IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

     PRESENT:

Mr. Justice Syed Mahmud Hossain,

                 Chief Justice Mr. Justice Muhammad Imman Ali

Mr. Justice Hasan Foez Siddique

Mr. Justice Md. Nuruzzaman

Mr. Justice Obaidul Hassan

CRIMINAL APPEAL NO.77 OF 2012.

(From the judgment and order dated 08.07.2012 passed by the High Court Division in Death Reference No.21 of 2008 with Criminal Appeal Nos.1294, 1297 and 1309 of 2008 with Jail Appeal Nos.288, 290 and 289 of 2008.)

Md. Mizanur Rahman Mizan                :       Appellant.

=Versus=

The State                                                      :          Respondent.

For the Petitioner    :  Mr. Md. Ashraf Ali, Advocate, instructed by Mr. M.

Ashraf-uz Zaman Khan, Advocate-on-Record.

For the Respondent            :  Mr.  Biswajit  Debnath,  Deputy  Attorney  General

instructed by Ms. Madhu Maloti Chowdhury Barua, Advocate-on-Record.

Date of hearing  : 29.09.2021 & 26.10.2021 Date of judgment     : 26.10.2021

J U D G M E N T

Hasan Foez Siddique, J: This appeal is directed against the judgment and order dated 08.07.2012 passed by the High Court Division in Death Reference  No.21  of  2008  heard  analogously  with  Criminal  Appeal Nos.1294, 1297 and 1309 of 2008 and Jail Appeal Nos.288, 289 and 290 of 2008 accepting the death reference and dismissing the appeals thereby affirming the judgment and order dated 28.02.2008 passed by the learned Sessions Judge, Patuakhali in Sessions Case No.50 of 2007 arising out of Kalapara Police Station Case No.17 dated 31.01.2007, corresponding to G.R. No.17 of 2007 convicting the appellant under sections 302/34 of the Penal Code and sentencing him to death.

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The prosecution case, as it revealed from the evidence of P.W. l Raihan Gofur is that the unfortunate victim Tahmina Sharmin alias Tania was a brilliant student who secured First Division in S.C.C. and H.S.C and obtained First Class in M.A. She was given in marriage with convict Zahid Hossain Jewel. She gave birth to a son named Zaimon who was 10 months old at the time of occurrence. On 27.01.2007, the convict Zahid Hossain Jewel, taking the victim Tania and son Zaimon, went to Kuakata from Dhaka by his private car and stayed in a Porjatan Corporation hotel named “Holiday Homes” from 27.01.2007 to 30.01.2007. At about 7 p.m. on 30.01.2007, they left Kuakata for Dhaka and at about 11/11.30 p.m. reaching near village Rojapara under Kalapara Police Station the appellants and Zahid assaulting the victim with sharp cutting weapons, mercilessly killed her. One Abdul Mannan informed the matter to Kalapara Police Station. The police rushed to P.O. and recovered Tania and shifted her to Kalapara Thana Health Complex where the doctor on duty declared her dead. Kalapara Police informed the matter to the father of the victim Tania. Being informed P.W.1 rushed to the Health Complex, Kalapara and identified the victim. The appellants fled away towards Patuakhali taking Zahid’s car which was recovered from a place called Hetalia. At about 8/8.30 p.m. on 31.01.2007, P.W.l lodged First Information Report with Kalapara Police Station.

On the basis of the said F.I.R. the police started investigation over the matter. In course of investigation, victim’s husband Zahid Hossain Jewel, co-convict Md. Shahin Alam Shahin and appellant Md. Mizanur Rahman Mizan made confessional statements under section 164 of the Code of Criminal Procedure. The Investigating Officer, completing investigation, submitted charge sheet against Jewel, Md. Shahin Alam and appellant Mizanur Rahman under sections 302/34 of the Penal Code.

