সতর্কীকরণ! বিডি কানুনে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে বিডি কানুন কোন নিশ্চয়তা প্রদান করে না। বিডি কানুনে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
Wife Killing Case
73 DLR 83
On behalf of the Appellant
Mr Khandker Mahbub Hossain, Senior Advocate appearing for the appellant submits that the evidence of PW 4 Shahin Farazi, the only eye witness to the occurrence and son of the victim who stated that his father did not kill his mother and in fact she had committed suicide, clearly falsified the prosecution case. When there is clear evidence of an eyewitness who is none but the victim's son, there is no reason to rely on the evidence of the doctor and confession of the accused which is extracted on torture. Even if the confession made by the accused is taken to be true in its entirety, it would come out that the accused had no intention to kill the victim and the Occurrence was an unplanned one, which constitutes at best an offence of culpable homicide not amounting to murder as defined in section 304 of the Penal Code.
Mr Hossain then takes us through the confession made by accused Siddique Farazi and submits that an uneducated villager being unfed condition came back from a waz mahfil and did not get any food after returning home. This situation was followed by a quarrel receiving information about destruction of Brinjal saplings planted at his courtyard. All the circumstances and inaction of the victim in cooking food made a sudden provocation to the accused, out of which the occurrence took place. Mr Hossian refers to the cases of Muhammad Saleh va State, 17 DLR (SC) 420, Devku Bhikha vs State of Gujrat, AIR 1995 (SC) 2171 and Nawaz vs State 2019(1) SCALE, 718 in support of his submission.
Mr Hossain argues that in view of the Laws Continuance Enforcement Order, 1971 read with article 149 of the Constitution, the pre-liberation decisions of Pakistan Supreme Court has binding effect on the High Court Division of the Supreme Court of Bangladesh. In support, Mr Hossain refers to Constitutional Law of Bangladesh, Third Addition by Mahmudul Islam; Unwritten Constitution of Bangladesh by Justice MA Matin and the case of Ahmed Nazir vs Bangladesh, 27 DLR 199.
Mr Hossain further submits that even if for the sake of argument the evidence of PW 2 Dr. Harunur Rashid is relied on and the autopsy report (Exhibit-4) is taken to be correctly prepared and on that basis it is held that the victim was throttled to death by her husband, the limit or duration of provocation is to be considered, which always varies from man to man, culture to culture and class to class and depends on the facts and circumstances of a particular case. In the present case the appellant was an uneducated villager whose duration of provocation may continue for a bit longer period and cause the death of the victim under throttling. This continuation of provocation for a bit longer period would not make the accused liable for murder, if it is not intended and premeditated. Mr Hossain further refers to the case of Atma Ram vs The State, 1967 CrLJ (Vol 73 N.469) 1697 to support the above contention.
On behalf of the Respondent
Mr Md Moniruzzaman, learned Deputy Attorney-General appearing for the State on the other hand submits that in the fateful night there was no other person in the house of occurrence except the accused-appellant. In such a position it was his duty to explain the cause of death of his wife, which he totally failed. This is correct that he did not explain the cause of death while made confession before the Magistrate. Nevertheless, it would be clear from the evidence of the expert witness, namely, PW 2 Dr. Harunur Rashid that the cause of her death was asphyxia due to throttling which was antemortem and homicidal in nature. The ecchymosis (cfee) as stated by the Doctor was post-mortem and if this part of his evidence and confession of the accused are read together, it would be crystal clear that the accused-appellant killed his wife by throttling. Such throttling took a reasonable time to continue with the pressure on her neck, which by any test of reasonableness cannot be construed as an offence of culpable homicide as made punishable in section 304 of the Penal Code.
PW 2 Dr. Harunur Rashid, the expert witness stated in a clear language that the injuries found on the dead body were not likely to be caused if the accused knocked down the victim from front side as stated in the confession. It further shows that in order to save himself and escape the liability of murder, the accused tried to camouflage the mode of occurrence mentioning just one knock to be the cause of her death, which is very unlikely even in view of common sense. From the facts and circumstance of the present case it has also become clear that the statement of PW 4 Shahin Farazi, which he made before the Magistrate was true and which he deposed on the dock was not correct. It further appears from the evidence of PWs 7 and 9 that there was finger impression on the neck of the victim and PW 4 Shahin Farazi at the earliest point of time disclosed that his father killed his mother by throttling. If all the facts and circumstances and the above discussed evidences are considered together, it would establish the allegation of murder against the accused.
Learned Sessions Judge considered all the evidences and found the accused guilty under section 302 of the Penal Code and rightly convicted and sentenced him. The decisions of Pakistan Supreme Court before Emergence of Bangladesh and the other decisions of different States of India may have persuasive value, but not binding upon this Division. In some cases our High Court Division decided otherwise. On all the counts, the appeal is liable to be dismissed.
আপনার কাঙ্খিত নজীরটি খুঁজে পাননি! এ বিষয়ে আরও নজীর পেতে নিচের বাটনে ক্লিক করুন।
