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Criminal Appeal No. 229 and Death Reference No. 7 of 1968, decided on 19th July 1968.

‑Minor omissions‑ Witness (wife of deceased) stating before Sessions Court that deceased was a Hakim‑Such fact neither recorded in F. I. R. nor stated by her before lower Court‑Such minor omission, held, does not amount to contradiction affecting evidence of witness.

S. 288‑Transfer of evidence in lower Court to Sessions Court file‑Requirement of law‑Court, before transferring evidence, must be satisfied by proof on record regarding fulfilment of conditions laid down in S. 33, Evidence Act‑Whereabouts of witness not known‑All efforts to procure his presence before Sessions Court having failed --Sessions Court, after recording reasons, transferring lower Court evidence of such witness‑Held, conditions of S. 33, Evidence Act, in circumstances, fully complied with and evidence of witness rightly transferred to Sessions Court‑Evidence Act (I of 1872), S. 33.

S. 161‑Statement before police officer under S. 161‑No evidence at all‑Purpose of such statement is to contradict prosecution witness‑Witness can however be contradicted only after such statement has been duly proved and provisions of S. 145, Evidence Act complied with --Mere omission of a statement from record‑Not necessarily a contradiction‑Omission in such statement recorded in a boiled form‑Does not amount to contradiction‑Evidence Act (I of 1872), S. 145.

The alleged contradictions were sought to be established upon certain questions which were put to witnesses as to whether they had made certain statements to the police and upon their saying that they made such statements, the Investigating Officer in course of his cross‑examination was asked as to whether a particular witness had made a particular statement and he stated in some cases that the particular witness had stated so to him though it was not recorded in his statement and in some cases he stated that it was not recorded in the statement of the witness made under section 161, Cr. P. C. From this, it was argued that the contradictions have been established and the benefit of the contradictions should go to the accused:

Held, in this connection it is to be pointed out that the Statement under section 161, Cr. P. C. is not at all evidence. The only purpose of such statement is to contradict the prosecution witness and that also can be done only after the statement has been duly proved and the provision of section 145 of Evidence Act has been duly complied with. In the present case since no such statements were made or recorded, the statements could not have been proved and strictly speaking it is difficult to hold that a mere omission must also be a contradiction. An omission of a statement from the record is only of value if it is of such importance that the witness would have almost certainly made it and the police officer would have certainly recorded it, had it been made. The omission in the statement under section 161, Cr. P. C. cannot in the circum stances be used for proving contradiction. The practice of proving omissions in the statements are generally to be discouraged and without being known as to whether the Investigating Officer is speaking from his memory or speaking by reference to his diary or the statement recorded by him, it is difficult to say that it is a contradiction of a previous statement. An omission from the statement recorded in a boiled form, does not amount to contradiction and the alleged contradiction sought to be taken from the omission of the statement cannot in the instant case be proved under section 162, Cr. P. C. to hold that contradiction in accordance with the provision of section 162, Cr. P. C. has been established.

Tara Mia and another v. The State 7 D L R 539 rel.

S. 302‑Witness‑Relationship with deceased alone no ground to discard evidence of a witness where circumstances show such person to be most natural and competent witness of case.

‑Delay in lodging of-‑Not, by itself, sufficient to reject prosecution case‑Murder occurring at 10 a.m.‑Wife of deceased lodging F. I. R. next day at about 8 a.m.‑Evidence on record showing that all adult family members were away and wife, in a fit due to her husband's death, kept waiting for male members and then proceeding to police station about 12 miles away, accompanying male members, next morning before dawn‑Reasons of delay mentioned also in F. I. R. Explanation for delay, held, reasonable and satisfactory‑‑Delay, in circumstances, held, immaterial.

S.302/34‑Murder‑Sentence‑‑ Young age alone‑Not always a good reason for lesser sentence-- Question of sentence to be considered in light of gravity of offence and background of facts of case‑Accused a matric student 20 years age dealing fatal blow on deceased (unarmed and begging for life) with deadly weapon after deceased had been attacked and injured by other co‑accused‑Facts showing pre planning of offence‑Held, presence of other co‑accused, in circumstances, does not minimise gravity of offence‑Accused, in circumstances, held, rightly convicted and sentenced to death‑Court, however, recommended sympathetic consideration of his mercy petition if filed.

A. H. Mirza and Khaled Hamidul Huq for Appellant Condemned‑Prisoner).

A. T. M. Masud, Deputy Legal Remembrancer and Maksudur Rahman for the State.

The Sessions Judge of Comilla has made this reference under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed on one Abdul Hashim. The prisoner and his two associates Mon Mia alias Mohan Mia and Abdur Rahman alias Rekman who were sentenced to transportation for life each have preferred an appeal being No. 229 of 1968 challenging their conviction and sentence under section 302/34 of the Penal Code. Both the reference and the appeal have been heard together and are disposed of by this judgment.

2. Deceased Noazesh Ali, an ex‑military-man was a Hakim' by profession and used to sell medicines at Kaitala Bazar and elsewhere. The accused persons were the close neigh bours and also his kinsmen. The occurrence was at village Goali situated at a distance of about 12 miles from Nabinagar P. S. in the District of Comilla.

