IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

PRESENT:

Mr. Justice Hasan Foez Siddique,C.J. Mr. Justice Obaidul Hassan

Mr. Justice M. Enayetur Rahim

CRIMINAL APPEAL NOS.123 OF 2014 WITH CRIMINAL APPEAL NO.118 OF 2014 WITH JAIL APPEAL NO 17A OF 2015

(From the judgment and order dated 06-07-2014 and 07-07-2014 passed by the High Court Division in death Reference no. 93 of 2008 with Criminal Appeal no. 6318 of 2008 with Criminal Appeal No. 6303 of 2008 with jail Appeal Nos. 866, 867 and 868 0f 2008)

Rafiqul Islam Sheikh  :  .  .    .  .   Appellant (In Crl. A. No.123 of 2014)

Md. Mohon Khalifa  :  .       .      .   Appellants

 (In Crl. A. No.118 of 2014)

Md.  Mohon  Khalifa  and :  .       .      .   Appellant others  (In Jail A. No.17A of 2015)

-Versus-

The State  :  .       .      .   Respondents

(In all the appeals)

For the Appellant  :  Mr. Mansur Habib, Advocate with (In  Crl.  A.No.  123  of  Mr.  Shamsul  Haque,  Advocate 2014)  instructed  by  Mr.  Md.  Ziaur

Rahman, Advocate-on-Record.

For the Appellant  :  Mr.Ziaur Rahman, Advocate –on – (In  Crl.  A.No.118  of  record on behalf Mr. Mahbubur 2014)  Rahman, Advocate-on-Record.

For the Appellants  :  Mr. Ziaur Rahman, Advocate –on (In Jail. A.No.17A  of  –record.

2015)

For the Respondent  :  Mr.  Bashir  Ahmed,  Deputy (In Crl. A. No.123 of  Attorney General instructed by 2014 and Crl. A. No. 118  Ms. Shirin Froz, Advocate-on- of 2014)  Record

For the Respondent  :  Mr.  Bashir  Ahmed,  Deputy (In Jail A. No. 17A of  Attorney General (appeared with 2015)  the leave of the court)

Date of Hearing  :  16th day of February, 2022

Date of Judgment : The 22th day of February, 2022

J U D G M E N T

M.  Enayetur Rahim,  J:These appeals are directed against the judgment and order dated 06.07.2014 and 07.07.2014 passed by a

Division Bench of the High Court Division in Death Reference Case No.93 of 2008 heard along with Criminal Appeal No.6318 of 2008, Criminal Appeal No.6303 of 2008 and Jail Appeal Nos. 866 of 2008, 868 of 2008, accepting the reference and dismissing the appeals and thereby confirming the judgment and order of conviction and sentence dated 03-09-2008 passed by the learned Additional Sessions Judge, 2ndcourt, Bagerhat in Sessions Case No. 182 of 2006.

Facts, relevant for disposal of the  appeals are as follows:

The present condemned prisoner-appellants along with another were put on trial before the Additional Sessions Judge, 2nd Court, Bagerhat in Sessions Case No. 182 of 2006 arising out of Morolgonj Police Station Case No. 22 dated 12-02-2006 corresponding to G.R case no. 54 of 2006 to answer charge under sections 302/34/109 of the Penal Code to which they pleaded not guilty and claimed to be tried.

The prosecution case, in short, is that PW-1 Md.Mehedi Hasan (Liton) elder brother of the victim Enamul Hasan limon on 12.2.2006 lodged a First information Report with the Morolgonj Police Station alleging, inter alia, that he along with his deceased younger brother Enamul Hasan Limon used to run a shop at Morolgonj near Nobboirashi Bus stand. On 2.2.2006 at about 9.00' clock at night the condemned prisoners Rafiqul Islam Sheikh, Md. Mohan Khalifa and Obaidul Howlader and others came to his shop and asked his deceased younger brother to go with them. The informant after closing the shop came to home and found that his brother had not reached home. On the very next day when the informant asked the aforementioned three persons regarding the where about his brother, they did not give any satisfactory information. On 12.2.2006 at about 11.00 o'clock the local boys were playing cricket and at that stage their cricket ball fallen into the new boundary of one Alamgir. Then some boys entered into the boundary and saw the legs of a man open and the whole body was covered by heap of sand. They raised hue and cry while the people of the locality along with the informant and others attended the said place of occurrence, and found two legs of dead person outside the heap of sand. Thereafter they informed the Police Station; police having attended the said place of occurrence removed sand and recovered a dead body. The informant and his father as well as others identified the dead body to be of Enamul Hasan Limon. At the time of recovery of the dead body a golden chain with locate, 3 finger ring and one mobile set was not found with the dead body. On the basis of said written ejahar Morolgonj Police Station Case No. 22 dated 12.02.2006 was started against the present condemned prisoners.

