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Failure by the prosecution to examine the investigation officer is a serious defect
The Supreme Court of Bangladesh
Criminal Appeal No. 334 of 1999
Md Fakkar Ali and others V
The State
Before Mr Justice Abdul Quddus and Mr Justice Mohammad Bazlur Rahman
Date of Judgment: April 9, 2002
Result: Appeal allowed
Code of Criminal Procedure 1898 (V of 1898)
Background
Md Abdul Quddus, J: This appeal by convict-appellants (1) Fakkar Ali, (2) Ruhul Amin, (3) Jamal Talukder and (4) Mostafiz Talukder is against the judgment, order of conviction and sentence dated 14.2.99 in Sessions Case 36/95 by Assistant Judge, Bagerhat, arising out of Morelgonj PS Case 8 dated 16.5.94 GR 79/94 under section 394 Penal Code.
Prosecution case in brief was that informant PW1 Hemayetuddin was returning home from his rice shop at Morelgonj with Tk. 70,000/- in pocket at 6 PM on 13.5.94 and when at 6:30 PM he reached the road after crossing the "Bara Badura Bara Pul" accused Fokkar Ali, Ruhul Amin, Jamal and Mostafiz suddenly attacked him coming out from the bush beside the road. Fokkar Ali pointed pistol at his chest and took away a necklace of 1 Bori gold from his neck. Ruhul Amin took away Tk 70,000/- from the pocket of his pant. Jamal took away two rings from his fingers. Mostafiz took away Casio wristwatch from his hand. Jamal and Mostafiz beat him on the chest and back with the backside of Chinese axe. Hearing his outcry witnesses, namely, Ansar, Mannan and others arrived there and resisted the accused who then retreated. Hemayetuddin fell down to the ground being senseless. He was given first aid by local doctor Sahajahan and then he was sent to Morelgonj Hospital for treatment. After recovery he lodged FIR on 16.5.94 in Morelgonj thana with injury certificate and accordingly PS Case No 8 dated 16.5.94 was started.
After investigation charge sheet was submitted against the above four accused under section 394 Penal Code, showing them absconding. Subsequently they were arrested and brought before the Court.
Case record was sent to court of Sessions Bagerhat wherein it was registered as Sessions Case No 36/95. Thereafter the case was sent to the Court of Assistant Sessions Judge, Bagerhat, where in charge under section 394 of the Penal Code was framed against all above four accused after hearing the parties and accused pleaded not guilty and claimed to be tried.
Upon consideration of the evidence on record learned Assistant Sessions Judge found all four accused guilty under section 394 Penal Code and convicted and sentenced each of them to suffer rigorous imprisonment for 10 years and also to pay fine of Tk. 500/- in default to suffer rigorous imprisonment for 2 months more by judgment dated 14.2.99.
Being aggrieved the convict-appellants preferred this appeal.
Deliberation
We have considered the contentions of both sides and pursued the evidence on record.
It appears that informant Hemayetuddin (PWI) according to FIR (Ext 1) was coming home from his Morelgonj rice shop with Tk. 70,000/- in the pocket of his pant at 6 pm on 13.5.94 alone. In cross-examination PW 1 disclosed that he himself with his brother Abdul Halim and employee Labu counted the said amount of Tk 70,000/- in his rice shop and he put the same in the pocket of his pant when he started for home from the shop. But as a normal matter of security and precaution he did not think it proper to take with him any companion either his brothers Abdul Halim or his employee said Labu or any one else during his trip on the way from Morelgonj Bazar to his home village with such big amount of money with him. This apparently appears to be unusual and uncommon.
PW 1 informant stated in his deposition at the trial that he carried with him such amount of Tk 70,000/- in order to make payment for the purchase of paddy. Such fact was not stated in the FIR by him earlier. This appears to be on improvement of the prosecution case from what was earlier stated in FIR. Such endeavor is always discouraged by procedure.