3. The prosecution case, in short, is that on Monday, the 3rd Poush, 1373 B. S. (corresponding to 19th December 1966) at about 10 or 10‑30 a. m. the deceased Noazesh Ali was going to Kaitala Bazar by getting out from his house by the eastern path‑way and then was going to the north. He was pissing by the ghata of the accused persons. P. W. 1 Jamila Khatun, immediately after the departure of her husband Noazesh Ali, found that a bottle for mustard on was left there by her husband. She took the bottle and followed her husband and on coming out on the path‑way, saw that accused Mon Mia, and Abdur Rahman and absconding accused Mon Mia assembled in their ghata and the deceased was going away at a little distance. Accused Mon Mia had a Tekatia (a weapon with three spear head fixed on the head of a Nali bamboo), accused Hashim had a big dao and accused Rehman had a small dao in right hand and a pointed muli bamboo in his left hand. Accused Taru had nothing in his hand. At the instance of Taru, accused Mon Mia called Noazesh Ali. Noazesh Ali turned back, saw the weapons in the hands of the accused and getting down from the path‑way he went to the field and started running towards the south‑east for fear of his life. The four accused chased him. P.W. 1 raised alarm when her children came out and they also wised hue and cries. The deceased was also crying. Being chased by the accused, Noazesh Ali reached the paddy land of Saheb Ali. At that time accused Mon Mia surpassed him by the right and surrounded him from a distance of about 15 cubits in front. Finding himself in a helpless position, Noazesh Ali with folded hands begged for his life, but on the order of accused Taru, accused Mon Mia hurled the Tekatia which struck the right knee of Noazesh Ali. Noazesh Ali bent down to extract the Tekatia and at that time accused Abdul Hashim delivered a big dao blow on the back of his head. With his face lifting upwards Noazesh Ali was about to fall and at that moment accused Rekman delivered a dao blow on his left cheek. Noazesh Ali fell on the ground with bleeding injuries, trembled and died there. The accused then took their weapons and ran back to their house. P. Ws. 1, 2 and 3 and other P. Ws., namely, Shahid Mia (P. W. 5), Mafizul Islam Choudhury alias Chunnu Mia (P. W. 6), Rezon Mia (P. W. 4), Rupa Mia (whose evidence in the lower Court has been put in under section 33 of the Evidence Act) witnessed the occurrence. Among them Rezon Mia and Chunnu Mia requested the accused not to kill Noazesh Ali. In the meantime some other people including Taru, Mizan, Hakim, Chand Mia also came to the spot on hearing the hue and cry. They could not go near the accused for fear of the weapons. When the accused persons left the place of occurrence they went near the dead body and at the instance of Channu Mia alias Mafizul Islam Choudhury, the dead body was carried home by P. Ws. Mizan Mia, Chand Mia, Rezon Mia and Rupa Mia.

4. The further case of the prosecution is that about 3/4 days before this occurrence one pet cat of accused Mon Mia ate the dry fish of P. W. 1 Jamila Khatun and she sustained a loss. P. W. 1 Jamila Khatun approached Mon Mia over the issue and Mon Mia abused her in filthy language. She reported this matter to her husband when he came home and on the following day the deceased Noazesh Ali went to the house of Mon Mia and asked him as to why he abused P. W. 1. Over this there was altercation and quarrel between the deceased and the accused. The accused became angry with Noazesh Ali and threatened that they would kill him and they actually murdered Noazesh Ali out of that grudge.

5. The prosecution also stated that due to absence of the adult male members from the house, P. W. 1 was at a fix owing to her husband's death and hence there was a delay in lodging the First Information Report. P. W. 1 Jamila's debor Abu Taher and niece"s husband Khorshed Mia went to Brahmanbaria and another debor Abdul Gani was not at home. Abu Taher and Khorshed Mia returned home at about 10/12 p. m. at night and thereafter in the later part of the night P. W. 1 accompanied by Abu Taher, Khorshed Mia and Kitab Ali left for the Thana and lodged the First Information Report at 08‑05 hours next morning.

6. The Investigating Officer came to the locality on 20‑12‑66 at about 4‑30 p.m. held inquest over the dead body of the deceased, went to the place of occurrence, seized blood‑stained paddy plants and earth, prepared the rough sketch map, examined the witnesses and after completion of investigation submitted charge‑sheet against the three accused persons along with the absconding accused Taru Mia under section 302/34 of the Penal Code.

7. A preliminary enquiry was held by Mr. M. A. Hye, Magistrate, 1st Class, Brahmanbaria and a prima facie case against the accused persons having been made out he committed them to the Court of Sessions to face trial under section 302/34 of the Penal Code. The other accused Taru Mia against whom charge‑sheet was submitted was found absconding since then.

8. The defence case, in short, is that the deceased Noazesh Ali was either a thief or receiver of stolen properties and he used to harbour thieves. Sometime before the occurrence, seven motkas of stolen dry fishes of Manindra Das Kaibarta of Ballavpur were recovered from the house of Noazesh Ali at the instance of accused Rekman and others. Khorshed Mia, a relation of the deceased living in the same bari is a notorious thief. Noazesh Ali's other relations are also thieves. Along with these relations and with other accomplices Noazesh Ali used to make his adventures at Kaitala village which is a place for notorious thieves. It happened that some time ago a furious mob of thousand people slaughtered some 23 thieves at Kaitala Bazar on a single day. Deceased Noazesh Ali was associated with those thieves. On the whole day of occurrence Noazesh Ali was found at home and at night he went to Kaitala and was killed by some unknown people and his body was left in the field. It is due to this fact the First Information Report was delayed as it was lodged in the morning of 20‑12‑66, though it has been alleged that the occurrence took place on 19‑12‑66 at about 10/10‑30 a. m. As the accused persons created difficulties for deceased Noazesh Ali and his relations in their unsocial activities, these accused persons have been falsely implicated at the instance of P. W. Serajul Islam and others who are related to deceased Noazesh Ali and who did not like that the accused should socially insult Noazesh Ali. In the trial before the Sessions Judge, the accused were defended by two learned Advocates engaged by them.

9. To substantiate the charge against the accused persons the prosecution has examined 17 witnesses and also put in the lower Court evidence of one Rupa Mia under section 33 of the Evidence Act.

10. The trial was held with the aid of four assessors and all of them unanimously found three accused persons guilty under section 302/34 of the Penal Code.

