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Death Reference No. 6 of 1960 and Appeal No, 594 of 1960, decided on 21st November 1960.
S. 302 read with S. 34‑Charge under Ss. 34 and 302 established against number of persons‑Equally guilty.
When a charge under section 302 read along with section 34 of the Pakistan Penal Code has been established against a number of persons, they are all equally guilty in the eye of law.
Agony of death sentence hanging on accused for about three months‑Enough extra punishment‑Sentence reduced in circumstances of case.
(c) Criminal Procedure Code (V of 1898),
Ss. 161 & 162 Requirements of S. 161‑Prosecution witness "tendered" for cross -examination without being examined‑in‑chief‑Accused entitled to make use of witness's statement before Police in order to contradict him.
The requirement of section 161, Cr. P. C. is that the witness must be called for the prosecution. Witness was called for the prosecution and tendered as a witness without being examined‑in chief. Even though his evidence consisted merely of statements in cross‑examination, the defence was entitled to use the statement of the witness taken under section 161 of the Code of Criminal Procedure in order to contradict his evidence elicited in such cross‑examination.
The Sessions Judge misdirected himself when he did not allow the Advocate for the defence to use the statement which the witness mace before the Investigating Officer and which was recorded under section 161 of the Code of Criminal Procedure. The defence was entitled to use such statement in order to contradict a prosecution witness even with regard to evidence given in cross‑examination.
Ataur Rahman Khan and Zamiruddin Ahmed for Appellants (in opposition of the Reference).
Abdul Rye Chowdhury for the State (in support of the Reference.)
‑This case arises out of a Reference under section 374 of the Code of Criminal Procedure and also out of an appeal which is numbered as Appeal No. 594 of 1960. This judgment will dispose of both the Reference as well as the appeal.
2. The Reference has been made by Mr. Amjad Hossain Chowdhury, Additional Sessions Judge, Dacca, for confirmation of the death sentence, which has been passed on accused Nawab Ali Biswas alias Naba Biswas alias Naba under section 302/34 of the Pakistan Penal Code.
3. The appeal is by the condemned prisoner, the said Nawab Ali Biswas alias Naba Biswas alias Naba as well as by four others, namely, Nawab Ali Sheikh alias Naba Sheikh alias Naba, Joynal Sheikh, Sheikh Gani and Eunus Ali alias Sheikh Eunus Ali. For the sake of convenience we sell describe them as appellant.
4. The aforesaid five accused persons were tried by the said Additional Sessions Judge with the aid of Assessors on charges under sections 302/34 and 120‑B of the Pakistan Penal Code.
5. Prosecution case may be briefly stated as follows:
On the 7th Falgoon, 1366 B. S. corresponding to the 1st of March 1960, at about 9 or 9‑30 a.m. one Latu Biswas was returning home from a bazar nearby, called Ujan Boyra Bazar, with a bottle of kerosene oil in his hand containing half a bottle of red kero sene oil. He had gone to the said bazar to purchase kerosene oil in the morning.
6. Appellants Eunus Ali, Joynal and Nawab Ali Sheikh alias Naba Sheikh alias Naba were following the said Latu Biswas and while the latter was returning from the bazar with the bottle of kerosene oil and had reached a place near the house of one Khaimuddin (P. W. 1) the aforesaid three persons fell upon him and pushed him down on the ground of the District Board Road by which Lalu Biswas was coming home from the bazar. Immediately, at this juncture, the other two appellants, namely, Nawab Ali Biswas alias Naba Biswas alias Naba and Sheikh Gani, appeared on the District Board Road and all the five persons began to assault Lalu Biswas with kicks, fists and blows. P. W. 1 Khaimuddin heard sounds of this assault and came out of his cowshed where he was at that time. He saw the five appellants assaulting Lalu Biswas and he intervened in order to stop the assault. The five appellants, however, lifted up Lalu Biswas bodily and carried him into the inner yard of the house of one Wajuddin at a distance of about one hundred cubits. P. W. 1 Khaimuddin followed them. All the five accused persons placed Lalu Biswas on the ground in the inner yard in front of the west bhiti but of the homestead of the aforesaid Wajuddin. Appellant Naba Biswas took a tapping dao from the west bhiti but by stretching his hand; the other four appellants kept Lalu Biswas under their hold by seizing him and pressing him down. Thereupon, appellant Nawab Ali Biswas alias Naba Biswas alias Naba dealt a blow with the tapping dao on the back of the neck of Lalu Biswas causing a wide gaping wound as a result of which Lala Biswas fell down on the ground. The appellants then left the place.
