1. The three appellants along with another were convicted under section 201, P. P. C. And sentenced to suffer rigorous imprisonment for two years each, by the Additional Sessions Judge, 2nd Court, Bakerganj.
2. The prosecution case, in short, is that in the afternoon of 20-I-65, while going to Bilbilash Hat P.W. 1 Abdul Huq and P. W. 4 Fazle Karim saw accused Abdul Karim beat his wife Rabeya Khatun as she did not convey her paternal land to her husband Karim in spite of requests. P. W. 2 Abdul Hashem and others also saw the assault and asked Karim not to assault his wife any more. At about 8 p. m.
3. When P. Ws. 1 and 4 were returning from the said Hat they learnt from P. W. 2Abdul Hashem that Rabeya Khatun had died. They all went to the house of Karim and saw Rabeya lying dead on the floor of his but. Some of them asked Karim not to bury the dead body without informing the authorities, but later on P. Ws. 2 and 4 saw the present accused-appellants and Abdul Karim along with others burying the dead body during the mid-night of that very night. P. W. 1 Abdul Huq learnt about it from them on the following morning and lodged a first information report (Exh. 1) at about 13 hours on 21-1-65 with the Police at Bauphal P. S. On the above allegations. The local police took up the matter, went to the locality, saw the grave of Rabeya Khatun in the house of accused Karim and held preliminary enquiry over the matter. After obtaining permission of the Sub-Divisional Magistrate, Patuakhali, P. W. 8' Sub-Inspector Abdul Wahed Khan exhumed the dead body of Rabeya from her grave on 22-1-65 in presence of constable P. W. 5, Ansar Commander P. W. 6 and other local witnesses, held inquest over the dead body and sent it to P. W. 3 Dr. Q. A. Siddtque, Sub- Divisional Medical Officer, Patuakhali for post-mortem examination. On receipt of the medical report he submitted final report in the unnatural death case and lodged a fresh first information report (Exh. 3) and after completion of investigation submitted a charge-sheet against the said Abdul Karim and the present appellants on various sections.
4. A competent Magistrate held preliminary enquiry into the case and committed accused Abdul Karim to face trial under section 302/201, P. P. C. And the present accused-appellants, under section 201, P. P. C.
5. Accused Abdul Karim was separately tried for an offence punishable under section 302, P. P. C. The present appellants along with Abdul Karim, were put on trial under section 201, P. P. C. In the case.
6. The plea of the accused was one of innocence. They asserted that Rabeya died a natural death and she was buried in normal courage of things. They also claimed that they did not participate in the burial of Rabeya nor were present at the time of her burial there. Accused Abdul Latif also took a plea of alibi.
7. Eight witnesses for the prosecution and none for the defence were examined in the case. Some documents and material exhibits were also produced before the Court. The learned Additional Sessions Judge considering the evidence and materials on record, convicted and sentenced the accused-appellants as stated above. Being aggrieved thereby, they have preferred this appeal.
8. Accused Abdul Karim is not an appellant here.
9. Mr. Akhtaruddin Ahmed, the learned Advocate appearing for the appellants has taken me through the judgment and depositions and contended that the charge against the accused has not been proved by the evidence on record ; that P. Ws. 2 and 4 are basically dishonest and in view of their contradictory statements in the two Courts, they cannot be relied on and that the learned Additional Sessions Judge has wrongly treated the police report (Exh.3) as the first information report in the case and that has seriously prejudiced the accused-- appellants.
10. The fact that Rabeya Khatun, wife of accused Abdul Karim died on 20-1-65 and her dead body was buried on the night following the day in the house of said Abdul Karim, is not at all disputed. There are sufficient evidence on record to show that accused Abdul Karim assaulted his wife Rabeya mercilessly in the afternoon of 20-1-65. P. Ws. 1, 2 and 4 have uniformly stated in their depositions that they saw the accused Abdul Karim beating his wife on 20-1-65. P. W. 2 has further stated that on seeing the assault on Rabeya, he along with others went to the house of Karim and requested him not to assault her any more. The evidence of. P. Ws. I, 2 and 4 also show that they learnt in the evening at about 8 p. m. That Rabeya had died as a result of the assault and on hearing that they went to the house of Karim and saw Rabeya lying dead on the floor Of his house.
