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1. Arshed Ali has been found guilty by the unanimous verdict of the Jury on the charge of abetment of murder. He has been sentenced by the Additional Sessions Judge of Backerganj to death under Section 302 read with Section 109 of the Indian Penal Code. Under Section 374 of the Or. P.C. the proceedings have been submitted to this Court for confirmation and the accused has also preferred an appeal against his conviction.

2. The facts according to the case for the prosecution are as follows:

Lalsom Bibi, the principal witness in this case, has lived as the wife of five men. To how many of them she was legally married is not clear, but her marriage to the appellant Arshed Ali who was the fourth of her so-called husbands was certainly bigamous as it took place during the lifetime of the third Abdul Hussain who had not divorced her. After living with the appellant for a few months she left him and went to live in her father's bari. She was then one month pregnant. In Magh last she went through a form of nika marriage with the deceased Sher Ali. This enraged Arshed Ali and twice in the months of Falgoon and Chaitra, Jabed Ali who is Arshed Ali's dharma-bhai asked Lalsom to return to Arshed Ali anc threatened her when she refused to do so On the night of the 10th April (28th Chaitra) Sher Ali, Lalsom and her three children were sleeping in her hut. At a little before midnight Lalsom woke up hearing the noise of a scuffle. She heard Jabed Ali, whose voice she recognised, say "Let me go." She got up to light a lamp and then heard Arshed Ali saying "Jabed Ali, is the deed done." By the light of the lamp she saw that Sher Ali's viscera were protruding from a wound in his stomach and another wound on the left side of his chest. Her cries brought several neighbours to the scene and both Sher Ali and Lalsom told them that they had recognised Jabed Ali and Arshed Ali by their voices.

3. Sher Ali was taken by boat to Patuakhali, the Sub Divisional headquarter, where he arrived at, about 11 A. M. He was taken to the hospital and there his statement was recorded by an Honorary Magistrate from 3.30 to 4.10 p.m. He said that he had been wounded by Jabed Ali and Arshed Ali and that Jabed Ali inflicted the wound "with a dao. He also stated that he was wounded because he married Arshed Ali's wife. He died before sunset that afternoon. The doctor who held the post mortem examination found three incised wounds on the body, of which two were homicidal. In his opinion death was due to shock and haemorrhage from these two wounds.

5. In his charge to the Jury the learned Sessions Judge has said: "On Wednesday, the 27th Chaitra (9th April) Arshed Ali. was seen in Kalagachia village which adjoins Kewalumia walking towards the bari of Jabed Ali." But the evidence is that Arshed Ali was seen in the neighbourhood not on the Wednesday but on the Thursday afternoon. The fact of the case for the prosecution rests on a statement alleged to have been made by Sher Gazi and is supported by the evidence of his brother Mahomed Gazi who deposed that Sher Gazi said he had seen Arshed Ali on the previous afternoon. That the expression "the previous afternoon" cannot mean the afternoon of the previous day is clear from the statement of Lalsom Bibi in the First Information to the effect that her husband had told her in the afternoon of the day of occurrence that when he returned after noon of that day he saw Arshed Ali and Jabed Ali. This is a very serious misdirection since it was proved by witnesses who were examined by the Court to test the accused's plea of alibi, that he was present at Patuakhali as an accused in a case which was the last heard on the 10th April. Though this might not have prevented him being present at the murder he could not possibly have been at Kalagachia at the time that Sher Ali said that he saw him.

7. It is difficult to rely absolutely on the statements of the deceased and his wife since they are clearly untruthful on one important point, the period that elapsed between Lalsom Bibi leaving Arshed Ali and her marriage to Sher Ali. Lalsom Bibi's evidence is that she married Arshed Ali 4 years ago and after living with him 4 months she went to live at her father's house. Sher Ali stated to the Honorary Magistrate that she was at her father's bari for about 4 years. But the age of the child of which Lalsom Bibi says the accused is the father, is inconsistent with her having lived apart from the accused for as long as two years. If the accused had raised no objection to Lalsom Bibi leaving him for even two years there is no reason why he should have committed this murder. Whatever the truth may be we have no doubt that there was good reason to suspect the accused and that the true story of the illfeeling between the parties has been concealed.