7. P. W. 1 Khaimuddin then wrapped up the wound inflicted on Lalu Biswas with a piece of cloth, which has been described as napkin, and raised an alarm.
8. One Abdul Habib Biswas (P. W. 2), a boy of 10/11 years witnessed the occurrence from the top of a borui tree (plump tree). He also set up an alarm.
9. At the alarms raised by the aforesaid witnesses, a number of persons came to the place of occurrence and heard about the same from P. W. 1 Khaimuddin and also from Lalu Biswas. A medical man by the name of Dr. Chittaranjan Datta, who has been examined as P. W. 8 in this case, came to the place of occurrence. The said medical man Chittaranjan Datta, recorded a dying statement of Lalu Biswas, who made some statements in answer to a few questions and died immediately thereafter without being able to complete the statement.
10. In the meantime P: W. 5, Abdul Ali Biswas, a son of the deceased Lalu Biswas, came to the place of occurrence and heard about the same from P. W. 1 Khaimuddin and from other persons whose names could not be supplied by the said Abdul Ali Biswas. He immediately proceeded to Harirampur Police Station which is at a distance of about three miles from the place of occurrence and lodged a first information report at about 11‑30 a. m. on the same, day. The Officer‑in‑charge of the Police Station immediately came to the place of occurrence and held an inquest on the body of the deceased. Lalu Biswas. He, forwarded the, same for post‑mortem examination to Manikganj Morgue. He also examined witnesses, upon completion of investigation in this case, submitted charge‑sheet against all the appellants:
11. After a preliminary enquiry by a competent Magistrate the appellants were committed to the Court of Sessions to stand their trial on the aforesaid charge.
12. Prosecution case, further, is that there has been enmity between Lalu Biswas and his brother Kalu Biswas in respect of some plots of land, and, furthermore, that there has been ill‑feeling between the said brothers arising out of recent elections to Union Council. The land dispute and the said elections divided the people of the locality into two groups and the appellants, it is alleged, belonged to the party of Kalu Biswas.
13. All the aforesaid appellants pleaded not guilty to the charge framed against them. In so far as the appellant Nawab Ali Biswas alias Naba Biswas alias Naba is concerned, it appears from the cross‑examination directed on his behalf as well as from the statement made by this appellant in his examination under section 342 of the Code of Criminal Procedure, is that there has been dispute in respect of some plots of land, and; furthermore, that there was an occurrence early in the morning of the 17th of Falgoon, when Lalu Biswas harvested the kalai crop grown on C. S. plot No. 5191. A riot took place there and the deceased Lalu Biswas received injuries as a result of the said riot. While being carried home the condition of Lalu Biswas became precarious and he was taken in the way to the house of Wajuddin Biswas. In fact the defence of the appellants is that the occurrence did not take place in the manner and on the spots as alleged by the prosecution. The case of the other appellants is that they have been falsely implicated in this case.
14. The Assessors were unanimously of opinion that the appellants were guilty under section 302/34 of the Pakistan Penal Code.
15. Learned Additional Sessions Judge, on an appraisal of the evidence in this case as well as the relevant facts and cir cumstances of the case, came to a finding that the charge against the appellants was conclusively brought home against them. He, therefore agreeing with the unanimous opinion of the Assessors, convicted the appellants under the aforesaid charge and awarded death sentence to Nawab Ali Biswas alias Naba Biswas alias Naba and sentenced the rest of the appellants to transportation for life. Hence this Reference as well as the appeal.
16. At the hearing of this appeal Mr. Ataur Rahman Khan appeared for the appellants and has taken us through the entire evidence in this case as well as the relevant records along with the judgment pronounced by the learned Additional Sessions Judge. He has contended that the prosecution has failed to establish the charge against the appellants by satisfactory evidence. He has also urged that an adverse inference should be drawn against the prosecution for non‑examination of one Faizuddin, who was a material witness in this case. Furthermore, he has made a grievance to the effect that the learned Additional Sessions Judge has illegally prevented him from using the statement recorded by the Investigating Officer under section 161 of the Code of Criminal Procedure in respect of P. W. 11 Abdul Aziz, who was tendered by the prosecution but not examined‑in‑chief.