11. The evidence of P. Ws. 5, 6 and 8 disclose that the dead body of Rabeya Khatun was exhumed from her grave on 22-1-65. P. W. 8 sent the dead body of Rabeya to P. W. 3 Dr. Q.A, Siddique, Sub- Divisional Medical Officer, Patuakhali for post---mortem examination. P. W. 5 Constable No. 907 produced the dead body to the Doctor identified the same before him. The doctor, P. W. 3 who held post-mortem' examination on the dead body of Rabeya Khatun found three injuries on her person.
12. P. W. 3 has given a vivid description of the injuries in his deposition. He has also opined that the death of Rabeya was due to the shock as a result of the injuries and also the asphyxia as a result of strangulation which were ante-mortem in nature and homicidal in character. There iq nothing on record to disbelieve the evidence of the doctor.
13. The evidence of P. W. 3 coupled with the evidence of P. Ws. 1, 2 and 4 prove beyond all reasonable doubt that Rabeya died on 20-1-65 as a result of assault and strangulation, in the manner as alleged by the prosecution.
14. The death or murder of Rabeya has not been challenged here. The main question for consideration in the case is whether the accused-appellants knowing or having reason to believe that an offence had been committed, caused any evidence of the commission of that offence to disappear, with the intention of screening, the ofender from legal punishment or in other words, whether the accused-appellants knowing that Rabeya had been killed by accused Karim, buried Rabeya Khatun or were present at the time of her burial there, with the intention of screening the offender Abdul Karim from legal punishment.
15. Let us test the' evidence on the point, P. W. 1 the informant did not see the burial of deceased Rabeya on the alleged night. He cannot, therefore. Say who buried her or participated in the burial of Rabeya Khatun. He only stated that P. W. 2 Abdul Hashem and P. W. 4 Fazle Karim reported to him next morning that Rabeya was buried by the present accused-appellants. His evidence is thus a hearsay one.
16. P. Ws. 2 and 4 do not support the prosecution case in the trial Court. P. W. 2 does not implicate the present accused --appellants as the persons who buried Rabeya Khatun but names H some other persons. P. W. 4 names only the accused Abdul Karim and some other people as the persons who buried Rabeya on the alleged night. They do not admit that they reported to P. W. 1, next morning that the present appellants buried Rabeya Khatun. The witnesses are thus supporting the defence version here. They deposed in the committing Court in favour of the prosecution. The attention of the witnesses was, therefore drawn to the committing Court's evidence by the public prosecutor and thereafter their evidence in the committing Court were put in under section 288, Cr. P. C. They stated in the committing Court that they saw the accused-appellants to bury the dead body of Rabeya on the fateful night, It is thus evident that they have given two different versions in two different Court and completely gone back on their statements given in the committing Court. In this volt-face of the witnesses, the learned Advocate for the accused-appellants has argued that P. Ws. 2 and 4 are basically dishonest and their evidence, whether of the trial Court or the committing Court, should altogether be left out of consideration.
17. A witness who gives contradictor, statements in the committing Court and in the trial Court with a motive other than stating the truth is a basically dishonest and untrustworthy witness. Where a witness is found to speak lie and perjure evidence in a case with a motive other than stating the truth, doubt is thrown on his statement which must go to the benefit o A the accused unless sits resolution is possible with reference other credible evidence and not on mere assumption regarding the motives by which the witness might have been guided in making the variant statements. This view receives support from the case of Adalat v. Crown (PLD 1956 F to 171).
