May 25, 2013 | 07:42 PM (BD Time)
25 May, 2013 Saturday
Absconsion indicates to guilty mind
High Court Division
Afzal Hossain Ahmed-J.
Md. Emdadul Haque Azad-J.
CRIMINAL APPEAL NO. 899 of 1999 (Against the judgment and order of conviction and sentence dated 8.3.1999 passed by the Sessions Judge, Chandpur in Session Case No. 40 of 1997.)
Humayun @ Humayun Bepari
The State ...............Opposite party.
For the Appellant : None appears.
For the State : Mr. Md. Ensanuddin Sheikh, Assistant Attorney-General with Mr. Nurul Islam Matubbor, Assistant Attorney-General.
Judgment: March 7, 2011
Penal Code 1860-
Section 302- Offence is converted into one u/s 306-
In this case convict appellant was convicted and sentenced u/s 302 by the trial court for commission of murder of his wife by strangulation. The postmortem examination report including the viscera report did not support prosecution case and on the contrary opined that the deceased died by taking poison.
The medical report found on the right side of the neck of the deceased one ecchymosis size 1/1/2X1/1/2. The convict appellant absconded immediately after the occurrence and remained on absconsion during trial and failed to offer an explanation as to how his wife met with death. The conduct of the appellant indicates to his guilty mind.
The learned judges of the High Court Division upon consideration of the facts and circumstances and the evidence on record held that by reason of his ill treatment and torture the deceased was compelled to commit suicide by taking poison and on that consideration held the convict appellant guilty of the offence u/s 306 of the Penal Code and reduced the sentence to 5(five) years imprisonment.
Although it is alleged in the F.I.R. that the victim was done to death by her husband and other accused persons by strangulation but the Post Mortem Report does not support that claim of the prosecution rather, it is apparent from the testimony of P. W.8, the Doctor who held the Post Mortem Examination on the dead body of the victim Hanufa Akhter as well as from the chemical report of Viscera that the death was caused by insecticide poisoning. There is also no allegation from the side of the prosecution that the deceased did not take the poison by herself but it was administered or pushed forcibly on her mouth before she met her death. There is also no evidence to that effect from the side of the prosecution ............(Para 14)
However, admittedly, the victim, Hanufa Akhter met her death while she was living with her husband in her husband's house and in such circumstances the husband owes an explanation as to how his wife met her death. Inaction of her husband together with his failure to offer a satisfactory explanation indicates and points at the guilt of the husband. Here in the instant case, admittedly, we find that immediately after the death of his wife, Hanufa Akhter the appellant Humayan without discharging his responsibilities as the husband not only fled away from his house but also remained absconded till after the trial was over .... (Para 15)
It is quite natural that the relations of the accused husband will not come to support the prosecution case. In such a case the circumstantial evidence leading to the irresistible conclusion as to the guilt of the accused husband can well be relied upon and safely form the basis of his conviction ........(Para 16)
It is well settled that ordinarily an accused has no obligation to account for the death of his wife for which he is placed on trial. The death of the wife having taken place while she was living with her husband, the convict-appellant Humayun, in the same house the convict-appellant was under an obligation to explain how his wife had met with her death. In the absence of any explanation coming from his side and when P. W.8 while holding autopsy found mark of injury on the right neck of the deceased, coupled with the conduct of the husband, as above, it seems none other titan the husband convict appellant Humayun was responsible for inflicting such assaults on the right side of the neck of the victim and thereby the husband-appellant abated her in committing suicide by taking insecticide poison. Thus, we find that the offence committed by the husband, convict appellant Humayan comes within the mischief of Section 306 of the Penal Code instead of 302 of the Penal Code.
..... (Para 17)
(1) The convict-appellant Humayun @ Humayun Bepari is found guilty under Section 306 of the Penal Code instead of Section 302 of the Penal Code and he is convicted thereunder and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Tk. 3000/-, in default, to suffer rigorous imprisonment for six months more, instead of imprisonment for six and to pay a fine of Tk. 5000/- in default to suffer R.I. for one year more. (2) The convict-appellant is entitled to get the benefit of Sub-Section (1) of Section 35A of the Code of Criminal Procedure ..........(Para 18)
AFZAL HOSSAIN AHMED-J: This appeal, at the instance of the convict Humayun @ Humayun Bepari, is directed against the impugned judgment and order dated 8.3.1999 passed by the learned Sessions Judge, Chandpur in Sessions Case No. 40 of 1997 arising out of Motlob Police Station Case No.2 dated 5.4.1995 convicting the accused-appellant Humayun under Section 302 of the Penal Code and sentencing him to suffer imprisonment for life and also to pay a fine of Tk. 5,000/ - only, in default, to suffer rigorous imprisonment for one year more.
2. The prosecution case, in brief, is that one Md. Abdul Ali lodged an ejahar with Motlob Police Station , District Chandpur on 4.4.95 alleging, inter alia, that his sister Hanufa Akhter was given in marriage with accused Humayun about 4 years ago. Accused Humayun, since the marriage,
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