After completion of investigation Police submitted charge sheet against the 4 (four) persons including present condemned prisoners under sections 364/302/207/379/34/411 of the Penal Code.

In order to prove the charge against the accused the prosecution examined 17(seventeen) witnesses. The defense cross-examined the said witnesses and also examined 3(three) defense witnesses.  

After conclusion of the trial the learned Additional Sessions Judge, 2nd Court, Bagerhat found guilty of charge leveled against the condemned prisoners under sections 302/34 of the Penal Code and thereby sentenced them to death by hanging and also to pay a fine of Taka 10,000.00 each. The learned Additional Sessions Judge transmitted the record of the case to the High Court Division for reference and accordingly Death Reference No. 93 of 2008 was registered.

Against the judgment and order of conviction and sentence the condemned prisoner Md. Mohan Khalifa preferred Jail Appeal No.868 of 2008 and Criminal Appeal No. 6303 of 2008. Ohidul Hawlader and Rafiqul Islam Sheikh preferred Criminal Appeal No. 6318 of 2008 and condemned prisoner Ohidul Howlader filed Jail Appeal No.867 of 2008 and Rafiqul Islam Sheikh filed Jail Appeal No. 866 of 2008. The Death Reference No. 93 of 2008 along with the appeals were heard by a Division Bench of the High Court Division and by the impugned judgment and order the High Court Division accepted the reference and dismissed all the Appeals and confirmed the death sentence passed by the Trial Court against the present appellants.  

Being aggrieved by the  aforesaid judgment and order condemned prisoner Rafiqul Islam Sheikh has preferred Criminal Appeal No. 123 of 2014, Md. Mohon Khalifa has preferred Criminal Appeal No.118 of 2014 and condemned prisoner Md. Mohon Khalifa and Ohidul Hawlader have preferred Jail Appeal No.17A of 2015 before this Division.

Mr. Mansur Habib, appears with Mr. Shamsul Haque, learned Advocates, for the condemned prisoner Rafiqul Islam Sheikh submits that the trial Court as well as the High Court Division has committed serious error in convicting the said condemned prisoner, relying on  the confessional statement allegedly made by him which is not true and voluntary. Under compelling circumstances he made the said statement before the Magistrate concerned. Deceased was lastly found with the accused persons at 9 pm on 2-2-2006 thereafter the deceased was found missing for long 10 days and finally his dead body was recovered from a stack of sand within under constructed building of Alamgir at Sarelea, so the condemned prisoner has got no complicity with the murder and the theory of last seen will not be applicable in this particular case.  

He further submits that the condemned prisoners in their respective confessional statement stated that, they killed the victim by napkin (MvgQv) through strangulation but the postmortem report of the deceased state that. “Transacted trachea cut mark present on 3rd cervical vertebra.” The witnesses are the interested persons and enimical to the condemned prisoner and thus, their evidence should be left out of consideration in finding the guilt of the said condemned prisoner. There has been inordinate delay of 10 days in lodging the F.I.R not giving explanation in the column-4 and 5 of the FIR nor in the bottom of the FIR.

Mr. Ziaur Rahman, learned Advocate, appearing for the condemned prisoners Md. Mohon Khalifa and Ohidul Hawlader submits that the High Court Division acted illegally in maintaining the order of conviction of sentence of the condemned prisoners passed by the trial Court relying on the alleged confessional statements as recorded was not voluntary, recorded without following the mandatory provisions, Rules and all the statements recorded were more or less same which is absurd and which makes the statements unreliable. He further submits that, High Court Division did not consider that P.W. 3 Shahida Begum and P.W.8 Md. Tajul Islam admitted during their cross examination that they lodged a G.D. with the Morolgonj Police Station when their deceased son was missing. But the fact stated in the General Diary and the fact revealed in the First Information Report was contradictory. The names of the condemned prisoners were not mentioned in the General Diary and as such the impugned judgment and order is liable to be set aside. Then Mr. Rahman also submits that, the post mortem report and the statement of the convict appellant does not match which creates doubt about the veracity of the statements made by the condemned prisoners and as such the impugned judgment and order is liable to be set aside.

Mr. Bashir Ahmed, learned Deputy Attorney General, appearing for the State submits that the trial Court and as well as the High Court Division on proper assessment of evidence on record legally and rightly convicted the appellants.

