stomach. Death in the opinion of the Doctor was due to shock and hemorrhage as a result of the injuries which were ante mortem and homicidal. According to the Doctor, the Officer‑in‑Charge, Narail Police Station, produced before him several pieces of skull bone which fitted on the skull of the deceased. The defence contended that the appellants were innocent, and it was sought to be made out that the deceased was a man of desperate and licentious character, who had many enemies, and it is possible that his enemies are responsible for his death. According to the defence some of the prosecution witnesses were liars, because they were at Mirapara Hat at the time of occurrence, and they could not have seen the occurrence at all. It was the defence version that P. W. 1 Mokam Sk., the brother of the informant, was seen selling brinjals long after nightfall at Mirapara Hat. The defence further contended that the appellants Muksed Mulla, Abdul Aziz Molla and Sadek Kazi were seen by people at Mirapara Hat at a time when the occurrence was alleged to have taken place. All the appellants were charged under section 148 as follows:‑ "That you, on or about the 12th of Kartick last, 1361 B. S., corresponding to 29th October 1954, at Palaidanga, P. S. Narail, District, Jessore, were members of an unlawful assembly, and did in prosecution of the common object of such assembly in murdering Moslem Shaikh committed the offence of rioting with deadly weapons such as ramdaos, velas and sarkis . . . . ." The appellants were further charged under sections 302/ 34 of the Code as follows:‑ "That you, on or about the 12th of Kartick last, 1361 B. S., corresponding to 29th October 1954, at Palaidanga, P. S. Narail, District Jessore, did commit murder by intentionally or knowingly causing the death of Moslem Shaikh in furtherance of the common intention of you all . . . . ." As stated already, the Jury found all the accused guilty under both the sections, and the learned Judge accepting and agreeing with that verdict convicted and sentenced the appellants as stated already. Mr. Dinesh Chandra Roy, who has argued this appeal has advanced various arguments, and they will be considered one after another. His first argument is that the learned Judge failed to bring out the fine distinction between sections 302 and 304 of the Penal Code in his explanation of the law of the said sections. He has contended that the learned Judge though he has explained sections 299 and 300 of the Penal Code to the Jury did not bring out the fine distinction between these two sections in order that they may be in a position to find the appellants guilty under section 304 if they so wished on the evidence on record. He has, therefore, argued that because of the failure of the Judge to bring out this fine distinction, the whole charge to the Jury is vitiated causing a failure of justice. The learned Judge has froth page 10 of the charge to page 12 explained sections 299 and 300 to the Jury. The explanation given by the Judge of those sections is sufficient, and cannot be construed to be a wrong interpretation of the law though the Judge may not have brought out the fine distinction as has been argued before us. The fine distinction in the present case was out of place entirely having regard to the facts of this case. The prosecution case was a case of murder and nothing else. It was not alleged by the prosecution that the offence committed by the appellants was an offence of manslaughter. As a matter of fact, on a perusal of the charge to the jury, the Judge has in certain places mentioned the fact that this was a case of murder and nothing else. At page 24 h? states as follows:‑ "Here in this case you will have to consider whether the factum of murder or in other words the corpus delicti has been proved beyond reasonable doubt . . . . ." At page 26 he states as follows." "It is for you to consider whether these injuries and the blade indicated that Moslem was the victim of murder." On the same page lower down he states: "If you decide that Moslem was murdered you must proceed to consider whether these accused persons were concerned in the crime. If on the other hand it you decide that murder of MosieL1 was not proved you need not con?sider the other question." On the facts of this case, therefore, there was no occasion for the Judge to bring out the fine distinction as has been argued. A distinction has been placed before the Jury, and what is more the lesser offences of grievous hurt and simple hurt were also explained to the Jury as is apparent from pages 12 and