17. P. W. 1 Khaimuddin Sheikh has given evidence in respect of the details of the prosecution case, as stated above. He has stated how he was attracted by sounds of assault when he came out of his cowshed at about nashta time. He described how all the aforesaid appellants set upon their victim, the deceased Lalu Biswas, on the District Board Road. He intervened and separated them, and thereupon the appellants bodily lifted the said Lalu Biswas and carried him to the inner yard of the house of Wajuddin. He has described how the deceased Lalu Biswas was pressed to the ground by the appellants, and while the other appellants held the deceased in their grip, appellant Nawab Ali Biswas alias Naba Biswas alias Naba got hold of a tapping dao and dealt a severe blow with it at the back of the neck of the deceased Lalu Biswas causing a wide gaping wound. P. W. Khaimuddin raised an alarm and bandaged the wound with a napkin which has been marked as Exh. 1 in this case. His alarm attracted some witnesses who heard about the occurrence from him and also from Lalu Biswas. On the arrival of one Bhola Doctor (Chittaranjan Datta) Lalu Biswas also named appellant Nawab Ali Biswas as his assailant, and this was taken down in a piece of paper. After the statement of Lalu Biswas taken down he immediately died.
18. It would thus appear that P. W. 1 Khaimuddin Sheikh has proved the entire prosecution case. P. W. 1 was cross‑examined with reference to the statement he had made to the Investigating officer as well as to his deposition in the Committing Court. Mr. Ataur Rahman Khan has argued that this witness should not be believed in the first place, because it is improbable that he would engage four labourers to do his work while he himself also worked as a day labourer. Learned Advocate for the appellants has further argued that this witness has been con tradicted on material points by his statement to the Investigating Officer as well as by his deposition in the trial Court. It would be seen that it transpires that he did not state to the Investigating Officer that he heard the cry of Lalu Biswas being assaulted on his way back from the bazar. He also did not state the same in his deposition before the Committing Court. We do not think that this is at all a serious omission. Furthermore, this witness did not state to the Investigating Officer that Eunus Ali caught hold of the throat of Lalu Biswas. Again this witness was cross‑examined with reference to his deposition before the Committing Court to the effect that he did not state there that Naba Biswas took the dao from west bhiti hut. We think that none of these omissions are of any consequence. They are matters of details and the witness has not been contradicted in respect of any vital and material evidence given by him. The witness has further stated that he did not depose before the Committing Court that Faizuddin saw the occurrence. He explain ed the statement by saying that Faizuddin, in fact, came after the actual occurrence. There are certain other omissions to which our attention was drawn. None of the aforesaid omissions or statements would, to our mind, shake the credit of this witness. There is also nothing unusual that this witness should engage some labourers for particular kind of work. From his evidence it transpires that he also possesses land of his own which he ploughs. In these circumstances, the engagement of a few labourers by him to do a particular work was not at all unusual.
19. This witness has been corroborated with regard to material particulars by other witnesses which we shall discuss hereafter. He has been further corroborated by the other circum stances of this case. It was not suggested to this witness that he bore any ill‑feeling towards the appellants and there is no reason why this witness should give false evidence against them. The evidence of this witness is straightforward and convincing. It has impressed the trial Court and it also impresses us.
20. The next witness is P. W. 2, Abdul Habib Biswas. In his examination‑in‑chief he has stated as follows:
"I know Lalu Biswas. It was at about nashta time on a Tuesday in the month of Falgoon last I was plucking plum on getting upon a plum tree belonging to Wajuddin and situate to the east of his house, at a distance of 30 (thirty) cubits. From the tree I saw Eunus, Joynal, Gani, Sheikh Naba and Biswas Naba carrying Lalu Biswas into the inner yard of the house of Wajuddin in front of his west‑bhiti but (identifies all the five named accused in dock). Eunus Ali and Joynal held Lalu Biswas by pressing his head down. Sheikh Naba caught Lalu Biswas by the wrist and Gani held him by his feet. Bachu stretched out a dao from the west‑bhiti but which Naba Biswas took by stretching his hand. Khaimuddin asked Biswas Naba not to strike Lalu with the dao. Naba Biswas then threatened Khaimuddin with the dao when he retraced back a few steps. Then Naba Biswas dealt a dao blow on the neck of Lalu Biswas while the other four accused had caught hold of him. The accused persons then left the place.