Mr. Bashir Ahmed referring to the confessional statement under section 164 of the Code of Criminal Procedure made by condemned prisoners Mohon Khalifa, Rafikul Islam Sheikh and Ohidul Hawlader couple with the evidence of P.W-10 the Magistrates who recorded the said statements submits that the High Court Division on proper consideration of the same has rightly arrived at a finding that the said statements are true and voluntary and the P.W-10 having complied with the mandatory provision of section 164 and 364 of the Code of Criminal Procedure recorded the same and as such the trial Court and the High Court Division in convicting the condemned prisoners did not commit any error or illegality. Further, in view of the provision of section 30 of the Evidence Act, in a joint trial there is no bar to take consideration of the confessional statement of an accused against other accused in the light of other corroborative evidence.

We have considered the submissions of the learned Advocates for the respective parties, perused the judgment of the trial Court as well as the High Court Division, the evidence adduced by the prosecution and defense and also the statements under section 164 of the Code of Criminal Procedure made by the condemned prisoners. In the instant case it is the prosecution case that the assailants murdered victim Enamul Hasan Limon.

The following injuries were mentioned in the Post Mortem report of Enamul Hasan Limon:

1. Transacted neck attached slightly posterior.
2. Scalp- Decomposed.

There is also elaborate illustration stated that— “Transected neck transected trachea cut mark present on 3rd cervical vertebra”

Death was “due to hemorrhage and shock resulting from above mentioned injuries, which were ante-mortem and homicidal in nature.”  

In the instant case condemned prisoners Mohon Khalifa, Rafiqul Islam Sheikh and Ohidul Hawlader made confessional statements under section 164 of the Code of Criminal Procedure before the Magistrate concerned.

The confessional statement under section 164 of the Code of Criminal Procedure as made by condemned prisoner Mohon Khalifa, exhibit-4-B is as follows:

ÒAvwg f¨vbPvjK| Avgvi GK †evb gwnjv Kwgkbvi| bvg gwiqg Av³vi gwY| Avmvwg iwdKzj ,

Awn`yj, g„Z wjgb Ges Avwg eÜz| Avgiv GKmv‡_ MuvRv ‡LZvg| wjgb Avgv‡`i mv‡_ MuvRv †LZ| NUbvi ZvwiL 2 †deªæqvwi 2006 wLª: Avmvwg iwdK ZLb wRDaviv‡Z B‡Ui fvUvq KvR K‡i| Ab¨

mgq f¨vb Pvjvq| NUbvi 8/10 w b Av‡M iwdKzj, Avwg, Awn I wjgb Pvi Rb wg‡j nvwg gv÷v‡ii evwo‡Z e‡m, Rjv RvqMvq e‡m MuvRv Lvw”Qjvg| wjgb Avmvi 10 wgwbU Av‡M Avgiv wVK Kwi ‡h, wjgb‡K †g‡i †dj‡j Zvi †PBb, AvswU w`‡q UvKv n‡e| GB cÖ¯Íve †`q iwdKzj| Awn yj AvcwË K‡i| e‡j †h, G‡Z cwiw¯’wZ Lvivc n‡e| Zvi AvZ¥xq-¯^Rb Av‡Q| mgm¨v n‡e| ZLb iwdKzj e‡j

†h, wKQ zn‡ebv KviY Avjøvn mv‡_ Av‡Qb| wKš‘ Hw b wKQz nq bvB| iwdKzj wRD aviv P‡j hvq| NUbvi GK yBw b Av‡M iwdKzj †gvijMÄ Av‡m| Avgv‡`i mv‡_ †`Lv K‡i| Avgv‡ i Awf‡hvM K‡i Zv‡K mnvqZv Kwiwb| NUbvi w`‡b Avwg †ejv ev‡ivUv †_‡K i‡Wi †`vKvb`vi Bw ªm wgqvi †jvnvi W UªvK †_‡K bvgv‡Z ïiæ Kwi| bvgv‡Z mܨv n‡q hvq| f¨vb Mvwo‡Z K‡i iW cwienb Kwi| iwdK e‡j

†h, wjgb †K †W‡K †`| Avwg wjgb‡K ewj †h, iwdKzj Wv‡K, †klev‡ii gvj bvwg‡q †i‡L wjg‡bi †`vKv‡b †h‡q †`wL wjgb †bB| H w`b fv‡M 20 UvKv cvB| 50 UvKv m`©v‡ii Kv‡Q †_‡K ‡bB| 200 UvKv gv‡K †`B| evwK UvKv c‡K‡U wb‡q MuvRvi Avm‡i e‡m hvB| †mLv‡b GKUv wewìs G hvB| †mLv‡b mevB e‡m MuvRv LvB| Avwg wb‡P, wjgb ga¨ wmuwo‡Z, wjg‡bi evg cv‡k Awn yj Avi wcQ‡b iwdKyj emv wQj| Avgvi gvRvq MvgQv wQj| iwdKyj Avgvi KvQ †_‡K MvgQv †P‡q †bq| Avwg †`B| †m e‡j kxZ jv‡M| nVvr K‡i iwdKzj MvgQv w`‡q wjg‡bi Mjvq cu¨vP w`‡q a‡i| wjgb QUdU K‡i| iwdKzj Avgv‡`i Mvwj w`‡q e‡j, kvjviv GLb a‡ivbv †K‡bv? Avwg cv †P‡c awi| Awn` nvZ †P‡c a‡i| wjgb gviv hvq| Awn`yj †PBb, AvswU †Lv‡j| iwdKzj Avgv‡K evwj Lyi‡Z e‡j| Avwg evwj Lywi| mevB wg‡j Lywi| wjgb‡K evwj Pvcv w`B| iwdKzj †PBb, AvswU, Nwo, †gvevBj wb‡q hvq| MZKvj Avm‡ii bvgv‡Ri c‡i cywjk Avgv‡K †MÖdZvi K‡i|Ó