13. We are, therefore, unable to accept this argument, and hold that the charge is vitiated. It was next contended that while the learned Judge was giving the Jury his directions on the question of we special plea taken by the defence, viz, that of alibi, the learned Judge erred in observing as follows: "Here afair, I would like to repeat that the proof of alibi, namely, of circumstances, which negatively shows that the crime must exclude all chances of the accused being present at the time of occurrence . . . . ." And "You will consider whether this man's evidence would exclude all possibilities of the accused being present at the time and place of occurrence . . . . . And again: "Here again, you will consider the evidence of this man to see whether the evidence precludes all possibilities of the accused being present at the time of occurrence." In this connection it was further argued that the learned Judge ought to have told the Jury that even if the accused were considered to have failed to have affirmatively proved their special plea of alibi, they were entitled to an acquittal, if they had succeeded simply in raising a reasonable doubt. The sentence which is really the target of attack is the following sentence:‑ "I would like to repeat that the proof of alibi, namely of circumstances, which negatively shows that the accused persons could not have committed the crime, must exclude all chances of the accused being present at the time of occurrence, and must certainly come from credible witnesses . . . . ." Mr. Roy has contended that the direction given by the learned Judge is a misdirection, and he should have told the Jury that if on the facts and circumstances of the case they bad any doubt in their mind, that doubt should be given in favour of the appellants, and in support relied on Safdar Ali's case (P L D 1953 F C 93: 5 D L R 107 F C). It was inter alia held therein by the Honble Abdul Rashid, C. J., that in a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt. In that cited authority, section 105 of the Evidence Act was involved, and that section is to the effect that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence is upon him, and the Court shall presume the absence of such circumstances. That was a case where provocation was involved, and the right of self‑defence came into question; and on the facts of the case, the learned Judges of the Federal Court held that if after an examination of the whole evidence, the Court is of opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In the same volume reliance was placed on the case of Muhammad Aslam v. The Crown (P L D 1953 F C 115: 5 D L R 13 3), and this decision follows the decision in Safdar Ali's case. In that case also the accused put forward self‑defence as his defence. In our opinion, the authorities cited can be of no avail to the appellants, because under section 103 of the Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it provided by any law that the proof of that fact shall lie on any particular person. The illustration to that section is to this effect: `B' wishes the Court to believe that, at the time in question, he was elsewhere. He A must prove it. It is, therefore, clear that as a special plea was taken by some of the appellants, namely, appellant No.1 Muksed Molhi., Sadek Kazi and Abdul Aziz Molla that they were at the time of occurrence at Mirapara Hat, the onus was entirely on them to prove affirmatively that they were there, and not at any other place. The accused examined some witnesses to prove the alibi, and this evidence was placed before the Jury in detail as also the evidence of the eye?witnesses, and the Jurors did not accept the defence case. In this connection Mr. Roy has submitted that if the appellant Muksed was not at the place of occurrence, and he according to the prosecution case dealt the first blow on the deceased, the manner of the occurrence would become doubtful, and this fact has not been placed before the Jury. This is not correct because at page 34 the learned Judge told the Jury as follows:‑ "Next the defence tried to show that the accused persons, namely, accused Abdul Aziz, Sadek, Muksed were at the Hat at the tune of occurrence. If you believe this evidence of alibi you must find them not guilty. In that case you must as well look at the prosecution case with suspicion, since the accused Muksed according to the eye‑witnesses took a leading part in the assault. It would be a good case for disbelieving the eye‑witnesses if you believe the defence evidence that the accused Muksed was at the Hat at the time of occurrence." That is a complete answer to the argument advanced, and so far as the question of alibi is concerned, we are satisfied that there is no misdirection in the direction given in the charge delivered on this point. It was next contended that the learned Judge erred in failing to draw the attention of the Jury to the non?