11. The learned Sessions Judge, on appraisal of the evidence, accepted the unanimous opinion of the assessors and convicted them accordingly and sentenced the prisoner Abdul Hashim to death and the two co‑accused Mon Mia alias Mohan Mia and Abdur Rahman alias Rekman to transportation for life each under section 302/34 of the Penal Code.

12. Mr. A. H. Mirza, the learned Advocate appearing for the condemned‑prisoner as well as the other two appellants has taken us through the entire evidence and the other records including the judgment pronounced by the learned Sessions Judge. He has contended that the prosecution has failed to prove the case beyond reasonable doubt and the accused persons are at least entitled to benefit of doubt.

13. There is no dispute with regard to the fact that Noazesh Ali is dead and he died as a result of the injuries inflicted upon him. The doctor P. W. 8 who held the post‑mortem examination over the dead body of Noazesh Ali found the follow ing injuries:

"(1) One incised wound 6 X " on the middle part of the right side of the head and upper part of the back surface of the head into bone cut completely the brain and substance came out through this cut portion.

(2) One incised wound 3" x 1" bone cut partially on the left angle of the mouth and left side of the face.

(3) Two punctured wounds 1/5" x 1/5" x " each on the anterior surface of the lower third of the right thigh."

14. According to the opinion of the doctor the death of Noazesh Ali was due to shock and haemorrhage as a result of the injuries described above which were ante‑mortem and homicidal in nature. The evidence of the doctor coupled with the evidence of the local witnesses has satisfactorily proved this aspect of the case.

15. Now the question for consideration is whether the accused persons caused the said injuries which took the life and whether the accused persons committed the murder intentionally and knowingly causing the death of Noazesh Ali in furtherance of common intention of them all at the place, time and in the manner as alleged by the prosecution.

16. Out of the seventeen witnesses examined in the case P. Ws. 1, 2, 3, 4, 5 and 6 are eye‑witnesses and the rests are corroborative witnesses. Among the eye‑witnesses P. W. 1 is the wife, P. W. 2 is the daughter and P. W. 3 is the son of the deceas ed and P. Ws. 4, 5 and 6 are the close neighbours of both sides. Among the corroborative witnesses P. W. 7 is the member and P. W. 11 is the Chairman of the local Union Council, P. Ws. 12, 13, 14, 15 and 16 are the neighbours of the parties, P. W. 8 is the doctor who held the post‑mortem examination and P. Ws. 9, 10 and 17 are the police personnels. Witness Rupa Mia, whose lower Court evidence has been put in under section 33 of the Evidence Act is also a neighbour of the deceased as well as the accused persons.

17. P. W. 1 Jamila Khatun has given the prosecution case in detail from beginning to end. She has stated in her deposition that on the 3rd Poush, 1373 B. S. (19‑12‑66) at about 10 a. m. the deceased Noazesh Ali left his house for Kaitala Bazar. He went to the eastern path‑way and was going towards the north by the ghata of the accused persons. Soon after the departure of Noazesh Ali she noticed that her husband had left behind the bottle for mustard oil. She took the same and went behind him by the same path‑way to make it over to him. When she came on the eastern path‑way she saw her husband a little far from the ghata of the accused persons and the accused Mon Mia, Hashim, Rahman and the absconding accused Tarn assembled in their ghata. Accused Mon Mia had a Takatia, Hashim had a big dao, Rahman had a small dao and a pointed mini bamboo and absconding accused Tarn had nothing in his hand. Taru told others that "opportunity has come". On hearing this Mon Mia called Noazesh Ali. Noazesh Ali turned back and saw the weapons in the hands of the accused. He at once left bazar road, got down on the field and started running towards the south‑east for fear of life. The four accused persons ran behind Noazesh Ali through the field and surrounded him. She raised alarm and ran behind the accused. On hearing the alarm her son and daughter came out and they also raised alarm with her. Noazesh Ali cried and begged for his life. But as soon as Noazesh Ali reached the paddy land of Saheb Ali accused Mon Mia went ahead of him. Accused Taru then ordered kill him'. Accused Mon Mia then dealt a Tekatia blow on her husband's right leg. Noazesh Ali bent down to extract the Tekatia and at that time accused Hashim dealt a dao blow on the back of his head with a big dao. On getting this dao blow he was about to fall down on the ground. At that time accused Rahman dealt a dao blow on his left cheek. He fell down on the ground and soon after died. Accused then went away with their weapons. The witness saw the entire occurrence from a distance of about 10 cubits. Her son (P. W. 3), daughter (P. W. 2) also reached there by that time and saw the occurrence. Chunnu Mia alias Mafizul Islam Choudhury (P. W. 6), Rezon Mia (P. W. 4), Shahid Mia (P. W. 5) also witnessed the occurrence. Other people, namely, P. W. 13 Chand Mia, P. W. 14 Abdul Hakim, P. W. 15 Mizan Mia, P. W. 16 Tajul Islam Choudhury alias Tarn Mia also came on hearing the hue and cry and she narrated the occurrence to them. Thereafter under order of P. W. 6 Mafizul Islam Choudhury, P. Ws. Mizan, Chand Mia, Rezon Mia and Rupa Mia carried the dead body of Noazesh Ali to home. Many other neighbours and villagers came subsequently and she and her children narrated the occurrence to them.

18. The witness in her deposition has also stated that 3 days before the occurrence that is Saturday preceding the date of occurrence a pet cat of accused Mon Mia ate her dry fish and she questioned Mon Mia about it but Mon Mia abused her. She reported this fact to her husband Noazesh Ali and the deceased went to Mon Mia's house in the morning of Sunday and asked him as to why he abused his aunt and over this there was a quarrel between the deceased and the accused. The accused persons thereafter threatened Noazesh Ali to kill. Accused Mon Mia and Rahman are brothers and accused Hashim is Rahman's son.

