P L D 1965 Dacca 198 (PLP)

SIKANDAR ALI, J.‑Appellant Abdur Razzaque Peada alias Abdul Razzaque Peada was placed on trial before Mr. G. R. Chowdhury, Sessions Judge, Bakerganj, on a charge under section 302 of the Pakistan Penal Code for having intentionally or knowingly caused the death of one Joban Ali Mirdha. The trial was held with the aid of four Assessors, all of whom in due course, were unanimous in their opinion that the appellant was guilty of the offence charged. Agreeing with the Assessors, the learned trial Judge also found him guilty to the charge and convicting him accordingly sentenced him to transportation for life. The victim in the case is one Joban Ali Mirdha father‑in‑law of the appellant. It appears that he auction‑purchased the homestead of the appellant and his co‑sharers but subsequently gifted away 6 annas share therein to his daughter being the wife of the appellant and another 8 annas share to the two brothers of the appellant in equal proportions. The appellant, it is said, wanted to have the remaining 2 annas share, but Joban Ali did not agree to this and instead conveyed the same to one Bondey Ali, a cousin of the appellant, living on the homestead concerned. It is said that for the purpose of execution and registration of the necessary document in favour of Bondey Ali, Joban Ali came to Barisal on the 3rd of August, 1961, in company with his son P. W. 2 Abdul Malek Mirdha aged about 17 years. After transaction of the said business he got on the boat by which he had come along with his said son at the Beltala Ferry Ghat for the purpose of crossing the Kirtonkhola river. When they were about to start, appellant Abdur Razzaque appeared there and got on the boat representing to them that he too proposed to go to their house. Then when the boat came at about mid‑stream, the appellant it is alleged, took his father‑in‑law Joban Ali to task for the conveyance of the 2 annas share in favour of Bondey Ali thus depriving him of the same and thereafter pushed him down into the river and kept him pressed down under water. He is also said to have then snatched away the Baitha from the hand of P. W. 2 Abdul Malek and then thrown away the one in his own hand into the river. According to the prosecution, it is with the Baitha snatched away from P. W. 2 Abdul Malek that the appellant kept the victim pressed down under water. Abdul Malek initially raised alarm but was silenced by threats of violence held out by the appellant. The latter then plied on the boat towards their destination up to a certain distance and then jumped down into the water and reached the other bank, namely, eastern bank by swimming. Abdul Malek also did the same. As for the boat that appears to have sunk when the appellant jumped down. On reaching the eastern shore, the appel lant took to his heels and ran away through some Hogla bushes standing on the bank of the river there; while Abdul Malek narrated his experiences to some people who were there. Next morning he went to the Kotwali Police Station and lodged a written information which appears to have been entered in the General Diary maintained in the Thana. Searches were made but to no purpose. It is said that P. W. 6 Abdul Ali Akon saw the dead body in the river at a place called Jogua on the day following the date of the occurrence and again sighted the same at another place near about Dayutala Char two days later. He informed P. W. 8 Rahman Ali Mirdha, another son of Joban Ali of this and escorted him to Deyutala but on arrival they found only the skull and bones of the dead body, the flesh having been eaten up by vultures. They picked up the skull and bones and produced the same at the Thana. The bones were later examined by a doctor, namely, P. W. 1 Dr. Serajul Huque. He could not ascertain the cause of death and only opined that the bones were of an old human being of the male sex. It appears that sometime, later or to be more accurate, on 13‑8‑1961, Abdul Malek (P. W. 2) lodged another information at the Thana and the police treating that information as the First Information Report went ahead with their investigations and eventually submitted charge‑sheet against the appellant. The defence taken on behalf of the appellant at the trial appears to be that he was not at all there on the ill‑fated boat and that it must have been a case of drowning by accident. The further case made by the defence is that the appellant was falsely implicated out of grudge and enmity as he had taken a second wife a little over one year prior to the institution of this case and also got the 6 annas share transferred by Joban Ali to his wife retransferred to himself. It was also contended that for all these reasons Joban Ali wanted the appellant to divorce his (Joban Ali's) daughter but as the appellant did not agree, the former detained his (Appellant's) wife in his house. Ultimately, however, the learned trial Judge rejected the defence version and arming the prosecution case as proved and the charge against the appellant brought home to him beyond reasonable doubt, convicted and sentenced him as already stated above. In order to justify or sustain the conviction of an accused person under section 302 of the Penal Code the prosecution must in the first instance prove the death of the alleged victim and then make out that that death was caused by some act done by A the accused person and not coming within the protection out any of the Exceptions to section 300 of the Penal Code. To start with, therefore, we may usefully see whether the prosecution in the instant case succeeded in proving the death of Joban Ali. All the evidence on record in this behalf, even taking it as it is, goes no more than this that the appellant pushed down Joban Ali from the boat into the current of the river and kept him pressed down under water with a Baitha. Another piece of evidence spun to it is that Joban Ali has not been seen or heard of since then. Two of the witnesses examined by the prosecution, namely, P. W. 6 Abdul Ali Akon and P. W. 7 Taher Ali Howladar claim to have seen the dead body of Joban Ali in the river at a place called Jogua on the day following the date of the occurrence. P. W. 6 Abdul Ali Akon claims to have again noticed the