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Criminal Appeal No. 581 of 1961, decided on 23rd August 1963.

S. 145‑(Murder case)‑Statements of prosecution witnesses deposing to extra judicial confession of accused ‑ Serious discrepancy between such statement and that made in trial Court‑Witnesses not cross‑examined in Court as to vital statement before police‑Case remanded back for retrial- Criminal Procedure Code (V of 1898), Ss. 154, 161 & 288‑Penal Code (XLV of 1860), S. 302.

State v. Golam Mustafa (1949) 1 D L R 71 rel.

Serajul Huq for Appellant.

Abdur Rasheed for the State.

.‑This appeal by Ansar Sardar is against his conviction under section 302 of the Penal Code by the Sessions Judge of Dinajpur‑Bogra. He preferred the appeal from jail. Mr. Serajul Huq subsequently filed power for the appellant and appeared at the hearing.

2. The prosecution case, as detailed in the judgment of the trial Judge, is as follows : Some 20 or 25 years ago deceased Jana Sardar, younger brother of the complainant Pana Sardar of Mouza Dukuri, P. S. Badalgachi in the district of Rajshahi, married the daughter of one Isharat Akanda of Gholkuri, P. S. Adamdighi, district Bogra, and continued to live with his wife in the house of his father‑in‑law in Gholkuri, which is at a distance of about eight miles from Dudkuri. Jana Sardar's wife died some 3 or 4 years back. Appellant Ansar Sardar is Jana Sardar's son. Isharat Akanda made a gift of about 6 bighas of land in favour of the appellant and his brother Sekandar Sardar. Against the wishes of Isharat, Jana Sardar sold away, through the appel lant, 3 bighas out of the 6 of bighas gifted land. Over this, Isharat became very angry with Jana Sardar. On the 15th of Ashar, 1368 B. S. corresponding to the 30th of June 1951, Pana Sardar happened to visit his sister Shamala Bibi in village Marma, and was informed by her that their brother Jana Sardar was missing for some time. On the day following, i.e., on the 16th of Ashar he hastened to the house of Isharat Akanda at Gholkuri and unsuccessfully made enquiries about his brother Jana Sardar. He then went back to his sister at Marma, spent the night in her house, and again went to Ghulkuri on the following day. He failed on the day also to obtain any clue about the whereabouts of Jana Sardar. He then went to the police station and lodged a missing information. On the 18th of Ashar, 1368 B. S., he again went to Gholkuri, accompanied by Basir Mondal of Marma, and called a salish at the house of P. W. 2 Anisuddin Mondal where both the appellant and Isharat Akanda were called. At the Salish P. W. 2 Anisuddin Mondal, P. W. 3 Khorshed Ali Kabiraj, P. W. 4 Basiruddin Mondal, P. W. 5 Nashiruddin Mondal, P. W. 6 Mosharaf Pramanik and others were present. Appellant Ansar Sardar confessed before the Salish that on the 3rd of Jaistha preceding at about 10 or 11 a. m. when his father Jana Sardar was sleeping in the Baithok‑khana portion of the west bhiti hut, the other portion being used as a cowshed, he killed his father by striking him with a spade. He also stated before the Salish that his maternal grand‑father Isharat Akanda wrapped the dead body with a kantha; put it into a gunny bag and then buried it in a pit in a corner of the cowshed, wherefrom the dead body was again removed after about a month or so by both himself and Isharat Akanda and re‑buried in Gholkuri Khari, (water channel), which is about 9 rashis off to the south of Isharat Akanda's house. After this confession, appellant Ansar Sardar and Isharat Akanda were taken to the Gholkuri Khari, where Ansar Sardar pointed out the spot where the dead body was buried. This happened shortly before midnight. On the day following, i.e., on 19th of Ashar, 1368 B. S., corresponding to the 4th of July 1961, P. W. 1 Pana Sardar went to the Adamdighi police station and lodged a first information report at 10‑30 a. m. An Assistant Sub‑Inspector of Police, who recorded the first information report, accompanied by P. W. 1 Pana Sardar and a constable, went to Gholkuri. Ansar Sardar pointed out the spot in the Khari where the dead body was buried. A mehtar was called, and he dug the earth and took out the dead body, which was recog nised by the witnesses to be that of Jana Sardar. The Assistant Sub‑Inspector of Police and the leading people of the village then visited the house and the cowshed‑cum‑balthak‑khana and found a newly filled up pit in a corner of the cowshed. The Assistant Sub‑Inspector of Police then prepared a sketch map of Gholkuri Khari. The dead body was forwarded to the Bogra morgue for post‑mortem examination The case was investigated by Sub Inspector Mohiuddin Ahmed, Officer‑in‑charge of Adamdighi Police Station, who drew up a sketch map of the place of occurr ence, namely, of the house indicating several huts standing thereon including the hut, a portion of which was used as Baithak‑khana and another as a cowshed.

3. It can be pointed out here that the trial Judge is not correct in so far as he thinks that the prosecution story was that the police officer who took out the dead body from the water channel was the officer who went to the house and found the pit in the cowshed. In fact, the learned Judge himself referred to the Investigating Officer, towards the close of his judgment, as the officer who discovered the pit in the cowshed.

4. As we have already said, the petition of appeal was forwarded from jail. In that petition it has been stated that Isharat Akanda made a gift of 8 bighas of land in favour of the .appellant and of 6 bighas in favour of his younger brother Sekandar, by registered deeds. About 18 months after that, on the advice of P. W. 2 Anisuddin Mondal, P. W. 3 Khorshed Ali Kabiraj, P. W. 4 Basiruddin Mondal, P. W. 5 Nasiruddin Mondal and P. W. 6 Mosharaf Ali Pramanik, Isharat Akanda made a wakf of 6 bighas land for a local mosque, by taking 3 bighas from the property earlier gifted to the appellant and 3 bighas from that gifted to his younger brother Sekandar Sardar. The appellant, his brother and his father having protested against this wakf, Isharat Akanda got the entire property recorded in his own name during the recent settlement operations, and obtained a porcha in his favour from the settlement authorities. Appellant Ansar Sardar, his brother and his father then went to Bogra and submitted a petition to the R. C. O. against the entry in the name of Isharat Akanda. They also filed a civil suit, Isharat Akanda twice cut away the crops of those lands with the help of local people and tried to starve the appellant, his brother and his father to death. Ultimately, the civil Court gave a decree in favour of the appellant and his brother. The appellant and his brother, each, then sold l1 bighas of land to Sabiruddin Pramanik of Marina and Kaser Pramanik of Saraswati. All this infuriated Isharat Akanda and other villagers who became inimical towards the appellant, his brother and his father. It has been further stated in his petition that the appellant was in the house of his phupoo (Paternal aunt) when the occurrence took place and that he also told her later about the missing of his father. Subsequently, P. W. 1 Pana Sardar and the appellant went to the police station and lodged the missing information. It has also been stated in his petition that the appellant never made any confessional statement.

5. The defence case as sought to be made out in Court, in cross‑examination of prosecution witnesses, is a simple denial of the charge, and also that the appellant never made any extra -judicial confession. In his examination under section 342 of the Code of Criminal Procedure also the appellant denied having made any confession.

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.

‑I agree.

S. Q. Appeal allowed.

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