"I got down from the plum tree and ran to the house of Lalu Biswas and said to the womenfolk that Lalu Biswas was murdered in the house of Wajuddin."
21. Mr. Ataur Rahman Khan has severely criticized the evidence of this witness, who by saying that he is a child witness, who is capable of being easily tutored. Our attention was drawn to the fact that he has stated that he knows the meaning of oath two days before he gave evidence be fore Court. The witness was cross‑examined with reference to his statement before the Investigating officer, and in his cross‑examination he has stated as follows:
"It is not a fact that I did not state to the daroga that Eunus and Joynal held Lalu down by his head and Naba Sheikh and Gani by his feet. It is not a fact that I did state to the daroga that Naba Biswas threatened Khaimuddin with assault by the dao."
It transpires from the evidence of the Investigating Officer that he did not state so. We do not think that these are serious omissions. In his statement before the investigating Officer he has not given the details of the occurrence in the sequence as stated by him in the trial Court. As a matter of fact, this witness was not contradicted on any of the material points which appears in his evidence‑in‑chief.
22. Mr. Ataur Rahman Khan has attacked his evidence on the ground that it was rather strange that after the incident he raised an alarm but did not enter the house of deceased Lalu Biswas and merely shouted that Lalu Biswas was murdered. We do not think that it is a strange conduct on the part of this witness. The trial Court was satisfied that he was capable of understanding questions asked of him and of giving intelligent and sensible answers to them. Furthermore, he has stated that he realized that it is an act of sin to give false evidence on oath. He has given evidence in a most impressive and convincing manner. It also appears that he has developed sufficient sense of responsibility to realise that it was his duty to tell the truth. There is a genuine ring of truth in the evidence that he gave in Court. He could not be shaken by heavy cross‑examination to which he was subjected. We, therefore, accept his evidence and see no reason to reject the same.
23. The evidence of P. W. 1 and P. W. 2 is sufficient to establish the charge against the appellants. The rest of the evidence is corroborative and they corroborate the aforesaid witnesses in all material particulars.
24. P. W. 3 Amullya Chandra Raha has given evidence with regard to the first part of the prosecution story, namely, the assault on the deceased by the appellants on the District Board Road while he was coming back home from the bazar. He saw the carrying away of the deceased by five persons from the said spot. Subsequently, he went to the inner yard of the house of Wajuddir where the deceased was lying with the injuries on his person. He did not actually see the appellant Nawab Ali Biswas alias Naba Biswas alias Naba inflicting the wound on the back of the neck of the deceased, but he corroborates the evidence of P. W. 1 Khaimuddin Sheikh with regard to the rest of his evidence. In his cross‑examination his attention was drawn to his statement made to the Investigating Officer. It trans pires that he omitted to mention the names of the persons who had taken and carried away Lalu Biwas from the District Board Road to the inner yard to the house of Wajuddin. He was asked whether he merely told the Investigating Officer that he had seen 4/5 men lifting Lalu Biswas and carrying him away towards the house of Wajuddin. But in fact it appears from the evidence of the Investigating Officer that he did not say so. Learned Advocate for the appellants: has described this as a very serious omission. We do not think that this omission discredits the entire evidence of this witness. The witness has not been contradicted on the point that he saw the lifting away of the deceased by five persons from the District Board ‑ Road. The omission is with regard to the names of the said persons. At best, we can only hold against this witness that he was possibly not able to identify the said five persons at the place from where the deceased was taken away from the District Board Road. His evidence to the effect that he saw the deceased being lifted away by five persons from the District Board Road remains unshaken.
25. Mr. Ataur Rahman Khan has, further, criticised the evidence of this witness by saying that he had been given evidence in some cases brought by one Nagendra Kumar Sarkar, father of P. W. 4, Sudhir Kumar Sarkar, in respect of some of the appellants. We do not think that this establishes any ill‑feeling or enmity between this witness and the appellants before us. On the contrary, this witness appears to be an independent witness and there is no good reason why this witness should give false evidence against the appellants. We, therefore, accept his evidence that he saw the deceased being carried away from the District Board Road by five persons and we also accept the rest of his evidence.
The evidence of P. W. 4 Sudhir Kumar Sarkar is almost to the same effect as that of P. W. 3 Amullya Chandra Raba. His evidence was accepted by the trial Court and we also see no good reason for disbelieving him. But inasmuch as P. W. 3 Amullya Chandra Raba has stated that there has been some litigation between the father of this witness and some of the appellants, we think it safer not to use his evidence against the appellants.
