P L D 1964 Dacca 566 (PLP)

6. The learned Sessions Judge, in finding the appellant guilty in agreement with the unanimous opinion of the assessors, has observed as follows:‑

"In the present case P. Ws. 1‑6 are all leading men of their respective villages. They are respectable persons having no grudge or ill‑feeling against the accused who is only a boy of 20. 1 am convinced that they have spoken the truth and their evidence is absolutely trustworthy. In the present case the extra‑judicial confession is corroborated by strong circumstances, viz., the conduct of the accused Ansar Sardar who led the members of the Salish to the Khari and pointed out the place wherefrom ultimately the dead body was recovered. This is a very signi ficant circumstance. Another circumstantial evidence is his statement before the Salish that the dead body was at first buried in a corner of the cowshed which was followed up by members of the Salish and the I. O. found it to be correct. They noticed that fresh earth filled up in a pit and when the I. O. had the earth removed, existence of a pit there was dis covered. These 2 pieces of circumstantial evidence corroborate the extra‑judicial confession. After a careful consideration of the entire evidence and circumstances of the case I am convinced that accused Ansar Sardar intentionally caused the death of his father Jana Sardar on 3rd Jaistha, 1368 B. S."

7. The appellant narrowly escaped the sentence of death, the learned Judge having taken the view that he was a mere boy, though of 20 years of age. It appeared to the learned Judge that the prisoner being of immature understanding, played into the hands of older interested people. The learned Judge, therefore, refrained from passing the extreme sentence and imposed a sentence of transportation for life.

8. It is evident from the above extract from the judgment of the learned Sessions Judge that one of the circumstances that persuaded him to act upon the alleged extra‑judicial confession was the find of a pit in the cowshed. The police officer, who recovered the dead body from the Khari, namely, P. W. 9, Assistant Sub‑Inspector Mohammad Moksed Ali, made no mention of the pit in the cowshed. He stated, instead, that after recovery of the dead body he inspected the house and found no incriminating materials there. If there had been a disclosure of earlier burial in the cowshed in the alleged extra judicial con fession, there could be no reason for P. W. 9 to be unaware of the existence of the pit. Nor does this story of an earlier burial in the cowshed find place in the F. I. R., which was lodged at about noon on the day following the alleged confession. It does not appear from the judgment of the Sessions Judge that this aspect of the matter engaged his attention. Another vital aspect in the evidence does not seem to have engaged the attention of the learned trial Judge, namely, that from the sketch map and the index prepared by the I. O. Exhs. 5 and 5 (1) it appears that the baithak‑khana‑cum‑cowshed is the east bhiti but and not the west bhiti hut. It is no wonder either since no question was put to the I. O. by the defence lawyer on the point, and the I. O. also had no opportunity to offer any explanation, in case he had done.

9. Mr. Serajul Huq, the learned Advocate for the appellant, raised a number of points in support of the appeal. In view of the order we are going to make in the appeal, namely, that for a fresh trial, we propose to consider only those of his contentions that may help in a proper conduct of the fresh trial on remand. The learned Advocate drew our attention to a large number of instances of deplorably deficient cross‑examination of the witnesses examined by the prosecution. His contention was that the trial Judge ought to have exercised some amount of vigilance, with a view to properly bringing on record certain materials easily available and essentially necessary in the interests of justice. Indeed, the necessity of such a vigilance on the part of trial Judges can hardly be over‑emphasised, specially in cases involving the death sentence.