-examination of material witnesses by the prosecution, and acquaint them with the legal effect of withholding of material witnesses in relation to the alleged occurrence. Mr. Roy has argued that Madasser Dafadar and Mozam Sikdar were examined by the Investigating Officer, and were cited as witnesses in the charge‑sheet, and they being material witnesses should have been examined in the case, and the learned Judge omitted to tell the Jury that they should draw an adverse,, inference against the, prosecution for their non‑examination. The whole question is whether these witnesses are material witnesses. According to P. W. I Mokam Sk., after the occurrence Panchanan Chowkidar and Madasser Dafadar were called, and the latter came a little after nightfall. The chowkidar did not come &t Ail. According to P. W. 2 Kasem Fakir, after the appellants ran away on hearing cries, Ejaruddin Molla, Kalam Biswas, Yunus Molla and Harez Fakir and Mozam Sikdar came there, and they were told about the occurrence and the names of the assailants. From this evidence it is clear that these two persons are not eye witnesses of the occurrence, but came after the occurrence was over, and they heard about the occurrence and the names of the appellants. Though their names are mentioned in the charge‑sheet, they do not appear to be material witnesses, and their evidence, if, examined, would have only gone to corro?borate the evidence already on record, Mr. Roy relied on the case of Sheikh Nawab Ali and others v. King Emperor (53 C L J 54), where it was held that the omission of the trial Judge to direct the Jury as to the inference they were entitled to draw if they were not satisfied with the explanation suggested for the absence of material witnesses is a non‑direction amounting to a misdirection, and is a good reason for setting aside the conviction of the accused persons. In that case the witnesses not examined were witnesses of the occurrence, and they were held to be material witnesses. In Sali Sheikh and another v. Emperor (54 C L J 244), there was omission on the part of the prosecution to produce certain independent witnesses, and there was no satisfactory explanation for this omission, and the Judge told the Jury that none of the independent witnesses had been cited or examined by the prosecution, and the Jury were to give their due consideration to the absence of such witnesses, and further observed that that point bad been impressed upon the Jury by the learned Advocate for the defence, and that point deserved their serious consideration, it was held that the direction given in the charge to the Jury was insufficient for non‑examination of those witnesses. In the present case, the witnesses in question are not material witnesses and the omission on the part of the learned Judge to tell the Jury to draw an adverse inference for their non‑examination does not arise and there is no failure of justice. It was next contended that the learned Judge erred in failing to marshal and arrange the evidence on record accused‑wise, i.e., in respect of each accused separately, in view of the fact that the cases of the accused were not identical. We have referred to various portions of the charge to the Jury, and Mr. Roy has complained that as the defence of all the appellants was not alike, it was the duty of the Judge a to set out the evidence against each of the appellants, and this not having been done, the Jury were confused in arriving at their verdict in respect of each of the accused. He has pointed out that P. W. 7 mentioned as having seen 5 appel?lants, namely, Lal Mia, Golap, Islam Khan, Moslem and Akbar as running away towards the north from the south. Accord?ing to P. W. 8 Harez Faqir, he saw while going to the place of row Moslem and Akbar running towards the west by his right side. According to P. W.9 Ejaruddin Molla, he saw the accused Moslem, Islam and Lal Mia running towards the north from south when he came upon the District Board Road. Mr. Roy, therefore, contended that the learned Judge should have placed all these materials before the Jury in respect of those particular accused so that they could appreciate the evidence adduced against each accused. He has also complained that the cases of appellants Sadek Cazi, Badsha Molla and Abdul Aziz Molla were not brought to the notice of the Jury, and according to the evidence, these three appellants although armed did not take any specific part in assaulting the deceased. The case of the individual accused commences from page 31 of the charge. It appears that the learned Judge placed the specific cases of Muksed Molla, Abdul Aziz Molla and Sadek before the Jury, and in that connection placed the evidence of D. Ws. 3, 4 and 5 before them. He also placed before the Jury the evidence of D. Ws. 1 and 2 who sought to prove that accused Muksed was at Mirapara Hat at the time of occurrence. The specific cases of appellants Muksed, Sadek and Abdul Aziz as deposed to by the defence witnesses was in detail placed before the Jury. So far as appellants Sadek, Badsha Molla and Abdul Aziz Molla are concerned, be told the Jury that according to the evidence, these appellants were with the other accused persons carrying sarkis and lathis. He cautioned the Jury, and said that it was for them to decide as to how they would take the evidence