26. The next witness is P. W. 5 Abdul Ali Biswas. He is a son of the deceased and had gone to the place of occurrence, and when he saw his father with a gaping wound, he fell into a swoon and soon after his recovery he heard about the incident mainly from P. W. 1 Khaimuddin Sheikh and from some other persons whose names he could not recollect. He, thereupon immediately proceeded to the Police Station and lodged the first information report. He was cross‑examined with reference to the first information report lodged by him. It transpires that in the first information report he had stated the names of sixteen persons and of about 20/25 others (whose names he could not specify) as the accused persons. Although he mentioned the name of Naba Sheikh in the first information report, he did not state there that the said Naba Sheikh assaulted and carried away his father from the District Board Road. This witness was definite that he beard about the names of the five appellants from P. W. 1 Khaimuddin Sheikh when he proceeded to lodge the ejahar. This witness is not an eye‑witness to any of the incidents stated above. His first information report is based on what he had heard from others. It was argued that his evidence should not be accepted S inasmuch as in the first information report there was a mention of the names of sixteen persons as well as of about 20/25 other persons whose names could not be given by him. We do not think that this is a sufficient ground to disbelieve this witness. There is no reason to disbelieve that he went to the place of occurrence after his father had received the wound described above, and there is no reason to disbelieve that he heard about the occurrence, amongst others, from P.N. 1 Khaimuddin Sheikh. That he lodged a first information report soon after the occurrence, is a patent fact. The first information report substantially corroborates him on the material points in this case. Our attention was drawn to some minor discrepancies and omission which, to our mind, do not shake the credit of this witness whose evidence is simple and impressive. He could not be shaken on the point that he heard the names of five appellants from P. W. Khaimuddin immediately after the occurrence. We have no hesitation to accept his evidence. This witness has denied the suggestion that there was a quarrel earlier in the morning at the time of harvesting kheshal and kalai. He had denied that there was maramari. Furthermore, he has emphatically denied that his father received the injury at the kalai khet in the morning. He also denied that when the condition of his father became precarious while being carried home, he was carried to the house of Wajuddin. There is no basis for the said suggestion and the evidence in this case completely demolishes them.
27. P. W. 6 Majibar Rahman held the post mortem examination in respect of the dead body of Lalu Biswas. His evidence‑in‑chief is as follows:
"Body moderately nourished rigor mortis present eyes and mouth half open. Blood‑stain and clotted blood were found on back of neck. There were the following injuries:
"(1) One gaping incised wound 5" x 2" x bone on bolder right and back of neck.
"(2) Abrasion 1" x " just below and back of left elbow.
"On dissection of injury No. 1 it was found that it had cut the muscles, blood vessels and nerves of lower back of right of neck. It had also cut through the seventh cervical vertebrae and also the spinal cord.
"Other organs were healthy. The stomach was healthy and it contained about 4 oz. of half digested food. The heart was empty and healthy.
"Death in my opinion was due to the effects of injury No. 1 which was ante‑mortem and homicidal in the nature. It might have been caused by a sharp cutting weapons, e.g., taping dao.
"The death was inevitable because of injury No. 1." In his cross‑examination he has stated as follows
"The man would die within 2/5 (five) minutes of the injury. He would not be able to talk with such injury."
On recall at the instance of the Public Prosecutor he has stated as follows:
"The vocal cord was not cut or injured in any way."
We accept his evidence‑in‑chief as there is no dispute with regard to it. The injuries found on the person of the deceased by this witness and his opinion to the effect that death was caused by injury No. 1, were not challenged by the defence. We shall hereafter deal with his cross‑examination and re‑examination when we deal with the question of the alleged dying declaration made by the deceased Lalu Biswas.
28. The next witness is P. W. 8 Chittaranjan Datta. He has stated that he came to the place of occurrence where he saw the wound on the person of the deceased Lalu Biswas. He recorded the dying statement of the deceased which has been marked as Exh. 2 in this case. In this dying statement appellant Nawab Ali Biswas alias Naba Biswas alias Naba has been implicated. This witness is an independent witness and there is no reason why he should falsely implicate the appellants. He is a licentiate of the Faculty of Medicine and is a medical man of responsibility. In the statement that he recorded he has appended a statement to the effect that Lalu Biswas died at about 10‑55 a.m. This statement is appended to the preliminary remarks noted by him before recording the actual statement made by the deceased Lalu Biswas. He was cross‑examined on this point and the explanation given by him is that he added the last line to the aforesaid preliminary statement inasmuch as there was sufficient space there to do so. He was further cross‑examined tin respect of the statement that he has recorded, and we do not think that there is any good reason not to accept his explanation with regard to it. His evidence militates against the evidence of P. W. 6 Dr. Majibar Rahman to the effect that the man (deceased) would die within 2/5 minutes, and furthermore, that the deceased would not be able to talk with the sort of injury received by him.