19. The witness further stated that she could not go to the Thana to lodge the First Information Report earlier as all the adult male members of the house were away. Her debor Abu Taher and niece's husband Khorshed Mia went to Brahmanbaria and returned home at about 10/12 p.m. at night. The other debor Abdul Gani was also away. Her Bhashur Kitab Ali used to live in a different village at Kaitala and he came to the scene in the evening of the day of occurrence. She left for the Thana on the last part of the night in the company of Kitab Ali, Abu Taher and Khorshed Mia and reached there at 7‑30 or 8 a.m. and then lodged the First Information Report, Exh. 3 at 08.05 hours next morning. The Investigating Officer carne to the locality at about 4‑30 to 5 p.m. held inquest over the dead body, went to the place of occurrence and seized blood‑stained earth and paddy plants on her pointing out the place.

20. The witness was subjected to lengthy cross‑examination by the defence but she stood well in the test. There is practically nothing in the cross‑examination to impeach the veracity of the witness. On a question put to the witness in cross‑examination she replied that she did not remember if she particularly mentioned Saturday as the day when Mon Mia's cat ate her dry fish to the Investigating Officer or in the First Information Report or in the lower Court. From this the defence wanted to say that the witness contradicted the First Information Re port and her earlier statement before the Committing Court. In the First Information Report she stated that the pet cat of Mon Mia ate the dry fish 3/4 days before the occurrence. In the Committing Court also she said that the cat of Mon Mia ate the dry fish 3/4 days before the occurrence. The occurrence took place on Monday, the 19th December 1966. The witness states in Court that the cat ate the dry fish on Saturday which is the 3rd day prior to Monday, the date of occurrence. This being the position there is practically no inconsistency in her state ments. Besides this is a very minor point and it cannot bring any reflection on her evidence.

21. Another criticism of the defence is that the witness stated in Court that her husband was a Hakim, but neither in the First Information Report nor in the lower Court she stated that her husband was a 'Hakim' and he used to sell medicines. The First Information Report and the lower Court evidence put in under section 288, Cr. P. C. show that she omitted to say so there. This is at best an omission and an omission of minor s nature like the present one does not amount to contradiction and it does not affect her evidence at all. It has also been argued that in the First Information Report she stated that the accused attacked the deceased when the latter reached the land of Siddique but in the Court she stated that the place of occur rence was Saheb Ali's land and that the witness thus contradicted herself on a vital point. It appears from her evidence that on a further question put by the defence the witness stated that she saw Siddique cultivating the land where the occurrence took place. Siddique cultivated the eastern portion of the same plot. She learnt later on that the land ploughed by Siddique belonged to Saheb Ali and that the place of occurrence was Saheb Ali's land. She might have mentioned the name of Siddique as she found him cultivating the land. In view of the explanation given by the witness we find no inconsistency on the point. There is nothing else in the cross‑examination to make her evidence unworthy of credit. Her evidence is all-through consistent and there is no reason to disbelieve her evidence. (Rest of the discussion of evidence omitted).

22. The evidence of the eye‑witnesses, P. Ws. 1 to 6 as discussed above, clearly show that the deceased Noazesh Ali was murdered on the 3rd Poush, 1373 B. S. at about 10 a.m. at the paddy field of Saheb Ali in the manner as alleged by the prosecution and that the accused persons are responsible for the murder of Noazesh Ali. The consistent evidence of the eye witnesses have received corroboration from a number of other local witnesses such as P. Ws. 7, 11, 12, 13, 14, 15 and 16.

23. P. W. 7 Serajul Islam Choudhury is a member of the local Union Council. He left for Nabinagar in the early morning that day to attend a meeting of the Thana Council and returned to the locality at about 6 p.m. He went to the house of the deceased and saw the dead body of Noazesh All in the courtyard. P. W. 1 and her children narrated the occurrence to him. They told that on the order of accused Taru, accused M on Mia gave a Tekatia blow on the right leg of the deceased, accused Hashem gave a dao blow on the head of the deceased and accused Rekman gave a dao blow on the left cheek of the deceased. The accused chased the deceased up to the land of Saheb Ali where the occurrence took place. He then went to the land where the murder took place and saw blood in the paddy plants and earth and also saw the paddy plants in trampled condition. The witness also stated that about 2/3 days before the occurrence a pet cat of accused Mon Mia ate the dry fish of P. W. 1 and over this matter there was a quarrel between the deceased and the accused on Sunday morning and the accused persons threatened Noazesh Ali with dire consequences. Noazesh Ali's wife reported it to him and asked him to settle the matter. After Asar prayer time on Sunday he went to the house of accused and called Noazesh Ali there and advised them not to quarrel over small issues and to forgive and forget.

24. The defence criticism against the witness is that he is relation and as such an interested person. P. W. 6 is his own brother. He is, therefore, a common relation of both the par ties. Another grievance of the defence is that he came to the house of the deceased at 6 p.m. and heard of the occurrence thereafter and hence his evidence cannot be accepted for corroboration under section 157 of the Evidence Act. In view of the delay although his evidence with regard to the occurrence cannot be used as corroborative evidence under section 157 of the Evidence Act, but his evidence with regard to the facts that he saw the dead body in the courtyard of P. W. 1, noticed blood stained earth and paddy plants in the place of occurrence, heard of the incidents of Saturday and tried to compromise it on Sunday, may be accepted.

25. P. W. 8 is the doctor who held the post‑mortem examination. We have already discussed his evidence earlier.

26. P. W. 9 is a constable. He escorted the dead body to the Morgue and identified the same to the doctor who held the post‑mortem examination.

27. P. W. 10 is another constable and a formal witness. His evidence shows that he went to serve process of the Court to witness Rupa Mia but could not serve the same as he was absent from his house.