18. The evidence of a hostile witness shall always be considered with great caution, because of its inherent defects. It is true that the evidence of a hostile witness should not be excluded entirely from consideration and that part of the evidence which fits in with other evidence on record should be accepted, even though on that point the witness had contradicted himself. But in view of the somersaults, the credibility of the witness having been shaken, his evidence cannot be given due weight. The evidence being contradictory and the witness being untrustworthy, it is for the Court to decide whether the whole of the evidence of the, witness should be rejected or the portion which fits in with the probabilities, facts and circumstances of the case should be accepted and how much weight should be given on that evidence.
19. In such circumstances if on scrutiny the Court finds other evidence on record to reconcile the conflict introduced by the hostile witness then the portion of his evidence which fits in with the other evidence in the case may be accepted to strengthen the other positive evidence on record.
20. But if there is no other evidence on record to support the prosecution case then the committing Court's. Evidence of a hostile witness will not alone be sufficient to warrant conviction of the accused. In this connection, the cases reported in 17 PLR (Dacca) 697 and 9 DLR 247 may be referred to.
21. In the instant case, there is no other evidence on record to support the committing Court's statements of P. Ws. 2 and 4. In the circumstances, even treating the committing Court's evidence of the witnesses put in under section 288, Cr. P. C., as substantive evidence, the prosecution case cannot be said to have been proved beyond reasonable doubt. It is risky to convict the accused solely on the basis of the committing Court evidence of the hostile witnesses without any evidence on record C to support the same. As indicated earlier, P. W. 1 did not see the burial of Rabeya himself. He has political rivalry with the accused. He has also contradicted' his earlier statement in the committing Court on material point. His evidence cannot be, used for corroborating the evidence of P. Ws. 2 and 4. The othot witnesses have not said anything against the accused. Thus there is practically no evidence on record to show that the present accused-appellants actually buried Rabeya on the alleged night. In the circumstance, in my opinion, the accused--appellants are entitled toy benefit of doubt and they must get the benefit of the same.
22. P. W. 1 lodged a first information report Exh. 1 in the case on 21-1-65. The police, however, registered an unnatural death case on that report and submitted a final report in the matter. A suo motu report was then lodged by the police and that -report being Exh. 3 was treated as a first information report in the case. A question has arisen here as to which of these reports should be the first information report in the case. Mr. Akhtaruddin Ahmed has made a grievance that the learned Sessions Judge has wrongly treated the police report as the first. Information report in the case and that has caused a serious prejudice to the accused-appellants.
23. It is now well established that any information relating t commission of a cognizable offence reduced to writing and duly signed by the informant and the information first in point of time n on the basis of which the police investigation has started is th first information report in a case. There are numerous authoritie on the point. In this connection, the cases reported in 5 D L R 369 and 16 P L R (Dacca) 345 may be referred to.
24. In the instant case, P. W. 1 has lodged an information giving full description of a cognizable offence and the police has reduced it into writing and the informant has duly signed it. It appears that the police also went to the spot on the basis of that report and took some preliminary steps on it. In the circumstances, it is not understood why the information given by P. W. I should not be treated as a first information report in the case. The report given by the Police long after the information given by P. W. 1 cannot, in the circumstances, be treated as they first information report.
25. Another thing to be pointed out here is that there cannot be two first information reports in a case.
26. It appears that the learned Additional Sessions Judge has used both the reports as first information reports in this case and marked them as Exhs. 1 and 3. Section 154, Cr. P. C. Contemplates only one first) information report and only one such report can go into evidencein a case. Law never permits two first information reports to be admitted in evidence but the learned Sessions Judge has admitted both the informations, Exits. 1 and 3 ac evidence, contrary to the provisions of law. The procedure adopted by the learned Judge has created complication both for the prosecution and the defence and in the circumstances, the accused can rightly complain that they have been prejudiced in the trial as they could not take contradiction from the informant with reference to the real first information report.
27. For the reasons stated above, this appeal is allowed and the order of conviction and sentence is set aside.
28. The accused-appellants shall be released forthwith if not required in any other connection.