29. The aforesaid evidence of Dr. Majibar Rahman was severely criticized by the learned Additional Sessions Judge. The learned Additional Sessions Judge has quoted from authoritative works on medical jurisprudence which would indicate that with the sort of injuries that were found on the person of the deceased it was quite possible that the deceased would live for some time after the receipt of such injuries.
30. To us, there is no manner of doubt that the aforesaid evidence of P. W. 6 Majibar Rahman is too dogmatic and against the opinion expressed in some well‑known works on medical jurisprudence. P. W. 6 Majibar Rahman admitted that the vocal cord was not cut or injured in any way and yet he dogmatisms that the victim would not be able to talk. We are rather impressed by the evidence of P. W. 8 Chittaranjan Datta. But, in view of the evidence of P. W. 6 Majibar Rahman we would, as a matter of abundant caution, leave out of our consideration the alleged dying declaration made by the deceased.
31. The last important witness is P. W. 9 Narendra Kumar Mukherjee. He has a stall at Ujan Boyra Bazar where he sells kerosene oil and other commodities. He has stated that on the 17th of Falgoon, 1366 B. S., he sold kerosene oil to Lalu Biswas sic who came to his shop at the said Bazar. In his examination‑in‑chief he has stated as follows:
"I hold a stall at Boyra Bazar of salt, kerosene oil, etc. There are only two shop sheds in the Bazar. The chop‑keepers of these sheds come with their merchandise and take the remain ing merchandise after sale to their respective houses. One of these two sheds belongs to me.
I know Lalu Biswas. On the 17th Falgoon, 1366 B. S., I sold kerosene oil to Lalu Biswas in my shop at Boyra Bazar. It was red kerosene oil. Lalu Biswas came to my shop with a bottle and purchased half a bottle of red kerosene oil from me. Lalu Biswas then went way. I also immediately there after wound up my shop and left for home.
Some vegetables, milk and sometimes fish are sold in the Boyra Bazar. In all about 25 to 30 (thirty) men came to the Bazar, including both the sellers and customers. The Bazar sits everyday at 7 or 7‑30 a. in. and ends at 9 or 9‑30 a.m. (The witness finds out Exh. 11 from the alamats and states. This is the bottle in which Lalu Biswas purchased kerosene oil from me on Pith Falgoon, 1366 B. S. The bottle contains red kerosene oil."
32. He was not at all shaken in the severe cross‑examination to which he was subjected. He did not repeat in Court the, hearsay which he stated to the Investigating Officer that he had heard in the said morning that there was a golmal with Naba Biswas over the harvesting of kalai crop. This omission is not sufficient to discredit this witness inasmuch as what he stated before the Investigating Officer was a mere hearsay. He is an independent witness, and there has been no suggestion of any ill‑feeling or enmity between this witness and the appellants. His evidence is impressive and we have no hesitation, whatsoever, to accept the same.
33. The next witness is P. W. 11 Abdul Aziz who was merely tendered by the prosecution. He was cross-examined on behalf of the State acid to some extent contradicted with reference to his statement made before the Investigating Officer.
It is with regard to this witness that Mr. Ataur Rahman Khan has urged that be was illegally prevented from using the state ment of the witness made before the Investigating Officer. The learned Additional Sessions Judge has noted as follows in the oi&r‑sheet in respect of the Court of Sessions.
"P. W. 11 Abdul Aziz is tendered by the prosecution but cross‑examined by the defence and discharged.
At this stage a petition is filed on behalf of the accused to confront the witness with a statement made by him before the I. O. as he has made statement before the Court in contra diction to the same. A witness cannot be allowed to be confronted with any statement made before the I. O. said to be in contradiction to any statement elicited in cross‑examination. The petition is, therefore, rejected. Another petition on behalf of the accused is again filed renewing the prayer made in the previous petition. It is rejected as no new ground has been made out.