28. P. W. 11 Hamidul Huq, is the Chairman of local Union Council. He comes from the adjacent village Kaitala. He was not at home at the time of occurrence. He went to Nabinagar to attend the Thana Council meeting on the 3rd Poush, 1373 B. S. at 10 a.m. He returned home from the meeting at about 6‑45/7 p.m. On reaching home he learnt from his brother that Noazesh Ali of Goali bad been murdered. The witness accom panied by his brother went to the house of deceased Noazesh Ali at about 8 p.m. and found the dead body of Noazesh Ali lying in the courtyard with several injuries. P. Ws. 1, 2 and 3 told him that accused Mon Mia, Hashim, Rekman along with Taru murdered Noazesh Ali. He took Noazesh Ali's son and went to the place of occurrence and found blood marks there and paddy plants stained with blood and in damaged condition. He is a disinterested and respectable witness. There is nothing on record to impeach the veracity of the witness. His evidence with regard to the fact that he went to the place of occurrence, saw the dead body in courtyard of the deceased and also saw blood on the ground and paddy plants of Saheb Ali's land is very convincing. There is no reason to disbelieve his evidence.

29. P. W. 12 Abdul Khaleque is brother of P. W. 4 Rezon Mia. He has stated in his deposition that on Monday, the 3rd Poush, 1373 B. S. at about 11 a.m. he went to the house of the deceased on getting information that Noazesh Ali had been murdered. P. Ws. I and 4 told him that accused Taru ordered and accused Mon Mia, Hashim and Rekman murdered Noazesh Ali. The witness admitted in cross‑examination that he was a Ukil in the wedding of Khorshed Mia husband of niece of the deceased. From this the defence argues that the witness is an interested man. The relationship described above is no relationship at all. There is nothing else on record to shake his evidence. He has no reason to take false oath.

30. P. W. 13 Chand Mia has deposed to the effect that on the 3rd Poush, 1373 B. S. Monday at about 10 a.m. while he was crushing mustard in his ghanai he heard a cry of Abu Taber's wife, came out of his house, went to the eastern ghata and saw accused Mon Mia, Rekman and Hashim and absconding accused Taru running to their house from the south‑east part of the field. He saw a Tekatia in the hand of accused Mon Mia, a big dao in the hand of accused Hashem and a small dao and a muli in the hand of Rekman. Taru had nothing in his hand. The witness further stated that he found P. Ws. 1, 2 and 3 raising hue and cry in the field and so he went to that place and on reaching Saheb Ali's paddy land he found the dead body of Noazesh Ali lying there with a few bleeding injuries on knee and head. P. Ws. 1, 2, 3, 4, 5, 6, 14, 15 and 16 and others were there. P. Ws. 1, 2, 3 and 6 told him that on the order of accused Taru accused Mort Mia gave Tekatia blow on the knee of deceased, accused Hashim gave a dao blow on the head of the deceased and Rekman gave a dao blow on the face. P. W. 6 Channu Mia considering that the paddy in the field of Saheb Ali might be damaged asked the witnesses to carry the dead body at home and accordingly P. Ws. Mizan, Rupa Mia, Rezon Mia and he himself carried the dead body of Noazesh Ali to his house. The witness also stated that at the time of occurrence the adult male inmates of the house, namely, Abu Taber, Abdul Gani and Khorshed Mia were not at home. He also stated that Noazesh Ad was formerly a militaryman and after retirement from his service he used to sell medicines. In cross‑examination the witness has frankly admitted that both parties are his relations. His heart cries for the accused but he cannot tell a lie in such a case. He is the Khalato brother of accused Rekman. There is nothing in the cross‑examination to impeach the veracity of the witness. No enmity or bias has even been suggested to him. There is no reason to disbelieve his evidence.

31. P. W. 14 Abdul Hakim has stated in his deposition that on the 3rd Poush, 1373 B. S. at about 10 a.m. he was going to Kaitala Bazar by the path‑way near the house of P. W. 1. while he was about 150 cubits to the south‑west of the house of informant he heard an alarming cry and ran towards east. On proceeding further he saw four people running to the north‑west from the direction of those people raising hue and cry. Those four people were accused Rekman, Hashim, Mon Mia and Taru Mia. He saw a Tekatia in the hand of accused Mon Mia, one dao and a muli in the hand of accused Rekman and a big dao in the hand of accused Hashim and accused Taru Mia had nothing in his hand. The accused went to their houses. He went to the place of occurrence and found Noazesh Ali lying dead with bleeding injuries in the paddy field of Saheb Ali. P. Ws. 1, 2, 3, 4, 5, 6, 13, 15, 16, and others were present there. P. Ws. 1 to 3 told him that on the order of accused Taru, accused Mon Mia struck the deceased with a Tekatia on the right knee, accused Hashim gave a dao trope blow on the back of his head and accused Rekman gave a dao blow on the left cheek of the deceased. The witness is a close neighbour of both sides and a common relation. He has no reason to falsely implicate the accused persons. He has no enmity with the accused. There is nothing on record to impeach the veracity of the witness. The evidence of the witness can safely be accepted.

32. P. W. 15 Mizan Mia is the son of P. W. 13. He has stated that on hearing an alarm from the east he rushed out of his house and found accused Rekman, Hashim, Mon Mia and Taru Mia running from the south‑cast towards their house. Accused Mon Mia had a Tekatia in his hand, Fashim had a big dao in his hand and Rekman had a small dao and a muli. Taru had no weapon. Looking to the direction from where the accused were coming, he saw some people raising hue and cry and he ran there. Arriving to the spot he found Noazesh Ali lying dead with bleeding injuries on the paddy land of Saheb Ali. P. Ws. 1 to 6, 13, 14, 16 and others were present there. P. Ws. 1 to 3 told him that on the order of Taru Mia, accused Mon Mia gave Tekatia blow on the right knee of the deceased, accused Hashim gave deo blow on the back of the head of the deceased and accused Rekman gave dao blow on the left cheek of the deceased N'oazesh Ali. The witness along with Rezon Mia, Rupa Mia, and his father Chand Mia carried the dead body of the deceased to his house. Nothing has transpired in the cross‑examination to discredit the witness. He is a common relation and a close neighbour of the parties. He has no reason to take false oath. We find nothing on record to disbelieve this witness.