The confessional statement under section 164 of the Code of Criminal Procedure as made by condemned prisoner Rafiqul Islam Sheikh, exhibit-4-A is as follows:

“Avwg Mixe gvbyl| A‡bK K‡ó msmvi PvjvB| kxZKv‡j B‡Ui fvUvq BU KvwU| Ab¨ mgq f¨vb PvjvB| f¨vb Pvwj‡q 30/40 UvKv cvB| Zv w`‡q msmvi P‡jbv| wi·v wK‡bwQ mwgwZi UvKvq| †mB wKw¯Í †kva Ki‡Z nq| †jvf Ges Afv‡ei Kvi‡b GB KvR K‡iwQ| wbnZ wjgb Avgvi eÜz| Ii Kv‡Q †PBb, AvswU, †gvevBj _v‡K, G¸‡jvi Rb¨ †jvf nq| NUbvi 10 w`b Av‡M †gvnb Avi Awn`y‡ji mv‡_ MuvRv †L‡Z e‡m hyw³ Kwi †h, wjgb †K †g‡i Zvi wRwbmcÎ †e‡P wi·vi wKw¯Í ‡kva Kiv hv‡e| NUbvi w b weKvj 5 Uvi w`‡K wRDaviv ¯^cb †Pqvig¨v‡bi BU fvUv †_‡K g‡ijMÄ kn‡i Avwm| H w b wQj

2 ZvwiL| ivZ 8 Uvi c‡i Avwg, Awn` I †gvnb (g„Z) wjgb †K †W‡K wb‡q Avwm MvuRv LvIqvi K_v e‡j| wjgb I MvuRv †LZ| mevB wg‡j DËi mivwjqv (evm ÷¨v‡Ûi DËi w`‡K) GKwU wbgx©qgvb evwo‡Z †h‡q wmuwoi Dc‡i ewm| mevB wg‡j MuvRv LvB| GK ch©v‡q ‡gvn‡bi MvgQv gv_vq w e e‡j

†P‡q wbB| Avwg wcQ‡b emv wQjvg| †gvnb cv‡qi Kv‡Q| Awn` Zvi cv‡k wjg‡bi cv‡k wQj| Avwg

MvgQv w`‡q wjg‡bi Mjv †cwP‡q †V‡m awi| wjg‡bi kixi vcv vwc K‡i| Avwg ‡gvnb Avi Awn`‡K

mvnvh¨ Ki‡Z ewj| Awn` gyL I nvZ †P‡c a‡i| †gvnb cv †P‡c a‡i| wjgb gviv hvq| Zvi Mv †_‡K

†PBb, AvswU, †gvevBj Awn`yj †Lv‡j| †gvn‡bi Kv‡Q †`q| Avgiv mevB wg‡j wjgb †K H N‡ii

Kv‡Ri Rb¨ Avbv evjyi g‡a¨ jywK‡q †dwj| †gvnb Avgv‡K e‡j †h, Avwg †hb H wRwbm¸‡jv ‡bB| gvj ¸‡jv wb‡q Avwg gv‡qi Kv‡Q †`B| Avgvi gv wR‡Ám K‡i †h, Avwg G¸‡jv †Kv_vq †c‡qwQ| Avwg NUbvi K_v ewj| yBw b c‡i Avwg wRDaviv P‡j hvB| BU fvUvq KvR Kwi| MZKvj weKv‡j mܨvi

c‡i cywjk Avgv‡K a‡i †d‡j, GB Avgvi e³e¨| ”

The confessional statement under section 164 of the Code

of Criminal Procedure as made by condemned prisoner Ohidul Hawlader, exhibit-4-C is as follows:

ÒAvwg wi·v PvjvB| wjgb, iwdK, †gvnb Avgiv eÜy nB| GKmv‡_ MuvRv †LZvg| NUbvi 8/10 w`b Av‡M iwdKyjmn Avgiv nvwg` gv÷v‡ii evmvi cv‡k e‡m MuvRv LvIqvi mgq e‡j †h, wjgb†K †g‡i