10. In the first instance, Mr. Serajul Huq drew our attention to the statement in the first information report that the murder took place in the courtyard, although the witnesses, including the informant, stated in Court that the appellant, in his confession, told them the murder was committed in the baithak‑khana portion of Isharat's west bhiti but the other portion of which was used as a cowshed. Mr. Serajul Huq also pointed out that in the first information report the appellant was not at all named as an accused and that it was not also there that it was he who pointed out the spot wherefrom the dead body was later recovered. Mr. Serajul Huq also pointed out that four other persons, namely, Isharat Akanda, Cheru Akanda, Mona Akanda and Kismat Akanda were named as accused in the first informat ion report where it was stated that the confession was made by those four persons, and that the appellant, who knew of the murder of his father by the four named accused persons, did not dare disclose the matter to anyone as the four accused persons had threatened him with murder, and also because Cheru Akanda was his father‑in‑law. Mr. Serajul Huq further pointed out that instead of mentioning about the burial of the dead body within the cowshed in the first information report, the informant stated in it that the four accused persons named by him therein also confessed before the salish that after the murder the death body was kept in a gunny bag, and then buried in a ditch in Gholkuri Khari. To none of these statements in the first information report, the attention of the informant was drawn. The learned Advocate for the appellant contended that although the attention of the informant was not drawn to those statements, he could use the first information report, as being a written record of the earliest version of the prosecution case. We find that in relation to the first information report the only question put to the Informant was as to whether the appellant stated in the salish that he had himself killed Jana Sardar. Mr. Serajul Huq further drew our attention to an endorsement in the post‑mortem report that the dead body was unidentifiable. In fact, what was stated therein under column "Condition of subject" is as follows :‑‑‑ "Medium built‑highly decomposed with offensive odour; mutilated, disfigured, unidentifiable : wrapped up in Katha and gunny bag ; Mud stained; limbs flexed up ; Hairs fallen off ; eyes softened; whole epidermis skin had fallen off ; Muscles mostly fallen off". In spite of the above endorsement in the post‑mortem report, the doctor, as the learned Sessions Judge has noticed, affirmed that a dead body might be identified even after many months of death, and in a worse condition than the dead body in question. It is rather incomprehensible as to how a dead body can be identified to be that of a particular person even after the epidermis and skin have completely fallen o8'. The doctor's attention was not, however, drawn in cross‑examination to his own endorsement in the post‑mortem report that the dead body was un‑identifiable.

11. There being no mention in the judgment of the learned Sessions Judge of any contradiction in the evidence of wit nesses with reference to their statements before the police, although the officer‑in‑charge Mr. Mohiuddin Ahmed, who investigated the case, admitted that neither P. W. 2 Anisuddin Mondal nor P. W. 4 Basiruddin Mondal told him that the deceased was sleeping when he was murdered, it occurred to us that the attention of those witnesses was not possibly drawn to their earlier statements to the police. On a reference to their evidence in cross‑examination that view was confirmed in the case of P. W. 4 Basir Mondal, though not in the case of P. W. 2 Anisuddin Mondal.

12. In view of the above admission by the investigating police officer, we thought it necessary to call for the police diary and the same is now before us. It is startling to find that P. Ws. 2 to 6 who deposed to the extra judicial confession, stated before the investigating officer that appellant Ansar Sardar in his confession, stated to them that he had killed his father at noon while he was in a sitting position. It is unfortunate that the prosecution witnesses were not cross‑examined with reference to those vital statements made before the police, although in Court they stated that in his confession appellant Ansar Sardar told them that he killed his father in the morning when the latter was sleeping, making the story of murder by the striking with spade plausible.

13. In these circumstances, we find it impossible to decide the fate of the appellant upon the evidence as has been legally on record. We propose, therefore, to direct a retrial, as was done by Ellis and Amin Ahmed, JJ. In similar circumstances, in the case of The State v. Golam Mustafa and another ((1949)1D LR71).

14. The appeal is accordingly allowed and the conviction and sentence of the appellant are set aside. The case is sent back on remand for a fresh trial according to law.

15. In the trial the appellant was defended by a lawyer appointed by the State. In case the appellant be not in a position to engage lawyer of his own choice in the new trial also, we hope a lawyer of sufficient standing and experience will be appointed in good time, so that the lawyer may have adequate opportunity of preparing for the defence, after due communication with the prisoner. The prisoner is directed to be kept in jail custody, pending the fresh trial. BAQUER, J.‑I agree. S. Q. Appeal allowed.