self‑same dead body at another place two days later, that is, on Sunday. Further evidence led in the case runs to the effect that when thereafter P. W. 6 Abdul Ali Akon in company with P. W. 8 Raham Ali Mirdha went to the place where the former claimed to have last seen the dead body, they only found the skull and bones, the flesh having in the meantime been eaten up by vultures. I however, appears that the evidence of both of these witnesses stands contradicted by their respective statements made before the Investigating Officer under section 161 of the Code of Criminal Procedure. In view of this, the learned trial Judge discarded their evidence as to having seen the dead body and recognised the same as that of Joban Ali as not being reasonably dependable. Reference has already been made to the fact that the skull and bones picked up by P. Ws. 6 and 8, were examined by P. W. 1 Dr. Serajul Huq. As already stated, he could not determine the cause of death and the only opinion given by him was that the bones were those of a human being of the male sex which can obviously carry the prosecution nowhere. What remains, therefore, is the evidence already mentioned above, namely, that the appellant pushed down the victim concerned from the boat into the current of the rive and that the latter has not been seen or heard of since then. This is clearly insufficient to justify a conclusion that the victim in question must be dead or in other words that the said death can be said to have been legally established. Mr. Abdul Hakim, the learned Deputy Legal Remembrancer appearing for the State also candidly conceded to this. In our opinion, therefore, death of Johan Ali has not been legally made out and that by itself is sufficient to render the conviction of the appellant under section 302 of the Penal Code insupportable in law. This, however, does not dispose of the case as it is still necessary to consider whether the facts proved are such as may be said to make out any other offence and thus render the appellant liable under some other provision of the Penal Code. This necessarily requires us to go into the evidence, which we propose to do presently. The prosecution case, as has already been made clear above, is that on the fateful day‑ Joban Ali in company with his son P. W. 2 Abdul Malek went to Barisal for the purpose of executing a deed of conveyance in favour of one Bondey Ali with respect to 2 annas share of the common homestead occupied by the appellant and his co‑sharers including Bondey Ali mentioned above. This is not really .challenged or disputed. In any case, it has, in our view, also been made out affirmatively in a convincing manner. In the first place the relevant document itself has been brought on record and that shows the execution and registration of a kabala to the effect indicated above on 3‑8‑

61. That is also supported by the direct evidence of P. W. 2 Abdul Malek. This evidence further receives some support from the testimony of two other witnesses, namely, P. W. 3 Arshad Ali and P. W. 5 Abdul Ali Chowkidar who have deposed that they saw Joban Ali, Abdul Malek and the appellant proceeding from Beltala Ferry. Ghat on the western bank of Kirtankhola towards the other bank. Similarly P. W. 4 Kashem Ali and P. W. 11 Abdul Mannan have stated inter alia that they noticed the appellant and P. W. 2 Abdul Malek swimming across the river to the eastern bank and further that Abdul Malek also related to them the facts of the incident as indicated above. So far as the evidence of the said witnesses on this point is concerned, we find no reason at all to doubt or disbelieve the same. Thus on a careful consideration of the evidence and circumstances on record, we feel satisfied that Joban Ali actually went to Barisal on the fateful day and that the appellant too was on his boat when after finishing his business at Barisal he was on his way back home at about 6 or 6‑15 p. m. We then pass on to the alleged occurrence itself. According to P. W. 2 Abdul Malek when they had reached about the middle of the river, which, it may be noted here, is half a mile or so wide at that place, the appellant challenged his father over the conveyance effected by him in favour of Bondey Ali and immediately pushed him down into the river. His evidence further is that the appellant instantaneously disarmed him of the Baitha with which he was presumably plying the boat and then throwing out the Baitha that he himself was carrying, kept his father‑in‑law pressed down under water with the Baitha snatched away from him. He raised alarm but was ultimately silenced by threats of violence held out by the appellant. Continuing he has stated that the appellant thereafter plied the boat towards the eastern bank up to a certain distance and then jumping down from the boat and causing the boat to sink thereby swam across to the eastern bank and that he himself too was forced to do the same. He has been substantially supported in this behalf by four of the witnesses already mentioned above, namely, P. Ws. 3 and 5 who were on the western bank and P. Ws. 4 and 11 who were on the eastern bank. These witnesses claim to have seen the appellant pushing down Joban Ali into the river and then keeping him pressed down under water. It is, however, interesting to note that at least three of them, namely, P. Ws. 3, 4 and 11 are contradicted in this behalf by the statements made by them before the Investigating Officer when examined under section 161 of the Code of Criminal Procedure. It appears that none of them made any statement to the above effect before the Investigating Officer. In this view of the matter, therefore, it is difficult to place any reliance upon their evidence on this point. Even apart from this the surrounding circumstances disclosed also appear to us to render their testimony regarding the factum of the occurrence itself as well as that of P. W. 5 Abdul Ali Chowkidar, highly doubtful. As has already been indicated above, the occurrence took place when it was about dusk and the distance from which these two sets of witnesses claim to have seen the victim pushed down into the water from either side of the river, appears to be not less than or at any rate, about a quarter of a mile. It