The case was ultimately tried by the Sessions Judge, Patuakhali who framed charges against the appellant and two others under sections 302/34 of the Penal Code. The accused, on dock, pleaded not guilty and claimed to be tried. The prosecution examined 30 witnesses in support of its case and defence examined none. From the trend of cross examination of the prosecution witnesses it appears that the defence case was that some unknown miscreants attacked the car of Zahid Hossain Jewel in order to commit decoity and they stabbed Jewel and his wife Tania. Consequently, Tania died. The trial Court, examining the accused on dock under section 342 of the Code of Criminal Procedure, hearing the parties and considering the evidence on record, convicted Zahid Hossain Jewel, Md. Shahin Alam and appellant Mizanur Rahman under sections 302/34 of the Penal Code and sentenced each of them to death. The Sessions Judge transmitted the case record to the High Court Division for confirmation of the sentence of death. The appellant and his accomplices preferred above mentioned appeals and jail appeals. The High Court Division, by the impugned judgment and order dated 08.07.2012, accepted the death reference and dismissed the criminal appeals and jail appeals. Against which, the appellant has preferred this appeal.

In order to prove the case, the prosecution examined 30 witnesses. Out of those witnesses P.W.1 Raihan Gofur, the borther of the unfortunate victim Tania, is the informant of the case who in his testimonies narrated

the prosecution case. He said that Tania was a genius girl who secured glorious result in every academic examination and that she was given in marriage with Zahid Hossain Jewel. She gave birth to a child, namely, Zayman Zahid. The marital life of her sister was not so happy. Tahmina Sharmin Tania, Zayman Zahid and convict Jewel went to Kuakata sea beach for a pleasure trip on 27.01.2007 by their private car and stayed in room no.201 of Holiday Homes Parjatan Motel. On the way of returning, at about 11.00/11.30 p.m. when they reached at village Rajapara the appellant and his accomplices with intent to kill Tania, inflicted stab injuries on her person. One Abdul Mannan informed the matter to Kalapara Police Station and the police, getting such information, rushed to the spot and shifted the victim to local hospital where the doctor declared her dead. Kalapara Police informed the matter to the informant party and, accordingly, they rushed to the Kalapara health complex and identified the stab injured dead body of the deceased and, thereafter, lodged F.I.R. He came to know the fact of killing of his sister by the convict Md. Shahin Alam Shahin, victim’s husband Zahid Hossain Jewel and Mizanur Rahman Mizan (appellant) who made confessional statements admitting their guilt. In course of cross- examination the P.W.1 denied that his maternal uncle Habibur Rahman wrote the F.I.R. on 30.10.2007. He added that he was not aware about the fact whether the appellant deposited Tk.10 lacs in FDR account nominating the victim and her son as nominees and he purchased ornaments of Tk.4 lac for Tania after their marriage. He admitted that earlier Zahid and the victim went to Cox's Bazar and Jaflong for pleasure trips. He denied that he brought the facts of marital disputes between Zahid and victim for the purpose of strengthening the prosecution case. He denied the defence suggestion that he influenced the police for bringing false case against the accused persons.

P.W.2 Dr. Nur Hossain Khandaker, Assistant Surgeon in his testimony stated that he held post-mortem examination on the dead body of the victim and found the following injuries on her person:

(1)  One penetrating wound left side below the breast (2" X 1" up to chest cavity)

(2)  Seven incised wound above umbilicus 2" X l", 4" X 1", left side, left side breast 2" X l", Right arms, 2" X l" chest 2" X l", left thigh 3" X 1", Right axilla 3" X l"

On dissection, he found huge ante-mortem blood in the chest cavity and all the injuries were ante-mortem. He opined that death of the victim was caused due to shock and hemorrhage resulting from above injuries which was ante-mortem and homicidal in nature. He denied the defence suggestion that he held post-mortem examination on the basis of inquest report and without observing the provisions of medical jurisprudence rather being influenced by the prosecution.