†d‡j †Pb, AvswU, wb‡q hv‡e| Avwg wZeª AvcwË Kwi| ewj †h, mK‡ji fvB †evb AvZ¥xq mRb Av‡Q|

GUv Ki‡j evm ÷¨vÛ GjvKv Mig n‡q hv‡e| GUv Kiv hv‡ebv| Avgiv P‡j hvB| wjgb H w b ILv‡b G‡mwQj| 10/12 w`b c‡i iwdKyj wRDaviv †_‡K Avevi Av‡m| iv‡Z Avev‡iv MuvRv †L‡Z hvB| nvwg` gv÷v‡ii evmvi cvk w`‡q †h‡q Iqvj Kiv evwo‡Z hvB| cyKyiNv‡U e‡m MuvRv †L‡Z _vwK| iwdKyj

†gvn‡bi KvQ †_‡K MvgQv wb‡q nVvr K‡i wjg‡bi Mjvq †cwP‡q a‡i| wjg‡bi kixi vcv wc K‡i|

iwdKyj Mvwj †`q| ï‡qv‡ii ev”Pviv GLb aibv| ZLb Avwg wjg‡bi nvZ †P‡c awi| †gvnb cv †P‡c

a‡i| kwi‡ii Dci †P‡c e‡m| wjgb gviv hvq| †PBb, AvswU Avwg wjg‡bi kwii †_‡K Lywj| †gvnb evwj‡Z MZ© K‡i| mevB wg‡j evwji g‡a¨ wjg‡bi †`n cy‡Z ivwL| Avgiv P‡j Avwm| H w b c‡i

wjg‡bi fvB wjUb †K wb‡q Avwg wjgb †K LyR‡Z †ei nB| Avwg nZ¨vi NUbv KvD‡K ej‡Z cvwiwb|

Avgvi ey‡K Lye Kó| GB Kw`b Kó wb‡q †ewo‡qwQ| MZKvj weKv‡j cywjk Avgv‡K evwo †_‡K a‡i

wb‡q Av‡m”

P.W-10 Soroj Kumar Nath, the then 1st class Magistrate working at Bagerhat recorded the statements under section 164 of the Code of Criminal Procedure of condemned prisoners 1. Rofiqul Islam, 2. Mohon Khalifa 3. Ohidul Islam and accused

Jorina Begum respectively. He proved the said confessional statements, exhibits-04, 04A, 04B, 04C and his signatures

thereon, exhibits-04A, 04A1-8, 04B, 04B1-8 and 04C, 04C 1-9,

4, 4/1-8 respectively. The said witness in his deposition stated that he recorded the said statements complying with the mandatory provision of law and having been satisfied as to its truth and voluntaries he signed on the memorandums.

At the time of examination of the condemned prisoners under section 342 of the Code of Criminal Procedure said incriminating fact had brought to the notice of them but they

did not say anything with regard to the said statements.

We have also examined exhibits-04 the confessional statement of accused-Jarina Begum mother of condemned prisoner Rafiqul Islam Sheikh.  Having examined the confessional statements of the present condemned prisoners we are of the opinion that in recording the said statements, the P.W-10 had complied with the relevant provisions of law. Thus, there is

no scope to say that said statements are not true and voluntary.

It is now well settled that conviction can be based solely relying on confession of the maker of it, if found true

and voluntary, though retract subsequently.   

Having regard to the fact that in the instant case there

is no eye witness of alleged murder. But PW-1, the informant Mehedi Hasan Liton categorically deposed to the effect:

"-------------MZ 2-2-06 Zvwi‡Li NUbv Abygvb ivZ 9;00 NwUKvq| Avwg I Avgvi †QvU fvB Gbvgyj nvmvb wjgb GK‡Î ewmqv Kw¤úDUvi d‡Uv÷¨vU †ókbvix †`vKvb Kwi‡ZwQjvg| beŸBiwk evm ÷¨vÛ G Avgv‡`i †`vKvb| Avmvwg Awn yj, iwdKyj Ges †gvnb Avgv‡`i †`vKv‡bi mvg‡b Avwmqv †gvnb Avgvi †QvU fvB wjgb †K Wv‡K| Avgvi †QvU fvB wjgb evwni nBqv Avmvwg‡`i m‡½ hvq| Avwg iv‡Z †`vKvb eÜ K‡i evwo‡Z wdwiqv wjg‡bi †LvuR Kwi‡j evwoi †jvKRb e‡j †h, wjgb ZL‡bv evwo‡Z Av‡m bvB| ZLb wjg‡bi †gvevB‡j wis w`‡jB eyS‡Z cvwi †h, Zvnvi †gvevBj †dvb eÜ| mKv‡j Avwg †`vKv‡b Avwmqv Avmvwg Awn yj, iwdKyj Ges †gvnb †K wjgb †Kv_vq g‡g© wR‡Ámv Ki‡j Zvnviv Rvbvq Zvnviv wKQy Rv‡bbv| `ycy‡i ch©šÍ wjg‡bi †Kvb †LvuR Lei bv cvBqv †`vKvb eÜ K‡i