may also be borne in mind in this connection that all these witnesses appear to be related to the complainant party also. Referring to this aspect of the matter, the learned trial Judge has observed:‑ "We have also got the width of the river at the place of occurrence to be about half a mile. In consideration of the time and the distance at which the P. Ws. Arshed, Kasem Ali, Abdul Ali Chowkidar and Mannan were standing on the western and eastern banks it may not be quite possible for them to see the faces of the inmates of the boat at the time when the occurrence was taking place at about the middle of the river. So the evidence spoken of by P. W. 4 Kasem Ali, P. W. 5 Abdul Ali Chowkidar and P. W. 11 Abdul Mannan giving the name of the assailant and the assailed in this Court and omitting the same before the I. O. cannot safely be relied on." Having regard to the evidence, the learned Deputy Legal Remem brances also found it difficult to question the soundness of the above view taken by the learned trial Judge and we on our part find ourselves in complete agreement with him in that behalf. The position in the final analysis, therefore, comes to this that the prosecution case rests solely on the evidence of P. W. 2 Abdul Malek, son of the victim Joban Ali, and the question arising is whether the testimony of this solitary witness can be accepted as such as may be sufficient to establish the truth of the occurrence spoken to by him and thus make out any offence as against the appellant. The learned trial Judge has no doubt accepted him as a witness of truth and relied upon his testimony as reasonably dependable, but having regard to the facts disclosed and the circumstances emerging therefrom, we cannot see our way to agree with him and accept his finding. It has already been mentioned above that the prosecution case comes to rest solely upon the testimony of P. W. 2 Abdul Malek, but in order that the evidence of a single witness may be regarded as C dependable and sufficient to warrant the conviction of the accused person concerned, it must be such as can inspire implicit confidence. That, we are afraid, cannot be predicated with respect to P. W. 2 Abdul Malek not only because he is highly interested but also because of other factors disclosed from the facts and circumstances on record. In the first place, the evidence given by him before the trial Court appears to disclose with reference to his deposition before the enquiring Magistrate, discrepancies in respect of some particulars, which, in the circumstances of the present case, cannot, in our view, be brushed aside as were matters of trivial details. Another staring fact is that the feelings between the two parties cannot be said to be harmonious or cordial. It is true that the P. Ws., concerned denied most of the suggestions put to them by the defence for the purpose of showing the existence of ill‑feeling as between the two parties and the defence also did not adduce any evidence to substantiate the same, but one fact still remains and it is that a year or so before the present case, the appellant took a second wife and has not yet divorced his first wife, that is, the daughter of Joban Ali and sister of P. W. 2 Abdul Malek. These circumstances are apparently such as tend to detract from the weight of the evidence given by P. W. 2 Abdul Malek. It further appears from his evidence that prior to the alleged push, resulting according to the prosecution, in the fall of Joban Ali in the current of the river, the appellant challenged the latter over the transfer of the aforesaid 2 annas share in the homestead made by him in favour of Bondey Ali. It is highly unlikely that to this Joban Ali himself made no reply or when thereafter the appellant proceeded to catch hold' of him and throw him into the river, he himself did not struggle or his son instead of coming to his rescue, preferred to play the role of a silent and passive spectator. The exact point sought to be driven at by us is that it is not unlikely that there must have been some altercation as well as movement on the boat, which, it is important to note, was made of split pieces of betel nut trees. It was obviously, therefore, an extremely light boat and if there was some movement thereon, as indicated above, the boat must of necessity go down under water throwing the occupants to their fates in the current of the river. In other words, the possibility of the boat having capsized as a result of movement following an altercation between the parties and possibly also the attempt of the appellant to catch hold of Joban Ali cannot be dogmatically ruled out. In our view, this receives some support, though of an indirect nature, from the fact that it does not appear to be the prosecution case even that the appellant was found to carry any weapon with him. Had he had the intention of overpowering Joban Ali and causing his death by throwing him into the river he must have also been conscious of the fact that besides Joban Ali, his son P. W. 2 Abdul Malek also was there and was thus bound to offer resistance to the appellant. That being so, it is quite likely that he would have carried some arm at least for the purpose of his defence, had he had any intention of the nature referred to above. Thus on an anxious consideration of the evidence together with all other relevant facts and circumstances on record, we are led to entertain grave doubts as to the truth of the uncorroborated testimony of P. W. 2 Abdul Malek that the appellant pushed down his father into the river from the boat. As already indicated above, the possibility of the boat having capsized with all the three occupants having as a result fallen into the river by reason of that accident cannot be definitely ruled out. In this view of the matter, therefore, the charge against the appellant cannot be said to have been made out beyond reasonable doubt and he is, in our opinion, entitled to get the benefit of that doubt. The result, therefore, is that we allow the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge against him. The appellant is directed to be set at liberty forthwith if not wanted in any other connection. A. SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Appeal accepted.