P.W.3 Habibur Rahman stated that he went to Kalapara along with his nephew (P.W.1) after getting message about the occurrance. He identified the dead body of the victim on 31.01.2007. He saw multiple injuries on the person of the deceased who was possibly killed by her husband. He stated that the husband of the victim had an illicit relation with his cousin Fahima. Husband Zahid used to torture the deceased both physically and mentally. In course of cross-examination, this P.W.3 stated that he put his signature on the F.I.R. on 31.01.2007 and there was no such

overwriting about the date. This witness denied the defence suggestion put to him that Zahid-Tania had been passing their life happily and Zahid deposited huge amount in bank in the name of Tania and they enjoyed various trips in various spots of the country. P.W.4 Nurun Nahar Begum is the mother of the deceased who stated that her daughter was given in marriage with convict Jewel on 25.05.2005. Thereafter, they came to know that Jewel had illicit relation with Fahima. Her daughter protested the same and, thus, the appellant tortured Tania who once went back to her house with a view to divorce her husband. She insisted Tania to return to her husband’s house considering social situation and her fate. In course of cross-examination, she stated that she heard the name of Fahima. She admitted that Tania and Jewel went to Cox’s Bazaar and Sylhet. She denied the defence suggestion put to her that Jewel never tortured his wife and they were happy couple and that there was no existence of Fahima. P.W.5 Alhaj Abdul Gafur is the father of the deceased Tania. He stated that they came to know that Zahid Hossain had a paramour named Fahima. Deceased Tania was treated badly by her husband time and again. He added that the police informed through phone about the death of Tania. He sent his brother-in-law and his son to the place of occurrence. In his cross- examination, he stated that he did not see Fahima. He denied the fact that the couple was happy. He denied the suggestion that accused Zahid deposited huge amount of money in the name of Tania and that he purchased ornaments worth about Tk.4 lacs for Tania. P.W.6 Shajahan@ Shentoo, P.W.7 Tamanna Sharmin Zinya, P.W.8 Sabbir Gafur, P.W.11 Renu Begum, P.W.12 Md. Aziz, P.W.13 Abdul Jabbar, P.W.15 Keshab Chandra Das, P.W.18 Alamgir Mirdha, P.W.20 Nur Mohammad, P.W. 21

Abdul Malek, P.W. 22 Mozibor Chowkidar, P.W. 27 Shanu Mia and P.W.28 Manirul Islam were tendered by the prosecution and the defence declined to cross-examine them. P.W.9 Khuki Begum in her testimony stated that at about 11.00-11.30 on 17th Magh of the last year, her sister, Chacha, Fufu and she went to the highway hearing hue and cry. They found a red coloured private car running away from the spot towards Patuakhali. She rushed to the spot and found a dead body lying on the western side of the road and husband of the deceased told that the miscreants had killed the victim. Police rushed to the spot on receiving information and shifted the victim to Kalapara health complex. She took care of the baby throughout the night. She identified Zahid on dock. She stated that police seized a razor, blood stained knife and earth from the place of occurrence in her presence and she put her signature in the seizure list (Ext.3). P.W.10 Fatima Begum in her testimony stated that she was staying in her home and at about 11.00/11.30 p.m. she heard the sound of screaming from highway and rushed there along with others and found a dead body of a woman lying on the western side of the road and saw that a red coloured private car running from the spot towards Patuakhali. She stated that the husband of the victim disclosed that the miscreants had killed his wife. A motorcycle rider informed the police who rushed to the spot within few minutes and shifted injured person and the victim to the hospital. This witness indentified the accused Zahid Hossain Jewel on dock. She denied that she had deposed falsely being influenced by the prosecution. The P.W.14 Shohag deposed that he was the manager of Hotel Zonaki situated at Patuakhali. Appellant Mizanur, son of Abdul Hashem came to his hotel at about 10 p.m. on 28.01.2007 and expressed his desire