33. P. W. 16 Tajul Islam Chowdhury alias Taru Mia is brother of P. Ws. 6 and 7. He has stated in Court that on 3rd Poush, 1373 B. S. at about 10 a.m., Monday he was going to Kai tala Bazar by the northern path‑way. When he reached 5/6 kanis from his house he saw some people to the north. He rushed there. He saw the dead body of Noazesh Ali lying in the paddy land of Saheb Ali with bleeding injuries. He saw P. Ws. 1 to 6, 13 and others there. P. Ws. 1 to 3 and P. W. 6 told him that accused Rekman, Mon Mia, Hashim had murdered Noazesh Ali on the order of absconding accused Taru. Accused Mon Mia gave Tekatia blow on the right knee of the deceased, accused Hashim gave a dao blow on the back of the head of the deceased and accused Rekman gave a small dao blow on the left cheek of the deceased. He saw blood on the place of occurrence. He felt shock over the matter and returned home. The witness further stated that Noazesh Ali used to sell medicine against cash memo. He also printed hand bills regarding Hakimi medicines (witness produced some cash memos and hand bills). The defence put some suggestions to the witness but he stoutly denied them. There is nothing in the cross‑examination to falsify evidence. He is a common relation of both sides. He has no reason to falsely implicate the accused persons.

34. P. W. 17 Ali Newaz Sikdar is the Investigating Officer in the case. He has stated that he recorded the First information Report, Exh. 3 on the oral statement of P. W. 1 on 20‑12‑66 at 08‑05 hours. He took up investigation of the case and reached Goali at about 4‑30 p.m. on the same date. He held inquest over tie dead body of deceased Noazesh Ali as identified by P. W. 1. He went to the place of occurrence led by P. W. 1 and other witnesses and found blood in the ground and in the paddy plants. He seized the blood‑stained earth and paddy plants, prepared sketch map, examined the witnesses and thereafter submitted the charge‑sheet against the accused persons.

35. Besides the above evidence there is another piece of evidence on record, that is, the lower Court evidence of one Rupa Mia put in under section 33 of the Evidence Act. The defence has raised objection to this putting in mainly on the ground that no adequate search was made to trace out the witness and there being nothing on record to show that the prosecution took all possible steps to obtain the presence of the witness, his lower Court evidence cannot be accepted under section 33 of the Evidence Act. P. W. 10 has specifically stated before the Court that he made enquiry about him from the inmates of the house but they could not give his whereabouts. They all told him that Rupa Mia had gone to Sylhet for selling earthen pots. None knew his address or whereabouts and nobody could say when Rupa Mia would come back. P. W. 13 has deposed to the effect that Rupa Mia had gone to Sylhet for procurement of paddy against earthen pots and that his whereabouts are not known. P. W. 15 has stated that Rupa Mia's whereabouts are not known. Similarly P. Ws. 6 and 7 also have deposed to the same effect. All these evidence on record show that the conditions laid down in section 33 of the Evidence Act have been fulfilled and that the presence of the witness cannot be obtained without an amount of delay or expense. The requirement of law is that the Court before transferring the lower Court evidence to Sessions records under section 33 of the Evidence Act must be satisfied by proof on the conditions laid down in the section. The order‑sheet shows that the learned Sessions Judge has recorded reasons for his accepting the evidence under section 33. We are satisfied that the conditions of section 33 of Evidence Act have been fully complied with and the lower Court evidence of the witness has rightly been put in the case.

36. P. W. Rupa Mia has stated that on the 3rd Poush, 1373 B. S. Monday at about 10 a.m. he was going to Kaitala Market by the road which runs by the eastern side of P. W. 1. He then heard cries and saw deceased Noazesh Ali running away and accused Mon Miz, Hashim, Rekman and Taru chasing him with deadly weapons. The accused persons confronted Noazesh Ali in the paddy field of Saheb Ali. He followed them and tried to dissuade them. Noazesh Ali begged to be excused with folded hand but under order of accused Taru Mia, accused Mon Mia pierced the right knee of Noazesh Ali with Tekatia. Noazesh Ali tried to extract it and at that moment accused Hashim struck Noazesh Ali with a dao on his head from the back and the accused Rekman struck Noazesh Ali with a dao on his left cheek. Noazesh Ali fell down and died. Accused Mon Mia then extracted the Tekatia and went away along with other accused. He saw the occurrence from a distance of half kani of land. P. Ws. 1 to 6, 13, 14, 15 and 16 were present at the place of occurrence. P. Ws. Mizan, Rezon, Chand Mia and he himself carried the dead body of Noazesh Ali to the house of P. W. 1.

37. The witness is a close neighbour of the parties and absolutely a disinterested man. His evidence is consistent with the other evidence on record. But his evidence given in the lower Court was not tested in cross‑examination as no cross‑examination was directed by the defence. In the circumstances, it has been argued that it would not be safe to rely on his evidence. Considering this aspect of the matter and also the question of prejudice to the accused, even if the evidence of this witness is kept out of consideration, there is still overwhelming evidence on record to prove the charge against the accused persons. The evidence of the eye‑witnesses P. Ws. 1 to 6 and the corroborating witnesses, particularly of P. Ws. 13, 14, 15 and 16 as discussed earlier, prove beyond reasonable doubt that the occurrence took place at the time and place and in the manner as alleged by the prosecution and that the accused persons committed the murder of Noazesh Ali in furtherance of the common intention of them all.