P.W 1 stated in deposition as well as in FIR that during occurrence he became senseless. In cross-examination he stated that in the last part of the night following 13.5.94 he regained his sense when he saw his father, his brothers Abdul Halim, Moniruzzaman and chacha Saiful to whom he narrated the occurrence. But they were not examined as witness in the case. PW 10 chairman Sarwar Hossain chachata bhai of PW 1 informant
Hemayetuddin stated in his deposition that in the night of 13.5.94 (after dusk) he met Hemayetuddin in the Hospital when he told him (PW 10) about occurrence. So it appears that when informant told occurrence to father, brothers Abdul Halim Moniruzzaman, chacha Saiful and chachata bhai chairman Sarwar Hossain (PW 10) in the night of 13.5.94 one of them could easily lodge FIR about the occurrence in the thana and there was no need for Hemayetuddin himself to lodge FIR after recovery on 16.5.94 as stated in the FIR by PW 1 informant by way of explanation for the delay.
It appears from injury certificate Ext. 2 issued by PW 9 Dr Barendra Nath Mondal Medical Officer Health Complex Morelgonj that three injuries found in the body of PW 1 were simple in nature for which usually there was no urgency for admission of the injured in the Hospital. In Ext. 2 there is no note to the effect that the injured was admitted in Hospital bearing Registered No. 1089 dated 18.5.94 which appears to be obviously untrue as PW 1 was examined by PW 9 on 13.5.94. PW 9 Dr. Barendra Nath Mondal himself did not say a word in the deposition about admission of injured informant in the Hospital for treatment. Moreover no discharge certificate from the Hospital after treatment was produced at the trial. All above facts taken together will indicate that the plea of treatment having been admitted in Hospital till 16.5.94 was not true at all.
In any view the delay by 3 days for lodging FIR on 16.5.94 appears to be
not at all reasonably explained by the prosecution. Accordingly cited decision on behalf of appellant in the case of Abdul Latif @ Budu and others VS State reported in 44 DLR page 492 finds application. In above decision it has been held that the court always view first information report with grave suspicion when there has been unexplained delay in lodging it. It can be presumed that the delay has been used for manipulation of the prosecution story.
On perusal of FIR and deposition of PW 1 informant at the trial it transpires obviously that new facts are introduced at the trial, which were not disclosed in the FIR and due to such embellishment the prosecution case must be viewed with suspicion.
PW 7 Haji Serajuddin who introduced some new fact that PW 1 came with money to pay him but he did not receive money as it was just before dusk. PW 1 did not say anything like that. PW 9 is Dr. Barendra Nath Mondal who issued injury certificate Ext. 2 after examination of PW 1 informant when he found three simple injuries. PW 9 did not say anything about admission of the injured in to the Hospital although in Ext. 2 there is a note to the effect that injured was admitted bearing Registered no. 1089 dated 18.5.94 which appears to be untrue ex facie. PW 2 Abdul Salam driver who claims to be eyewitness about whom PW 1 for the first time stated in his deposition at the trial whereas no mention was made in FIR (Ext.1) about PW 2 who stated that the shirt of PW 1 was of radish colour whereas in Ext. 3 seizure list colour of the shirt was stated to be "Khoeri".
PW 5 Abdul Mannan and PW 6 Ansar Ali are stated to be eyewitness as per FIR (Ext.1) and deposition of PW 1. On perusal of FIR (Ext. 1) and the deposition of PW 1 it transpires that both PW 5 and 6 came hearing outcry of informant PW 1 after alleged attack, assault on the informant and looting of money, rings, necklace and Casio wristwatch from the informant. Therefore PW 5 and 6 were not likely to see the occurrence in details as they came after occurrence. PW 1 stated that he became senseless and fell down to the ground during attack and assault. Therefore PW 1 had no chance to tell PW
5 and 6 about the occurrence at that time. There is nothing in evidence of PW 5 and 6 that they met PW 1 in Hospital and heard occurrence from him there. So PW 5 and 6 had no reason to see the occurrence of attack assault on PW 1 and looting of money, rings, necklace and Casio watch from the informant. PW 5 stated that PW 1 informant had a shirt of white colour which does not corroborate the fact as to colour of the shirt stated in seizure list. From all above facts it appears that PW 5 and 6 were not in fact eyewitness to the occurrence.