to stay there at night. Mizan said that he wanted to go to Kuakata in the next morning. He filled up the hotel register providing his particulars, stayed there at night and left the hotel in the next morning. P.W. 14 Sohag deposed that the police seized the register wherein entry of the particulars of the appellant Mizanur Rahman was made. He produced the register before the court which was marked as material exhibit IX. In cross- examination P.W.14 stated that police went to his hotel along with appellant Mizan and asked him as to whether this person stayed in his hotel or not and then he admitted the fact of his stay and showed the register. He denied the defence suggestion that he opened the register as per prescription of the Investigating Officer. P.W.16 Mohd. Faroquzzaman, in his testimony, stated that he was the unit manager of Parjotan Hotel “Holiday Homes” situated at Kuakata. On 27.01.2007, convict Zahid Hossain along with his wife and a baby went to his Hotel and took allotment of V.I.P. room no.201 and on 30.01.2007 they left the hotel. He found the couple altercating during the period of their stay in hotel. He identified the convict on dock. In cross-examination, he stated that he could not remember the date and time of altercation of the couple. He denied the suggestion that he disclosed the fact of altercation being tutored by the Investigating Officer. P.W.17 Chand Khan is a seizure list witness of seizing private car of the convict Zahid. He identified the seized car. He also identified his signature on the seizure list which was marked as exhibit-3(Ga)/1.

P.W.19 A.K.M. Mamun-Or-Rashid stated in his examination-in- chief that he was the then Upazilla Magistrate Kalapara. On 03.02.2007, 15.03.2007 and 18.03.2007, three accused persons were produced before

him for recording their respective confessional statements and he recorded those statements after observing all legal formalities. He allocated 3 hours time for their reflection and asked the questions and noted their answers as required by law mentioned in Form (M) 84. He assured the accused that they were not bound to make confession and if they confess, those may be used in evidence against them and that may lead to their death penalty. Those three confessional statements were marked as exhibit-5 series. In cross-examination this P.W.19 stated that in the order sheet of the Magistrate dated 29.04.2007 it was noted that Mizan had retracted his confession. Mizan was given 3 hours time for reflection. He was sent to Patuakhali Jail. He denied the defence suggestion that in spite of complaint of inhuman torture upon the appellant, he did not mention the same in the confessional statements and that the confessional statements were not true and voluntarily made.

P.W.23 Dr. M. A. Matin, medical officer of Kalapara health complex, examined Zahid Hossain on 30.01.2007 in the emergency ward and found the following injuries on his body.

(1)  Superficial incised wound at upper chest (left side) two in number parallel of each other, each about 8 X 1/ cm.

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He stated that he put his signature on the medical certificate (exhibit-

6).

P.W.24 Constable Abdul Jabber carried the dead body of Tahamina Sharmin (Tania) from Kalapara to the morgue of Patuakhali Hospital on 31.01.2007 and identified the same before the concerned doctor for holding post-mortem examination. P.W.25 Abdul Mannan Sharif stated that he was going to Kalapara from Amtoli on 30.01.2007 by motorcycle. At about 11.30 p.m. he reached at village Rajapara. Local people encircled him and conveyed the news of murder of a lady and they requested him to inform the matter to the Kalapara police. He went to the police station along with one Abdul Malek and informed the matter. He saw a private car crossing him while he was going towards the P.O. P.W. 26 Nesar Uddin is a seizure list witness. He identified two cameras and one Samsung mobile phone seized from wife of appellant Mizanur Rahman in the court. P.W.29 Abdul Khaleque was the then O.C. Kalapara who recorded the F.I.R. being presented the same before him at about 20.30 p.m. on 31.01.2007 by informant Raihan Gafur. He filled up the blank columns of the F.I.R. form and entrusted S.I. Farooquzaman as I.O. of the case. In cross-examination he denied that the date of lodging of the G.D. was erased and another date was interpolated.

