When altering sentence is justified
(From previous issue) :
PWs 2, 3, 4 who are his sons and PW 5 who is the wife of deceased, Abdur Rakib. These witnesses claimed that they were present at the house at the time of the occurrence and saw the occurrence in the light of electricity. Had they seen the appellant to shoot at the deceased as deposed by them in Court, they would have definitely stated so to PW 1 and in that case PW 1 would have stated the same in the FIR. From the deposition of PW 1 it is also apparent that besides the appellant other accused had also guns and one of them by shooting from his gun broke the ventilator of the Baithakkhana.
13. From the post-mortem report it appears that the deceased sustained the following injuries:
“(1) Multiple (30) punctured wound at right 4-7th intercostal space with area involving 3″ x 2” x upto chest wall depth.
(2) Oval penetrating wound at left 7-10th inter-costal space on mid axillary line 2-1/2″ in diameter upto chest cavity depth.
(3) Penetrating wound at left sub-clavicular region 2-1/2″ X 2″ x chest cavity depth.
(4) Incised wound (deep) at left knee 3″ x 1-2/1″ x3″.
(5) Multiple (12 punctured would middle of rt. arm 1/3 diameter up to skin muscle depth.
(6) Multiple penetrating wound (2) at scalp ¼, indiameter upto scalp depth and ten punctured would below knee ¼ indiameter upto variable depth in skin and muscle.”
14. The Doctor opined that death was caused “due to shock and haemorrhage as a result of injury to the left lung, splint stomach which were ante mortem and homicidal in nature caused by shot gun fire injury.” The post mortem report shows that besides the “shot gun” fire injuries the deceased sustained other injuries.
15. FIR is the earlier version of the prosecution case and the statements made therein can be looked into with a view to find the prosecution story as a whole as set out in the earlier stage though it cannot be used in any way as substantive piece of evidence. And veracity of the testimony of its maker can very well be adjudged by looking at the material contradictions in his testimony from the FIR. Here, in the instant case as pointed out hereinbefore, the informant, an eye witness to the occurrence, though claimed to have seen the occurrence and recognized the accused including the appellant in the light of the electricity did ‘not attribute any overt act of shooting accused wise, but while he deposed he did so and this creates a prima-facie doubt as to the fact whether the appellant fired twice at the deceased Rakib as alleged by PW 1 and as sought to be corroborated by the other witnesses. It is also pertinent to state that the High Court Division disbelieved the testimony of PWs 1, 2, 3,4 and 5 that Talebul shot at the mouth of deceased Neharunnesa, wife of PW 1 and accordingly, acquitted him of the charges brought against him with the finding that “So, the ocular evidence coming from the mouths of PWs 1,2,3,4 and 5 in respect of gun shot by Talebul stood totally nullified by the evidence of Doctor PW12.”
16. Considering the above state of evidence, it appears to us that the appellant could not be solely saddled with the “shot gun fire injury on the deceased, Abdur Rakib” resulting his death, particularly when the other accused also had guns and they fired from their guns as well. In view of the above, it does not appear to us that the High Court Division took the right decision in affirming the sentence of death awarded against the appellant by the learned Sessions Judge. It further appears that the appellant is in death cell since 12-8-2002 and by now he has suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the context, we are of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine.
17. Accordingly, this appeal is allowed. The sentence of death awarded against the appellant by the learned Sessions Judge as affirmed by the High Court Division is altered into one for imprisonment for life and he is also to pay a fine of Taka 10,000 in default to suffer rigorous imprisonment for 6(six) months more.
The concerned Jail Authority is directed to shift the appellant to the convict wards from the death cell.
(Concluded)
PWs 2, 3, 4 who are his sons and PW 5 who is the wife of deceased, Abdur Rakib. These witnesses claimed that they were present at the house at the time of the occurrence and saw the occurrence in the light of electricity. Had they seen the appellant to shoot at the deceased as deposed by them in Court, they would have definitely stated so to PW 1 and in that case PW 1 would have stated the same in the FIR. From the deposition of PW 1 it is also apparent that besides the appellant other accused had also guns and one of them by shooting from his gun broke the ventilator of the Baithakkhana.
13. From the post-mortem report it appears that the deceased sustained the following injuries:
“(1) Multiple (30) punctured wound at right 4-7th intercostal space with area involving 3″ x 2” x upto chest wall depth.
(2) Oval penetrating wound at left 7-10th inter-costal space on mid axillary line 2-1/2″ in diameter upto chest cavity depth.
(3) Penetrating wound at left sub-clavicular region 2-1/2″ X 2″ x chest cavity depth.
(4) Incised wound (deep) at left knee 3″ x 1-2/1″ x3″.
(5) Multiple (12 punctured would middle of rt. arm 1/3 diameter up to skin muscle depth.
(6) Multiple penetrating wound (2) at scalp ¼, indiameter upto scalp depth and ten punctured would below knee ¼ indiameter upto variable depth in skin and muscle.”
14. The Doctor opined that death was caused “due to shock and haemorrhage as a result of injury to the left lung, splint stomach which were ante mortem and homicidal in nature caused by shot gun fire injury.” The post mortem report shows that besides the “shot gun” fire injuries the deceased sustained other injuries.
15. FIR is the earlier version of the prosecution case and the statements made therein can be looked into with a view to find the prosecution story as a whole as set out in the earlier stage though it cannot be used in any way as substantive piece of evidence. And veracity of the testimony of its maker can very well be adjudged by looking at the material contradictions in his testimony from the FIR. Here, in the instant case as pointed out hereinbefore, the informant, an eye witness to the occurrence, though claimed to have seen the occurrence and recognized the accused including the appellant in the light of the electricity did ‘not attribute any overt act of shooting accused wise, but while he deposed he did so and this creates a prima-facie doubt as to the fact whether the appellant fired twice at the deceased Rakib as alleged by PW 1 and as sought to be corroborated by the other witnesses. It is also pertinent to state that the High Court Division disbelieved the testimony of PWs 1, 2, 3,4 and 5 that Talebul shot at the mouth of deceased Neharunnesa, wife of PW 1 and accordingly, acquitted him of the charges brought against him with the finding that “So, the ocular evidence coming from the mouths of PWs 1,2,3,4 and 5 in respect of gun shot by Talebul stood totally nullified by the evidence of Doctor PW12.”
16. Considering the above state of evidence, it appears to us that the appellant could not be solely saddled with the “shot gun fire injury on the deceased, Abdur Rakib” resulting his death, particularly when the other accused also had guns and they fired from their guns as well. In view of the above, it does not appear to us that the High Court Division took the right decision in affirming the sentence of death awarded against the appellant by the learned Sessions Judge. It further appears that the appellant is in death cell since 12-8-2002 and by now he has suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the context, we are of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine.
17. Accordingly, this appeal is allowed. The sentence of death awarded against the appellant by the learned Sessions Judge as affirmed by the High Court Division is altered into one for imprisonment for life and he is also to pay a fine of Taka 10,000 in default to suffer rigorous imprisonment for 6(six) months more.
The concerned Jail Authority is directed to shift the appellant to the convict wards from the death cell.
(Concluded)