of the eye‑witnesses. It cannot, therefore, be argued that the cases of these appellants were ‑given a go by in the charge to the Jury, and they were not told what the prosecution case so far as they were concerned. As regards the grievance made regarding the evidence of P. Ws. 7, 8 and 9 that they saw some of the appellants going away though their evidence was placed before the Jury, the omission on the part of the Judge to sort out their evidence in respect of each accused ensures to the benefit of the respective accused persons and not to their detriment. Thus those particular accused persons have been benefited by this omission. It may, however, be stated that in a general way the Judge did tell the Jury at page 35 as follows: --‑ "Next you have the evidence of P. W. 7 Kalam Biswas, P. W. 8 Harez and P. W. 9 Ejaruddin who saw some of the accused persons running away from the place of assault." He, however, did not mention the particular accused persons they saw running away. On a consideration of all the facts and circumstances of the charge to the Jury, we are satisfied that the cases of the appellants though not individually put before the Jury were clear before them in view of the fact that the prosecution witnesses came with a uniform story about the part played by the accused persons, which he told the Jury. At page 36 he told the Jury: "Gentlemen, here is a grave charge and you must exercise great caution in shifting evidence, you must consider the evidence against each of the accused persons separately". So far as the appellant Moslem is concerned, the Jury were told that his name did not appear in the First Information Report. It was next contended that the learned Judge used the First Information Report as substantive evidence, and this has r caused serious prejudice to the appellants, and in this con?nection Mr. Roy has relied on a passage at page 29 to the following effect:‑ "You have heard the First Information Report that was read out to you. It was ;a long story with graphic details about the first attack and the assault. It named all the accused persons except Moslem. It is for you to consider whether the defence attempt to show that the 3 eye?witnesses, namely, Mokam, Afsar and Kasem did not see the occurrence was believable." Mr. Roy has contended that by this passage the learned Judge tried to nullify the effect of the evidence of D. W. 5 Tahajuddin Molla who stated that Mokam Sk., Kasem and Afsaruddin were at the Hat till an Lhour after night fall. We are unable to accept the interpretation put by Mr. Roy. The learned Judge has in the next sentence stated that the Jury will see that the evidence of Akam and Tabibar Rahman remains untouched so far as their presence at the place of occurrence is concerned. At page 31, the learned Judge has told the Jury as follows:‑ . "Here again I would like you to consider whether the evidence of P. W. Mokam was substantially corroborated by his statement in the First Information Report." At page 35 he told the Jury that in the First Information Report the name of Moslem was not mentioned as 4 person taking an active part in the assault, and at the top of page 36 he told them that the statement in the First Information Report can be used only in contradicting the statement of the informant Mokam which is a correct direction. He further told them that the omission of the name of Moslem a in the First Information Report could afford a scope for exercise of caution in the way of accepting the evidence of the other witnesses naming the accused Moslem. In the last sentence quoted, there is a misdirection in the sense that the statement made in the First Information Report is sought to be contradicted by the evidence of the other witnesses in the case naming the accused Moslem, but that misdirection ensures to the benefit of the said accused. The learned Judge at page 31 told the Jury that it was for them to consider whether they would accept the evidence of the 5 eye‑witnesses. He told them that, if they believed the defence evidence that Kasem, Mokam and Afsar were at the Hat, they could not accept the evidence of these three eye‑witnesses who spoke of seeing the assault. If once they believed the evidence of D. Ws. they should treat the evidence of these three eye‑witnesses as well as of other witnesses with suspicion. The defence evidence, if believed, he told them, would show that the eye‑witnesses were created, and the time of occurrence had been shifted. He has finally told them that it was for them to decide whether they would accept the evidence of the five eye‑witnesses. At page 34 he told the Jury that if they believed the defence evidence that Mokam, Kasem and Afsar were at the Hat at the time of occurrence, then the prosecution case should be looked at with suspicion, and they could not believe those three eye?witnesses. He further told them that it would be difficult to believe the other two witnesses, namely, Tabibar