P.W.30 Farooquzzaman was the Investigating Officer of the case who stated that he was S.I. attached to Kalapara P.S. He started investigation on the basis of a G.D. bearing No.1003, dated 30.01.2007 lodged by one Abdul Mannan Sharif who informed that a woman had been killed at Rojapara village. They rushed to the spot on the basis of such information and shifted the victim to the local health complex for treatment and that he seized incriminating articles and prepared seizure list. He prepared sketch map and its index. He went to Hetalia village being informed over telephone that a private car had been left abandoned there and seized the same along with the wearing apparels and other belongings of the deceased. He prepared a seizure list. He said that he took some photographs from the spot. He deposed that he recorded the statements of the witnesses and arrested the convict Zahid Hossain Jewel and took him on remand. During investigation, he decided to make confession and accordingly, this witness forwarded Zahid before the Magistrate who recorded his confessional statement. He took step to arrest appellant Mizanur Rahman and convict Shahin Alam Shahin. He forwarded those two accused persons before the magistrate who recorded their confessional statements. He added that as per admission of the appellant Mizanur Rahman he seized camera and one cell phone supplied by Nasima, wife of Mizan. He went to Hotel Zonaki on the basis of information given by the appellant Mizan and seized certain documents. He went to Kuakata and collected materials from the Hotel Holiday Homes and also collected evidence from the hotel “Shamudra Bilash”. He submitted charge sheet against three accused persons for committing offence punishable under sections 302/34 of the Penal Code. In cross-examination, he stated that he recorded the statements of witnesses Aziz, Khooki Begum, Tafima, Renu Begum, Abdul Jabber and Nur Mohammad as per provisions of section 161 of the Code of Criminal Procedure and seized some incriminating articles before lodging F.I.R. on the basis of the G.D. He denied the defence suggestion that he tortured the accused persons inhumanly and put them in fear of crossfire in order to secure their confessional statements. He also denied the defence suggestion that he did not perform the investigation properly and the same was perfunctory and that the convict Zahid and his family was attacked and injured by a gang of miscreants whereby Tania succumbed to death and that he performed the investigation being influenced by the maker of the F.I.R. and his father.

These are, in a nutshell, the testimonies of the prosecution witnesses.

It appears that all the convicts namely Zahid Hossain Jewel, Md.

Shahin  Alam  and  appellant  Md.  Mizanur  Rahman  made  confessional

statements before the Magistrate who recorded those under section 164 of

the Code of Criminal Procedure. Contents of the confessional statement of

convict Zahid Hossain Jewel run as follows:

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Similarly convict Md. Shahin Alam  made confessional statement

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2

Mvox bó n‡q‡Q e‡j Avwg Mvox ‡_‡K †b‡g mvg‡bi e‡bU Lywj| Gi g‡a¨ Rvwn` fvB Mvox †_‡K

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hvB| c‡ii w`b †ccv‡i †`‡L Avwg fq †c‡q hvB| wgRvb Avgv‡K wb‡q iscyi †Mvwe›`MÄ Zvi eÜzi evox‡Z wb‡q hvq| Zvi bvgI kvnxb †PŠayix| 2w`b ci wgRvb Avgv‡K †i‡L P‡j Av‡m| AvwgI mÜvq XvKvq P‡j Avwm| Rvwn` fvB‡qi †gvevBj †mUwU kvnxb †PŠayix‡K w`‡q Av‡m wgRvb| Gici †_‡K Avwg XvKvq wewfbœ RvqMvq cvwj‡q _vwK| KzwgjøvI wQjvg| Avgvi kvjvi

k^ïi evox †_‡K Avgv‡K Arrest K‡i| wgRv‡bi Wvb nv‡Zi Av½yj †K‡U hvq Qzwi gvivi mgq GB Avgvi Revbew›`|ÕÕ

Appellant Md. Mizanur Rahman in his confessional statement stated,

``kvnx‡bi mv‡_ Avgvi 14/15 eQi Av‡M cwiPq| Avgiv cvkvcvwk evmvq _vKZvg| wLjMvuI, wSjcv‡o| kvnxb Mvox Pvjvq, Avwg Mvox PvjvZvg| kvnx‡bi gva¨‡g Rvwn‡`i mv‡_ Avgvi 5/6