evwo‡Z hvB Ges AvZ¥xq mRbmn wjg‡bi †LvuR Ki‡Z _vwK| mKj AvZ¥xq mR‡bi evwo‡Z †LvuR Kwi 12/2/2006 ZvwiL ch©šÍ| 12-2-2006 Bs ZvwiL mKvj 11;00 NwUKvi mgq Avgv‡`i evwoi wcQ‡bi w`‡K Iqvj †Niv AvjgwMi †nv‡m‡bi be wbwg©Z evwoi g‡a¨ †QvU ev”Pv‡`i wµ‡KU ej cwo‡j ev”Pviv AvjgwMi †nv‡m‡bi evwoi Iqv‡j wfZ‡i ej LywR‡Z †M‡j evwji ¯Íy‡ci wfZ‡i GKRb gvby‡li cv †`wLqv wPrKvi †`q| H Lei Avgvi evwo‡Z †cŠuQvB‡j Avgvi evwoi †jvKRb _vbvq Lei †`q| _vbv n‡Z cywjk Avwmqv evwj mivBqv Avgvi fvB‡qi (wjg‡bi) jvk D×vi K‡i| Avgvi fvB wjg‡bi jv‡ki mwnZ Zvnvi wbK‡U _vKv †mvbvi †Pb, AvswU, †gvevBj †dvb cvIqv hvq bvB| ...................................................| Avmvwgiv Avgvi fvB wjgb †K Lyb Kivi mg¯Í NUbv ¯^xKvi K‡i Ges Avmvwg iwdKy‡ji gv Avmvwg Rwibv †eM‡gi wbKU nB‡Z Avgvi fvB wjg‡bi e¨venvh©†mvbvi †PBb, AvswU, †gvevBj †dvb cywjk Avmvwg‡`i ¯^xKviw³ g‡Z D×vi K‡i| AvmvwgMb ïaygvÎ †jv‡fi Kvi‡b Avgvi †QvU fvB wjgb †K wbg©g fv‡e nZ¨v K‡i|''

This witness identified the condemned prisoners on the

dock.

The other prosecution witnesses such as, P.W.-2 Fatema Akter Jhorna, P.W.3 Sahida Begum, P.W.4 Md. Al Amin, P.W.5 Md. Humayun Kabir Talukder, P.W.6 Md. Anwar Hossen, P.W. 7 Poltu Hawlader also corroborated the said ascertains of the informant. They are also made similar statements before the trial Court.

P.W-8 Md. Tajul Islam Hawllader deposed that:

""wfKwUg wjgb Avgvi †QvU †Q‡j| MZ 2-2-2006 Bs Zvwi‡L Avwg kiY‡Lvjv cwievi ciKíbv Awd‡mi Kg©Pvix| Awdm Kg© †k‡l 1 wU jvD wb‡q evwo wdwievi c‡_ fvB fvB G›UvicªvB‡R bvwgqv 2 †Q‡ji †`vKv‡b hvB I jvDwbqv †QvU †Q‡j‡K jvDwU evmvq w`‡q Avm‡Z ewj| ZLb Avmvgx †gvnb, iwdKyj, Awn yj GB 3 Rb wfKwUg wjg‡bi mv‡_ K_v ej‡Z †`wL| Zvici Avwg evRv‡ii wfZ‡i hvB|

Avgiv AvZ¥xq mRb mn wjg‡bi †LvuR Lei wb‡Z _vwK wKš‘ †Kvb †LvuR Lei 12-2-06 Bs ZvwiL mKvj

ch©šÍ | Avwg IBw b Lyjbv‡q wQjvg| Avgv‡K IBw b mKv‡j †gvevBj †dv‡b Rvbvb nq AvjgwMi Gi †`Iqvj †Niv wbg©vbvaxb evoxi evjyi ¯Í~‡c 1 Rb †jv‡Ki cv †`Lv hvB‡Z‡Q| Avwg Zr¶Yvr Lyjbv nB‡Z Avwmqv Rvwb‡Z cvwi †h wjg‡bi jvk evjyi ¯Í~c nB‡Z cywjk D×vi K‡i g‡M© cvVvBqv‡Q| jvkwU wjg‡bi wQj cwPqv MÜ evwni nBqvwQj| (µ›`biZ)| IB w`bB †gvnb †K cywjk †MªdZvi K‡i weKv‡j