34. In our opinion the learned Additional Sessions Judge misdirected himself when he did not allow the learned Advocate for the defence to use the statement which the witness made before the Investigating Officer and which was recorded under section 161 D of the Code of Criminal Procedure The defence was entitled to use such statement in order to contradict a prosecution witness even with regard to evidence given in cross‑examination. The proviso to section 161 of the Code of Criminal Procedure read as follows:
"Provided that, when any witness is called for the prosecution in such enquiry or trial whose statement has been reduced into writing as aforesaid; the Court shall, on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872."
The requirement of the aforesaid section is that the witness must be called for the prosecution. In fact P. W. 11 Abdul Aziz was called for the prosecution and tendered as a witness without, being examined‑in‑chief. Even though his evidence consisted merely of statements in cross‑examination, the defence was C entitled to use the statement of the witness taken under section 161 of the Code of Criminal Procedure in order to contradict the evidence of the said witness elicited in such cross‑examination. We, therefore, hold that the learned Additional Sessions Judge was not right in disallowing the prayer of the learned Advocate for the defence, as stated above. In these circumstances, we propose to rule out of our consideration the evidence of P. W. 11, Abdul Aziz, who, in any event, appears to be unworthy of credit.
35. Mr. Ataur Rahman Khan has invited us to draw an adverse inference against the prosecution for non‑examination of one Faizuddin. There is discrepant evidence as to what part of the occurrence was seen by this witness. Even if the said Faizuddin is a material witness, the prosecution has given sufficient explanation for not examining him. In this respect P. W. 5 Abdul Ali Biswas, on recall, at the instance of the Public Prosecutor, has stated as follows:
"Faizuddin has been gained over by the accused." We accept this explanation given on behalf of the prosecution, and we are, therefore, not prepared to draw any adverse inference against the prosecution because of the non‑examination of the said Faizuddin.
36. We would now consider the defence suggestion that the occurrence took place at the kalai khet earlier in the morning and that the deceased had, because of a not there, received the injuries as a result of which he died. The fact that kalai crop was harvested in the said morning by Lalu Biswas is admitted by P. W. 5 Abdul Ali Biswas. The witness has, however, emphatically denied any occurrence in the kalai khet as suggested by the prosecution.
37. Appellant Nawab Ali Biswas alias Naba Biswas alias Naba in his examination under section 342 of the Code of Criminal Procedure has stated as follows:
"I am owner of plot No. 5094. This was under borga to my co‑sharer, I myself sowed kalai (a kind of pulse) m it. I sowed pulse in plot No. 5191. Lalu Biswas uprooted those kalai plants. There was rioting at that place."
The fact that there was any occurrence earlier in the morning at the kalai khet is not stated by any other appellant. Even appellant Nawab .Ali Biswas alias Naba Biswas alias Naba does not state in his aforesaid examination that the deceased Lalu Biswas received any injury at the kalai field and that he died as a result of the injuries received there. The evidence of P. W. 1 Khaimuddin Sheikh, P. W. 2 Abdul Habib Biswas P. W. 3 Amullya Chandra Raha and P. W. 9 Nagendra Kumar Mukherjee totally destroys the defence suggestion that the deceased had received any injuries at the kalai field as a result of which he died sub sequently. We have already observed that there is no basis for the suggestion that was made in this behalf and the prosecution evidence in this case, as discussed above, disproves such a case. Even if there was some incident early in the morning at the kheshary kalai khet, it would furnish an extra and a more proxi mate motive for the later assault on the deceased. The fact that the deceased had gone to Ujan Boyra Bazar at the time as alleged by the prosecution and that he was coming back with a bottle of red kerosene oil is corroborated by discovery of the bottle by the Investigating Officer, the said bottle being marked as Exh. 11 in this case. At a demonstration by the learned Advocate for the defence in the trial Court it transpired that the oil appeared old and its colour was somewhat red. The fact that the body of the deceased was found in the inner yard of the house of Wajuddin is corroborated by the discovery of the body at that place by the Investigating Officer.
38. Thus, from the evidence of P. W. 1 Khaimuddin Sheikh P. W. 2 Abdul Habib Biswas, P. W. 3 Amullya Chandra Raha, P. W. 5 Abdul Ali Biswas and P. W. 9 Narendra Kumar Mukherjee as corroborated by the evidence‑in‑chief of P. W. 9 Majibar Rahman and the Investigating Officer, the charge against the appellants have been fully established. The following facts emerge from the aforesaid evidence:
(1) The deceased Lalu Biswas had gone to purchase a bottle of kerosene oil. He was coming with the kerosene oil at about 9 or 9‑30 a.m.