gvm Av‡M cwiPq| kvnxb Ges Rvwn` KzqvKvUv Avmvi Av‡Mi w`b ivZ AvbygvwbK 8Uvi w`‡K kvnxb Avgv‡K 10,000/-(`k nvRvi) UvKv †`q wLjMvuI gv‡K©‡Ui mvg‡b GKwU Lvev‡ii †`vKv‡b e‡m| kvnxb‡K wR‡Ám Kwi wK‡mi UvKv, ZLb kvnxb e‡jb iv‡Lb GKwU KvR Av‡Q| Avcwb jvM‡j LiP K‡ib| 27/01/2007 ZvwiL kvnxb Avgv‡K †dvb K‡i mKvj 7Uvi w`‡K wLjMvuI wSjcv‡o †bq| ZLb kvnxb e‡j, Rvwn` Zvi ¯¿x‡K wb‡q hgybv eªx‡Ri w`‡K wb‡q Nyi‡Z Pvq Ges 2/3 w`b Nyivi ci Rvwn` Zvi ¯¿x‡K Lyb Kivi wm×všÍ ‡bq| Avwg kvnxb‡K wR‡Ám Kwi ¯¿x‡K gvi‡e †Kb? kvnxb Rvbvq, Rvwn` Zvi ¯¿x‡K Ab¨ †jv‡Ki mv‡_ A‰ea †gjv‡gkv Ki‡Z †`‡L‡Q| GRb¨ †m Zvi ¯¿x‡K Lyb Kivi wm×všÍ †bq| Avwg ejjvg, Nyivi Rb¨ KzqvKvUv ev K·evRvi †M‡j

fvj n‡e| ZLb kvnxb Rvwn‡`i mv‡_ †dvb K‡i KzqvKvUv hvevi wm×všÍ †bq| kvnxb Avgvi wbKU †_‡K 2,000/- (`yB nvRvi) UvKv †bq| Avwg e¨emvi Kv‡R H w`b wm‡jU hvB Ges kvnxb, Rvwn` I Zvi ¯¿x‡K wb‡q KzqvKvUv P‡j Av‡m| kvnxb KzqvKvUv †_‡K H w`b iv‡Z Avgv‡K †dvb K‡i Avm‡Z e‡j| 28/01/2007 Bs ZvwiL Avwg KzqvKvUv iIqvbv nB| cUzqvLvjx G‡m Avwg †nv‡Uj †RvbvKx‡Z iv‡Î _vwK| kvnxb Avgvi mv‡_ †dv‡b †hvMv‡hvM iv‡L| 29/1/2007Bs ZvwiL Avwg mKv‡j KzqvKvUv hvB| mx-ex‡P wM‡q Zvi mv‡_ K_vevZ©v ewj| kvnxb e‡j, Rvwn` Zvi ¯¿x‡K hvevi c‡_ Lyb Ki‡e| wKfv‡e Ki‡j fvj nq| Avwg Rvwn‡`im ‡_ †`Lv Ki‡Z PvB wKš‘ kvnxb e‡j Zvi mv‡_ K_v ejvi `iKvi ‡bB| me K_v Avgvi mv‡_ n‡q‡Q| Avwg kvnx‡bi mv‡_ †nv‡U‡j DwV| c‡ii w`b mKv‡j kvnxb Avgv‡K e‡j Avgiv GLvb †_‡K mÜ iIqvbv ne| Avcwb Av‡M P‡j