Rahman and Akam who were alleged to be present with those three eye‑witnesses. On the same page he told them further as follows:‑ "Now, if you do not believe the defence evidence that' these accused persons or the three eye‑witnesses were at the Hat at the time of occurrence you cannot on that account hold the prosecution case to be true. The falsity of the defence case cannot go to prove the truth of the prosecution case. In any view you are to consider whether you can accept the evidence of the eye‑witnesses so as to hold that these accused persons or any of them committed the crime." He told them further on the same page that all the five eye‑witnesses came with graphic description as to how the accused persons committed murder, and it was for the Jury to consider how they would assess the value of these eye?witnesses. At page 35 he told them that if they disbelieved the evidence of the eye‑witnesses or entertained any doubt about the truth of the evidence of the eye‑witnesses, they must straightaway find the accused persons, not guilty. On a consideration of the passages above referred to it is amply clear that the entire case was placed before the Jury with sufficient caution regarding the prosecution witnesses. It was next contended that the learned Judge erred in failing to place properly before the Jury the discrepancies in the prosecution evidence, and the statements of some of the prosecution witnesses before the committing Court to which attention of the respective witnesses was drawn in the Court of Sessions. In this particular, reference was made to the evidence of P. W. 5 Tabibar Rahman who stated in the Sessions Court that he did not say in the lower Court that he was coming from the Hat along with five others as he was not asked about it. This is an omission on his part, and he has given an explanation about. P. W. 6 Akam Sheikh stated in the lower Court that he ran and saw the accused persons attacking the deceased. In the Sessions Court he apparently did not say he went to the place of occurrence running. P. W. 7 Kalam Biswas stated in the lower Court that he saw some of the accused persons running away from the spot, which he did not say in the Sessions Court. Two are minor discrepancies, and one is an omission, and, in our opinion, they are not of such a nature as to affect the case of the prosecution in any way. The omission of the Judge to bring these facts to the notice of the Jury becomes immaterial. The last point urged is that the learned Judge should have placed before the Jury the question of visibility and recognition of the appellants to enable them to assess the value of the evidence that the prosecution had led on this point. The learned Advocate has contended that? has failure to do so has caused a failure of justice, because the question of visibility was a vital one in the case. At page 16 of the charge while dealing with evi?dence of P. W. 1 Mokam Sk., he told the Jury that this witness went onto say that Moslem started for home a little before sunset. While dealing with the evidence of the other eye‑witnesses at page 18, he told them that according to their evidence there was daylight when the assault took place. At page 19 when setting out the evidence of P. W. 8 Harez Fakir, he told them that according to him he was going to the south along the District Board Road a little before sunset when he heard the cries coming from the south. He also told them that P. W. 9 Ejaruddin Molla heard cries coming from the south at about sunset time. At page 24 while dealing with the evidence of the eye‑witnesses, he again told them that according to them the attack took place a little before sunset when the appellants came variously armed and attacked the deceased and killed him on the sport. Not only this, he also placed the defence version before the Jury by telling them that according to D. W. 4 Serajuddin Molla, Mokam was selling brinjals by his side till candlelight. He also reminded the Jury that according to D. W. 5 Tahajuddin Molla, he was returning home from the Hat about an hour after nightfall. Thus, it is apparent that the learned Judge on the question of visibility placed not only the prosecution version of the case, but also the defence version, and although he has not devoted a separate paragraph on this question, the materials placed before the Jury were sufficient to enable them to ascertain whether at the time of the assault the appellants could be recognised. From the verdict of the Jury it is apparent that they accepted the prosecution version that there was sufficient light enabling the appellants to be recognised by the eye‑witnesses. We have gone through the charge to the Jury very carefully, and we are of opinion that them is no misdirection or non‑direction of a serious nature to cause a failure of justice. The appeal for the reasons stated above is dismissed. ISMAIL, J.‑I agree. Z. A. S.??????????? Appeal dismissed.