(2) He was waylaid, assaulted and carried away by the appellants in the inner yard of the homestead of Wajuddin.
(3) He was pressed down by all the appellants.
(4) While being thus pressed, appellant Nawab Ali Biswas inflicted the fatal wound at the back of the neck.
39. From the evidence discussed in the preceding paragraphs there is no escape from the conclusion that the appellants are guilty under section 302/34 of the Pakistan Penal Code. All the five appellants had caught hold of the deceased Lalu Biswas; they pressed him down on the ground, and, while the deceased was in the grip of the appellants, appellant Nawab Ali Biswas alias Naba Biswas alias Naba got hold of a tapping dao and inflicted an injury the inevitable result of which was the death of the deceased.
40. Mr. Ataur Rahman Khan has urged that the prosecution has not been able to prove that it was the common intention of the appellants to cause the death of the deceased. This intention has to be gathered from the facts and circumstances of the case. The weapon that was used and the nature of the injury caused on the body of the deceased in the manner and circumstances as proved by the prosecution leave no manner of doubt that the appellants are guilty of the charge which has been leveled against them.
41. Mr. Ataur Rahman Khan, concluded his arguments by saying that the judgment pronounced by the learned Additional Sessions Judge in itself shows that the case against the appellants is not satisfactory. This is not the impression that we have taken of the judgment. We think that in a well‑reasoned and good judgment the learned Sessions Judge has left no manner of doubt as the conclusion reached by him on an assessment of the prosecution evidence.
42. Lastly, Mr. Ataur Rahman Khan has addressed us on the question of the sentence of death passed on appellant Nawab Ali Biswas alias Naba Biswas alias Naba. He has invited us to reject the Reference made by the learned Additional Sessions Judge for the confirmation of the death sentence passed on this appellant inasmuch as the rest of the appellants, who have been awarded a sentence of transportation for life, were equally res ponsible for the death of Lalu Biswas. Mr. Khan has contended that there is hardly any justification for inflicting a higher sentence on appellant Nawab Ali Biswas alias Naba Biswas alias Naba when the other appellants have been sentenced to transporta tion for life.
43. We agree with the learned Advocate for the appellants, that, in the circumstances of the present case the moral and legal responsibility for the death of deceased Lalu Biswas is equally shared by all the appellants before us. All the appellants have fully contributed to the death of the victim in a joint venture and it is difficult to weigh and distinguish their respective con tribution in this respect. When a charge under section 302 read f along with section 34 of the Pakistan Penal Code has been established against a number of persons, they are all equally. guilty in the eye of law. We may add that in the present case, their moral responsibility is also the same. The learned Additional Sessions Judge has awarded a higher sentence, namely, death sentence on appellant Nawab Ali Biswas alias Naba Biswas alias Naba, because, according to him, the said appellant was a more active participant in the murderous assault on the said deceased. However, the appellant Naba Biswas has been under a sentence of death for about three months.
44. The sentence was passed on him on the 27th August 1960, and the appeal before us was admitted by a Vacation Bench of this Court on the 1st of September 1960. In spite of due expedition the case could not be made ready for hearing during the period when the Vacation Bench was sitting. Thus, even if the appellant deserves a higher sentence than the rest of the appellants, the agony of death sentence for near about three months, is, enough extra punishment. In these circumstances, we think that it would be sufficient to meet the ends of justice, if the death sentence passed on appellant Nawab Ali Biswas alias Naba Biswas alias Naba is reduced to one of transportation for life, and we hereby do so. There are precedents to justify such reduction of sentence.
45. In the result, the Reference is rejected with the modi fication of the sentence passed on the appellant Nawab Ali Biswas alias Naba Biswas alias Naba, as indicated above. The appeal in respect of the aforesaid appellant is also dismissed with the aforesaid alteration of the sentence passed on him. With regard to the other appellants, namely, Nawab Ali Sheikh alias Naba Sheikh alias Naba, Joynal Sheikh, Sheikh Gani and Eunus Ali alias Sheikh Eunus Ali, the appeal is dismissed and the sentence of transportation for life passed on each of them is hereby confirmed.
S. B./A. H.
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