hvb| Avgv‡K e‡j Kjvcvov G‡m _vK‡Z kvnxb †dvb w`‡j mvg‡ †h Z e‡j| Avwg 5Uvq iIqvbv n‡q P‡j Avwm †nvÛv †hv‡M| kvnxb †dix‡Z D‡V Avgv‡K †dvb w`‡q mvg‡b †h‡Z e‡j| Avwg cÖ_‡g wiKkv K‡i mvg‡b AvMvB| Gici †nu‡U mvg‡b †h‡Z v _wK, ZLb ivZ 9t30Uv n‡e| Kjvcvov †_‡K 2/3 wKt wgt `~‡i kvnxb Avgv‡K †`‡L Mvox _vgvq kvnxb Mvoxi mvg‡bi ebvU DVvq| nVvr K‡i Rvwn‡`i ¯¿x Mvox †_‡K wPrKvi †`q, evuPvI e‡j Mvox †_‡K †ei n‡q gvwU‡Z c‡o hvq| ZLb kvnxb Avgv‡K GKUv PvKz nv‡Z w`‡q AvNvZ Ki‡Z e‡j Rvwn‡`i ¯¿x‡K Rvwn`I Avgv‡K cv‡k `vuwo‡q ZvovZvwo gvi‡Z e‡j G mgq kvnxb Rvwn‡`i ¯¿xi gyL †P‡c a‡i| Avwg PvKz w`‡q Rvwn‡`i ¯¿xi ey‡Ki Dci K‡qKUv Dchy©cwi AvNvZ Kwi  |Rvwn` kvnxb‡K e‡j gviv wM‡q‡Q wKbv †`L‡Z| kvnxb wM‡q †`‡L gviv ‡M‡Q| Rvwn` Zv‡KI wKQz AvNvZ Ki‡Z e‡j kvnxb Avgv‡K GKUv Lyi †`q| †m Lyi w`‡q Avwg Rvwn‡`i kix‡j 3/4 Uv †cvuP ‡`B| NUbvi mgq PvKz‡Z Avgvi Wvb nv‡Z 2Uv Av½yuj †K‡U hvq| Rvwn` Avgvi nv‡Z †gvevBj I gvwbe¨vMUv w`‡q P‡j †h‡Z e‡j| Avgiv Mvox wb‡q P‡j ‡h‡Z _vwK| wKQz`~i wM‡q Mvox †d‡j Avgiv nvuU‡Z _vwK| Mvox †_‡K K¨v‡giv 2Uv kvnxb wb‡q †bq| mKvj n‡j GKUv evm †hv‡M Avgiv ewikvj P‡j hvB| ewikvj GK Wv³v‡ii wbKU †_‡K nvZ e¨v‡ÛR K‡i XvKvq P‡j hvB| XvKvq wM‡q cwÎKvq Kv‡kg WªvBfvi bvg Av‡m| ZLb kvnxb‡K wR‡Ám Ki‡j †m e‡j Rvwn‡`i mv‡_ cwiKíbv K‡i Kv‡kg bv‡g GKwU Bio-data Mvox‡Z †i‡L w`B| G Ly‡bi Rb¨ Avwg †gvU 11,000/-(Gv M‡iv nvRvi) UvKv †c‡qwQ| Rvwn‡`i ¯¿xi jvk XvKvq wb‡j Avwg AbyZß n‡q Zvi jvk GK bRi †`L‡Z hvB|ÕÕ

Mr.  Md.  Ashraf  Ali  (with  Ashraf  Uzzaman  Khan,  Advocate-on-

Record) learned Counsel appearing for the appellant, submits that there is

no eyewitness of the occurrence and the appellant has been convicted on

the basis of his confessional statement and the confessional statements of

other co-accused which were not voluntarily made and the contents of the

same were not true and those were not recorded following the provisions of

sections 164 and 364 of the Code of Criminal Procedure. He submits that

the prosecution has failed to prove its case beyond all shadow of doubt by examining any eye witness of the occurrence.

Mr. Biswajit Debnath, learned Deputy Attorney General appearing for the State, submits that the confessional statement of the appellant was made voluntarily and the same was true. Magistrate recorded the statement following the provisions of sections 164 and 364 of the Code of Criminal Procedure. He submits that the appellant took part in the conspiracy of killing the victim and executed it in a planned and preconcerted manner. The sentence awarded by the Courts below is proportionate to the offence committed by the appellant and therefore no interference is called for.

We have heard the learned Advocate for the appellant and learned Deputy Attorney General for the respondent, perused the impugned judgment and other materials on record.

From exhibit-2, the report of post-mortem examination, it appears that the victim received the following injuries on her person:

(1)  One penetrating wound left side below the breast (2" X 1" up to chest cavity)

(2)  Seven incised wound above umbilicus 2" X l", 4" X 1", left side, left side breast 2" X l", Right arms, 2" X l" chest 2" X l", left thigh 3" X 1", Right axilla 3" X l"

The doctor opined that the death was caused due to shock and hemorrhage resulting from those injuries which was anti-mortem and homicidal in nature. Dr. Noor Hossain, who held autopsy of the dead body of the victim was examined as P.W.2, proved the post-mortem report (Exhibit-2). From the said report and evidence of P.W.2 it is proved that the victim was mercilessly killed by inflicting as many as 8 stabbed injuries on her person. We do not find any elements in the post mortem report that contradicts confessional statements of the appellant or the other convicts, namely, Zahid and Shahin. Confessional statements of the three convicts including the appellant which were recorded on three different dates testify veracity of one another. The confessional statements recording Magistrate P.W.19 in his evidence stated that the confessional statements were voluntarily made and he recorded those statements complying all legal formalities.