Avgvi †Q‡j †g‡nw` nvmvb wjUb gvgjv iæRy Kwi‡j †gvnb Avgvi cyÎ wjgb †K nZ¨v Kwievi NUbv msNwWZ Kwievi K_v ¯^xKvi K‡i Zvnvi mn‡hvMx iwdKyj, Awn yj wQj cywjk Gi wbK‡U I ¯’vbxq †jvKR‡bi mvg‡b ¯^xKvi K‡i| ......... c‡i g¨vwR‡÷ª‡Ui wbKUI ¯^xKv‡ivw³ w`qv e‡j †h Mjvq MvgQv †cuPvBqv Avmvwgiv dvk w qv wjgb †K gvwiqv evwji ¯Í~‡ci wb‡P jvk ¸g Kwiqv iv‡L|''

The defence has failed to shake the evidence of the said

PWs in any manner.

One of the accused of this case Jarina Begum in her

statement made under section 164 of the Code of Criminal

Procedure, exhibit-4 stated to the effect:

ÒAvR †_‡K ev‡iv w`‡bi gZ Av‡M, 2 Zvwi‡L,Avgvi †Q‡j iwdKyj mKvj 8 Uv 9 Uvi w`‡K Avgvi

Kv‡Q GKwU Nwo, GKwU †PBb , wZbwU AvswU, GKUv †gvevBj †mU GKwU cwjw_b KvM‡Ri c¨v‡K‡U K‡i Avgv‡K G‡b †`q| Avwg Zv‡K wRÁvmv Kwi †m Zv †Kv_vq †c‡q‡Q| iwdKyj e‡j †h, †m wb‡R

Zvi eÜz Awn yj I mwn , GB wZb Rb wg‡j Zvi eÜz Gbvgyj †K †g‡i‡Q| Gi ci G¸‡jv wb‡q

G‡m‡Q| Avgvi cÖ‡kœi Rev‡e †m Rvbvq †h, †m bZzb GKwU evwo wbg©v‡Yi Rb¨ Avbv evwji g‡a¨ jvk jywK‡q †i‡L‡Q e‡j Avgv‡K †`Iqv wRwbm My‡jv N‡i Avwbwb| evwn‡i ev_iæ‡gi cv‡k MZ© K‡i c¨v‡KUmn gvj¸‡jv ivwL| MZiv‡Z 8/9 Uvi w`‡K cywjk wM‡q Avgv‡K wRÁvmvev` Ki‡j Avwg MZ©

†_‡K gvj¸‡jv †ei K‡i ‡`B| Avgvi †Q‡j aiv co‡e e‡j Avwg cywj‡k RvbvBwb|Ó

Seizure list, exhibit-09 supports the statements of

accused Jarina, mother of condemned prisoner Rafiqul Islam

Sheikh.

Exhibit-4, and exhibit-9 corroborate the confessional

statement of Rafiqul Islam Sheikh, exhibit-4(A).

Then learned Advocate for the appellants tried to

convince us that F.I.R of this case is lodged after a long

lapse of time. But if we gone through the evidence as well as

the record very carefully, we find that F.I.R of this case was

lodged after recovery the dead body of the victim Limon and

explanation has been furnished in the F.I.R as well. Besides,

this delay of lodging the F.I.R was not questioned during

trial. In the facts and circumstances of the present case duly

in lodge of the FIR does not make the prosecution case fatal.

During trial defence had produced three witnesses. Learned advocates for the appellants pointed that, those three witnesses in their deposition tried to establish that the condemned prisoners after arrest by the police were taken to the police station and tortured enough to confess under pressure in front of the Magistrate. But if we go through statements made under section 164 of the accused couple with the deposition of the concerned Magistrate, we find that there was no sign of torture on the body of the condemned prisoners when that magistrate recorded those statements and they did not make any complain before him to that effect. Thus, the evidence of 03 defense witnesses does not carry any evidentiary value and it could not create any doubt to make decision in this case. The High Court Division and trial court as well rightly addressed the said issue and convicted those condemned prisoners.

Another point has been raised by the learned advocate for the appellants that the manner of killing was not established by the prosecution. Now, if we perused the confessional statements of the accused as well as the statements of the witnesses, it is revealed that death of the victim Limon was caused by tightening neck of the victim by napkin. The post mortem report which is marked as exhibit-5 states that, “transected neck transected trachea cut mark present on 3rd cervical vertebra” and in that report the doctor opined that, “death was caused due to hemorrhage and shock resulting from the above mentioned  injury which was anti mortem and homicidal in nature.”