38. The learned Advocate appearing for the accused has made a general grievance that almost all the local witnesses including eye‑witnesses have made statements in the Sessions Court which are contradicted by their earlier statements recorded under section 161, Cr. P. C. The alleged contradiction are sought to be established upon certain questions which were put to these witnesses as to whether they had made certain statement to the police and upon their saying that they made such statements, the Investigating Officer in course of his cross examination was asked as to whether a particular witness had made a particular statement and he stated in some cases that the particular witness had stated so to him though it was not recorded in his statement and in some cases he stated that it was not recorded in the statement of the witness made under section 161, Cr. P. C. From this, the learned Advocate wants to say that the contradictions have been established and the benefit of the contradictions should go to the accused. In this connection it is to be pointed out that the statement under section 161, Cr. P. C. is not at all evidence. The only purpose of such statement is to contradict the prosecution witness and that also can be done only after the statement has been duly proved and that provision of section 145 of Evidence Act has been duly complied with. In the present case since no such statements were made or recorded, the statements could not have been proved and strictly speaking it is difficult to hold that a mere omission must also be a contradiction. An omission of a statement from the record is only of value if it is of such importance that the witness would have almost certainly made it and the police officer would have certainly recorded it, had it been made. The omission in the statement under section 161, Cr. P. C. cannot in the circumstances be used for contra diction. The practice of proving omissions in the statements are generally to be discouraged and without being known as to whether the Investigating Officer is speaking from his memory or speaking by reference to his diary or the statement recorded by him, it is difficult to say that it is a contradiction of a previous statement. An omission from the statement recorded in a boiled form, in our opinion, does not amount to con tradiction and the alleged contradiction sought to be taken from the omission of the statement cannot in the instant case be proved under section 162, Cr. P. C. to hold that contradiction in accordance with the provision of section 162, Cr. P. C. has been established. In this connection the case of Tara Mia and another v. The State (7 D L R 539) may be referred to.

39. The learned Advocate then contended that the witnesses examined in the case were all relations and no independent or disinterested person had been examined by the prosecution. Out of the 13 local witnesses examined in the case P. Ws. 1, 2 and 3 are relations but the others are not. Some of the latter witnes ses are absolutely independent and some are common relations of both sides and amongst the common relations some again appear to be very close to the accused. It cannot, therefore, be said that all the witnesses examined are relations of the deceased. Relationship alone is no ground to discard the evidence of a witness. P. Ws. 1, 2 and 3 are no doubt close relations but they are most natural and competent witnesses in the case and there is nothing on record to bring aspersion on their evidence. The witnesses examined in the case are all close neighbours and they are the only witnesses who either saw the occurrence or heard of the occurrence from the eye‑witnesses soon after the occurrence. There is nothing on record to show that any other person came to the scene and saw the occurrence at all. That being the position, the criticism of the learned Advocate that no independent witness was examined in the case has no force.

40. The grievance as to non‑examination of Abu Taher, Khorshed, Kitab Ali, the Chowkidar and the Dafadar as advanced by the defence has no substance. None of them were present near the place of occurrence and none saw the occurrence. By no imagination they can be treated as material witnesses in the case. The Chowkidar and Dafadar came afterwards to guard the dead body. Kitab Ali came to the scene in the evening and Abu Taher and Khorshed returned home from Brahmanbaria at 10/ 12 p.m. at night. Kitab Ali, Abu Taher and Khorshed are also close relations of the deceased. In the circumstances, their non examination does not affect the prosecution case.

41. The defence suggestion that the deceased Noazesh Ali, was a thief and he was killed by some other people at night at Kaitala in some other manner and his body was left in the field, has not been substantiated at all by the evidence. There is not an iota of evidence on record to support the defence version. P. kN s. 1, 2, 3, 6, 7 and 14 have stoutly denied the de fence suggestion in this respect and vehemently denounced that 7 motkas of stolen dry fishes of Manindra Kaibartas Das of Ballavpur were recovered from the house of the deceased. These witnesses and others have uniformly stated that deceased Noazesh Ali was a Hakim and he used to sell medicines like "Jouban Shant Salsa" in Kaitala Market and elsewhere (some hand bills and cash memos. were filed in this connection). There are overwhelming evidence on record to show that deceased was a Hakim and a respectable man. Simply because no bottle of medicine was produced before the Court and no witness from Kaitala Bazar was examined in this behalf, the uniform evidence on record in this respect cannot be disbelieved.

42. As to the motive for the crime the prosecution case is that on Saturday preceding the date of occurrence one pet cat of Mon Mia ate the dry fish of P. W. 1 and she sustained a loss thereby. She questioned accused Mon Mia about the matter but the latter abused her in filthy words. P. W. 1 reported the occurrence to her husband, the deceased Noazesh Ali and on Sunday morning Noazesh Ali asked accused Mon Mia as to why he abused P. W. 1 and over this there were altercations and quarrel between the deceased and the accused persons. The accused grew angry and threatened that they would kill Noazesh Ali. P. W. 1 in her deposition has given this motive. The motive for the crime has also been mentioned in the First Information Report. P. W. 7 also corroborates P. W. 1 on the point. According to P. W. 7, on receiving a report from Noazesh Ali's wife about the quarrel, after Asar prayer time on Sunday, he went to the house of accused persons and called Noazesh Ali there and advised them not to quarrel over small issues and to forgive and forget. But it appears that his attempt to comp romise the matter failed due to obstinacy and anger of the accused persons and they ultimately took the life of Noazesh Ali for that reason. The motive given by the prosecution has been proved in the case. The evidence on record shows that the accused who were bent upon taking the life of Noazesh Ali for the quarrel of Sunday actually murdered him out of that grudge. In this view of the matter the comment of the learned Advocate that the incident of Saturday or Sunday being a minor issue the accused persons cannot kill the deceased for that trifling matter, has, on the face of overwhelming evidence on record, no leg to stand.