It is settled principle that before recording confession caution must be administered to the person who is going to confess. It is the duty of the Magistrate to ascertain whether the same is to be made voluntarily and uninfluenced from any external factor. It is also required to explain to the accused that he was not bound to make a confession and if he does so, it might be used against him. The Magistrate must satisfy himself that no pressure or force was used on the accused who makes the confession. From the confessional statement of the appellant and evidence adduced by the recording Magistrate P.W.19 we are of the view that the confession of the appellant was voluntarily made and the same was not a result of any duress or coercion by Police and the same was recorded after due warning and giving sufficient time for reflection. The Magistrate recorded a memorandum from which it transpired that the confession was made voluntarily. We do not find any material on record relying upon which it can be said that those were not voluntarily made and from facts, circumstances and other evidence on record it appears to us that the contents of the same were true. The prosecution case regarding time, place and manner of occurrence has been proved by the evidence adduced by the witnesses, and therefore, it is difficult to accept the submission of Mr. Ashraf Ali that the confessional statement made by the appellant Mizanur Rahman Mizan was not made voluntarily and contents of the same were not true. On careful consideration of confessional statements and comparing them with the rest of the evidence in the light of the surrounding circumstances and probabilities of the case, we are of the view, that findings of the courts below as to true nature and voluntary character of the confession is correct.

From the confessional statement of the appellant, other evidence both oral and circumstantial revealed from the evidence of prosecution witnesses, we have no hesitation to hold that the prosecution has been able to prove the charge against the appellant beyond all shadow of doubt.

Mr. M. Ashraf Ali, learned Advocate lastly submits that the sentence of death of the appellant is too harsh and the same may be commuted from death to imprisonment for life considering the facts and circumstances of the case.

It appears from the confessional statement of the appellant that he himself initially received a sum of Tk.10,000/- for killing the victim and he advised the convict Zahid Hossain Jewel for going to Kuakata which would be easier for killing the victim. Accordingly taking the victim, Zahid Hossain Jewel went to Kuakata and this appellant in order to implement their conspiracy of killing the victim went to Kuakata and stayed in the Hotel Jonaki on 28.01.2007. Thereafter, he met with his contact Md. Shahin Alam Shahin, driver of the convict Zahid in the sea beach and finalized the plan to implement the decision of killing the victim. On the next day, at about 5 p.m. he left Kuakata and at about 9.30 p.m. co-convict Shahin stopped the car of convict Jewel and the victim Tania upon his signal. Stopping their car co-convict Shahin opened the bonnet of the car to

facilitate attack. At that time, the victim raised alarm saying, “euvPvI euvP” v I then Shahin handedover a knife to the appellant for killing the victim. Shahin also pressed the mouth of the victim and this appellant inflicted knife blows indiscriminately on the chest of the victim. Then Zahid asked Shahin to see whether victim had died or not. Convict Shahin found that the victim had died. Then Zahid ordered them to assault him. Accordingly, this appellant inflicted knife blows on the person of Zahid. At that time, two fingers of the appellant got injured. Zahid handed over his mobile phone and wallet to this appellant and directed him to leave that place. Thereafter, this appellant and co-convict Shahin left the place by the car and sometimes thereafter, keeping the car abandoned they left the place and went to Barishal. At the time of leaving the car they kept bio-data of one Kashem in the car. Appellant got Tk.11,000/- for killing the victim. From the confessional statement, it appears that the appellant is a hired killer. He does not deserve any leniency.

In such view of the matter, we do not find any illegality in the judgment and order of the High Court Division. Accordingly, the appeal is dismissed. The order of conviction and sentence awarded by the trial Court and confirmed by the High Court Division is hereby maintained.

   C.J.        J.        J.        J.        J.

The 26th October, 2021.

M.N.S./words-6120/