So only eyewitness was PW 1 informant himself. We noticed earlier that PW 1 introduced some new vital facts in his deposition at the trial which were not stated in FIR (Ext. 1). PW 1 clearly stated in cross-examination that he himself wrote down the FIR (Ext. 1) sitting in his shop at Morelgonj but Ext. 1 shows that it was a typed FIR wherein informant simply put his signature. It shows that informant PW. 1 stated falsehood in his deposition on such above vital fact. Evidence of PW 1 therefore can not inspire confidence as a truthful witness.
It has been agitated on behalf of appellants that in the present case under section 394 Penal Code I.O. Mir Fasiar Rahman the then OC Morelgonj being vital witness was not examined at the trial and as a result the defence was deprived of the chance and opportunity to confront and cross-examine him on various aspects of the investigation works carried by him. Defence was accordingly highly prejudiced. It has also been argued that prosecution offered no reasonable explanation for such non-examination.
Reference has been made on behalf of the appellants to the decision in the case of AKM Reza Vs. State reported in 9 DLR page 595 wherein it has been held that failure by the prosecution to examine the investigation officer is a serious defect which can not be cured by any other way. Reference has also been made in such regard on behalf of appellant to the decision in the case of Jamil Munshi @ Jambu Vs. State reported in 33 DLR page 5 where in it has been held that the defence was prejudiced because of the nonexamination of the IO. Reference also has been made on behalf of appellants to the decision in the case of State Vs. Bashir and others reported in PLD 1997 (SC) page 408 wherein it has been held that investigation officer is not merely a formal witness. Several aspects of the clause which the prosecution witnesses try to conceal from the court can be brought out from the statement of investigating officer. Omission to examine the investigating officer puts the accused to serious handicap in defending the charge. It has been further held that failure by the prosecution to examine the investigating officer deprives the defence of their very valuable right and opportunity of shaking credit of the prosecution witnesses made to the police during investigation and their evidence in court. Such serious defect can not be cured.
We are of the view that above decisions find appropriate application in the present case inasmuch as prosecution in fact offered no reasonable explanation for non-examination of I O Mr Fasiar Rahman OC (CS witness no. 11) although from report it appears that on several occasions process of W/W had been issued to secure the presence of the IO. It is not so understood as to why the presence of the IO could not be secured through W/W if he be alive and within the country. If the presence of the IO be other wise impossible to be secured for any unavoidable reasons beyond control then the prosecution with explanation in such regard could have as an alternative measure brought any other police officer knowing the person and handwriting of the IO concerned as witness at the trial to be examined as witness offering opportunity to the defence for cross-examination on probable aspects of the investigation of the case. Prosecution appears to have taken no such endeavor and steps in such regard. As a result the defence was rightly deprived of the chance, and opportunity to confront and crossexamine the IO as agitated on behalf of the appellants. We are of view that the appellants were in fact highly prejudiced in their defence due to nonexamination of the IO of the case. Benefit of such situation will be available to the accused-appellants.
Decision
In above context we are of the view that learned court below had no sufficient legal evidence before it to find the accused-appellants guilty under section 394 Penal Code to record impugned order of conviction and sentence against them who accordingly are entitled to get benefit of doubt and acquittal. Impugned order of conviction and sentence can not thus be sustainable. Appeal must succeed.
In the result criminal appeal no 334/99 is-allowed. Impugned judgment, order of conviction and sentence dated 14.2.99 by the court below against appellants are set aside.
Mr Tobarak Hossain with Ms Nasima Akhter, Advocates for the appellant.
Mr Sheikh Abdul Awal, DAG, Ms Fazilatunnessa, AAG, and Mr SM Aminul Islam, AAG, for the State.