In this case there are no eye witnesses of the alleged occurrence. However, prosecution produces eye witnesses regarding calling and taking away of the victim by the condemned prisoners. Learned Advocates for the defence tried to establish that according to the postmortem report of the victim Limon, he was killed by sharp cutting weapon that means slaughtering not by tightening neck by napkin that means strangulation. A post mortem report is not an absolute proof of coming to a finding as the cause of death. It can be a corroborative piece of evidence. In the instant case there is no eye witness to the occurrence, for which the prosecution case of this case strictly relies on confessional statements of the four accused persons. In this case the prosecution proves by producing witnesses that the victim was called and taken away by the condemned prisoners. The dead body was recovered after 10 days of the occurrence from the heap of sand within the boundary wall of a under construction building and dead body was partially decomposed. If we consider this facts and circumstances with the seizure list, exhibit-09 and confessional statement of accused Jarina Begum, mother of condemned prisoner Rafiqul  Sheikh, exhibit-4 then we can safely opine that the prosecution has able to prove its case beyond doubt.

Moreover, in view of the section 45 of the Evidence Act expert opinion is one piece of evidence and should be considered with other evidence on record. 

An expert’s opinion may be considered by the Court in forming its own opinion on the issue before it. Section 45 of the Evidence Act does not say that the opinion of an expert is binding upon the Court. The evidence of an expert is considered in order to enable the Court to come to a satisfactory conclusion. An expert giving his opinion must give reasons in support of his opinion and if the Court thinks that the reasons are not cogent or that there is other authentic evidence on the point and that evidence is in conflict with the opinion of the expert then the court is quite competent to prefer that evidence to the expert’s opinion. ( Reference: Prafullah Kamal Bhattacharya Vs. Ministry of Home 28 DLR 123.) 

It is pertinent to discuss here that there are some principles regarding admissibility of confessional statements and other evidences of any cases, For which, satisfaction of the first test is a sine quo non for its admissibility in evidence. If the confession appears to the Court to have been obtained by any inducement, threat or promise such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected  brevi manu. In such a case, the question of proceeding further to apply the second test does not arise. If the first test is satisfied, the Court must before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession or for that matter of any substantive piece of evidence there is no rigid canon of universal application. The Court should carefully examine the confession and compare it with the rest of evidence, in the light of the surrounding circumstances and probabilities of the case. Corroboration in material particulars does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, If after examining and comparing the confession with the rest of the evidence, in the light of surrounding circumstances and probabilities of each case, the confession appears to be a probable catalogue of events and it naturally fits in with the rest of the evidence and the surrounding circumstances, it can be taken to be true and trustworthily. In the instant case there is some inconsistency between confessional statements and postmortem report of the victim regarding the manner of killing. But this inconsistence does not create any doubt for the prosecution to prove its case as because the surrounding circumstances couple with confessional statements made by the condemned prisoners made them guilty in this case, thus, the inconsistency between postmortem report and confessional statements will not make any hindrance to establish this case for the prosecution.

In the light of the above discussions, we can conclude that the prosecution has been able to prove the charge against all the condemned prisoners beyond reasonable doubt and no illegality has been committed by the High Court Division as well as the trial Court in convicting the condemned prisoners. We find no cogent legal grounds to interfere with the judgment and order passed by the High Court Division.

Mr. Mansur Habib and Mr. Ziaur Rahman learned advocates appearing for the appellants lastly drew our attention regarding the age of the appellants and submits that the appellants have been languishing in the condemned cell for several years and considering their age and length of confinement in the condemned cell the sentence of death may be communicated.

In the case of Nazrul Islam (Md) vs. State reported in [66 DLR (AD) 199] this Division has held that:

”Lastly with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death.”

We have considered the above submission of the learned Advocates for the appellants couple with the facts and circumstance of the present case and as well as the facts leading to the commission of the crime by them. The offence committed, undoubtedly, can be said to be brutal. However, it is required to be noted that the condemned prisoners have no past bad record and they are day labours and van puller respectively.

In view of the decisions cited above as well as the circumstances of this case, we are of the view that justice would be sufficiently met if the sentence of death of the appellants be commuted to one of imprisonment for life.

Accordingly, all the appeals are dismissed.

However, the sentence of death of the appellant Md. Mohon Khalifa and Ohidul Howlader are commuted to imprisonment for life and also to pay a fine of Tk.2,000/(two thousand each, in default, to suffer rigorous imprisonment for a period of 02 (two) months more.

The sentence of death of the appellant-Rafiqul Islam Sheikh is also commuted to imprisonment for life and to pay a fine of Tk.25,000/= (twenty five thousand), in default, to suffer rigorous imprisonment for 01 (one) year more.

All the appellants will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code.

The concerned Jail authority is directed to shift the appellants to the normal cell from the condemned cell forthwith.

C.J.

J. J.

Total Ward: 5284