43. The criticism of the learned Advocate that the prosecu tion case is highly improbable and the accused being the kinsmen cannot attack the deceased in the broad day‑light has no substance. The evidence in the case being clear and uniform, there is no room for speculation and the alleged improbability has no place to react upon those evidence. The eye‑witnesses P. Ws. 1 to 6 have given a consistent, natural and reasonable account of the story of murder in the broad day‑light and the other local witnesses, namely, P. Ws. 12, 13, 14, 15 and 16 who immediately came to the place of occurrence have given corrobo ration to the version of the eye‑witnesses. Amongst the cor roborative witnesses P. Ws. 13, 14 and 15 saw the accused going away from the place of occurrence with their assault weapons. There is nothing on record to disbelieve the evidence of the P. Ws. That being the position of evidence, the contention of the learned Advocate has no force.

44. It has been argued on behalf on the defence that the dead body of deceased Noazesh Ali having been removed to his house from the paddy field of Saheb Ali soon after the occurrence there must be a trail of blood up to the house of P. W. 1 but no trail of blood having been found by the Investigating Officer, the prosecution case as to the time, place and manner of occurrence should be accepted with some amount of suspicion. The evidence as discussed earlier, has established beyond all reasonable doubt that the occurrence took place at about 10 a.m. in the paddy land of Saheb Ali in the manner as alleged by the prosecution. The deceased died soon after the receipt of the injuries. His wearing clothes were besmeared with blood. There was blood on the ground. Blood was also found in the paddy plants. All these indicate that most of the blood exhausted in the paddy field. In the circumstances if the dead body is removed from the paddy field, say 15 minutes after the occur rence, there would be little chance of a trail of blood. Even if there be some drops of blood here and there on the way back, those are likely to be soaked by earth and removed by the foot steps of large number of people who came there after the occur rence. The Investigating Officer came to the place of occurrence next day at about 5 p.m. about 32 hours after the occurrence and he might not have noticed in the circumstances any trail of blood there. Absence of such trail of blood does not falsify the prosecution case with regard to time, place and manner of occurrence. The contention of the learned Advocate in this respect cannot, therefore, be accepted

45. With regard to the delay in lodging the First Information Report, P. W. 1 Jamila has given an explanation in her deposition before the Court. She has stated that her debor Abu Taher and niece's husband Khurshed went to Brahmanbaria and returned home at dead of night. Her another debor Abdul Ghani was not at home and her bhashar Kitab Ali was at Kaitala. In the absence of the adult male members in the house, she was in a fit owing to her husband's death and hence there was delay in coming to the thana. This delay was also mentioned in F. I. R. Exh. 3. The evidence of P. W. 1 Jamila Khatun in this respect has been corroborated by P. Ws. 2, 3 and 13. We have already discussed their evidence earlier. The consistent evidence on record is that nearest adult male members of the house being away P. W. 1 could not go to the thana earlier and lodge the First Information Report in time. The explanation given by the prosecution is not unreasonable and we accept the explanation as satisfactory. The alleged delay in the circumstances of the case is not at all material. Even if there be some delay in lodging the First Information Report, that alone cannot be deemed as sufficient to reject the prosecu tion case. The consistent and uniform story given by the prosecution witnesses cannot be disbelieved merely due to some delay in lodging the First Information Report which is explain able. There is thus no substance in this contention too.

46. Considering the entire evidence on record and all aspects of the case we hold that the charge against the accused has been satisfactorily proved by overwhelming evidence and the accused persons have been rightly concocted in the case under section 302/33 of the Penal Code.

47. Thus the only question remains to be determined is the sentence in respect of condemned‑prisoner Abdul Hashim. The learned Sessions Judge has sentenced Abdul Hashim to death and his two associates Mon Mia alias Mohan Mia and Abdur Rahman alias Rekman to transportation for life each. The learned Advocate appearing for the condemned‑prisoner has submitted that he is a student reading in Class X and a young man of tender age and whatever he did under the influence of the absconding accused Taru Mia. The condemned‑prisoner is aged about 21/22 years according to his statement before the Sessions Court recorded on 18‑5‑68. He is aged about 20 years, as given by him, before the Committing Magistrate, on 5‑3‑68. He is, therefore, not too young and not in his early teen age. He is a grown up young man. He has read up to Class X and as such acquired sufficient knowledge about the worldly affair. Young age alone is not always a good ground to give lesser sentence. In each case the question of sentence shall be considered in the light of the gravity of the offence and the background of the facts of the case. The murder is a pre‑planned one. As soon as the deceased was attacked and chased by the accused persons, he begged for mercy of his life. His wife and two children who were running after them also begged for mercy of his life. The witnesses Rezon Mia, Chunnu Mia, Rupa Mia who were present there also begged to spare the life and not to kill the deceased. After receiving the first blow on the right knee the victim bent down to extract the Tekatia and at that moment this educated young man gave the fatal blow by a big dao on the back side of his head in spite of requests and begging of the witnesses. The blow was given with such force that the bones were completely cut and brain substance came out from that portion of the injury. Noazesh Ali was unarmed in the very face of his wife and two minor children. That being the position he must face the legal consequence of his action. The normal legal sentence in a case under section 302, P. P. C. is death. The presence of the other accused does not minimise the gravity of the act he committed. We, therefore, hold that the learned Sessions Judge has rightly G convicted and sentenced him to death. We accordingly maintain the conviction and confirm the sentence of death passed on him and also affirm the conviction and sentences of transportation for life imposed on the other two appellants.

In the result the reference is accepted and the appeal is dismissed.

Before we part with the matter, we would however like to observe that in case any mercy petition is filed on behalf of the condemned‑prisoner Abdul Hashem, the appropriate authority may consider his case sympathetically.

Appeal dismissed.

Reference accepted.

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