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.92, 56 AND 57 ALL OF 2014  

(From the judgment and order dated the 19th day of August, 2010 passed by the High Court Division in Death Reference No.115 of 2005 with Criminal Appeal Nos.3655, 3481, 3945 and 8389 all of 2005 and Jail Appeal Nos.893, 894, 895 and 896 all of 2005)

Md. Abdul Gafur alias Milon and Farook alias Fortool and others Md. Matiar Rahman @ Motu

:                                                                       .       .      .   Appellant (In Crl. A. No.92 of ‘14)

:                                                                       .       .      .   Appellants (In Crl. A. No.56 of ‘14)

:                                                                       .       .      .   Appellant (In Crl. A. No.57 of ‘14)

-Versus-

The State  :  .           .           .   Respondents (In Crl. A. Nos.92, 56 and 57 of ‘14)

For the Appellant

(In Crl. A.No.92 of ’14)

For the Appellants

(In Crl. A.No.56 of ’14)

For the Appellant

(In Crl. A.No.57 of ’14)

For the Respondent

(In Crl. A. No.92 of ‘14)

:            Mr.  S.M.  Shahjahan,  Advocate instructed by Ms. Shahanara Begum, Advocate-on-Record

:            Mr. Md. Helaluddin Mollah, Advocate instructed by Ms. Shahanara Begum, Advocate-on-Record

:            Mr. Nurul Islam Bhuiyan, Advocate- on-Record

:            Mr.  Biswajit  Debnath,  Deputy Attorney General with Ms. Abantee Nurul,  Assistant  Attorney  General instructed  by  Ms.  Madhu  Malati Chowdhury  Barua,  Advocate-on- Record

For the Respondent  :  Mr.  Biswajit  Debnath,  Deputy (In Crl. A. Nos.56-57 of ‘14)  Attorney  General  with  Ms.  Abantee

Nurul,  Assistant  Attorney  General instructed  by  Mr.  Haridas  Paul, Advocate-on-Record

Date of Hearing  :  08.02.2022 and 15.02.2022

Date of Judgment : The 16th 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 19.08.2010 passed by the High Court Division in Death Reference No.115 of 2005 with Criminal Appeal Nos.3655 of 2005, Criminal Appeal No.3481 of 2005, Criminal Appeal No.3945 of 2005, Criminal Appeal No.8389 of 2005 and Jail Appeal Nos.893 of 2005, Jail Appeal No.894 of 2005, Jail Appeal No.895 of 2005 and Jail Appeal Nos.896 of 2005 accepting the reference and dismissing the appeals. 

Facts relevant for disposal of the appeals are as follows:

The present appellants along with 10(ten) others were put on trial before the Additional Sessions Judge, 2nd Court, Rajshahi in Sessions Case No.128 of 2003  arising  out of  Bagmara  Police  Station  Case  No.10 dated 16.01.2000 corresponding to G.R. No.23 of 2000 to answer charge under sections 302/ 34/ 109 of the Penal Code to which the appellants pleaded not guilty and claimed to be tried.

The prosecution case, in short, is that, P.W-1, brother of deceased Golam Rabbani lodged a first information report  (hereinafter referred to as an F.I.R) with Bagmara Police Station on 16.01.2000 at about 22.15 alleging, inter alia, that his brother Golam Rabbani was the Chairman of Suva Danga Union Parishad; on 16.01.2000 at about 19.00 P.M. he was in Mochmoil Hat; at that time 3/4 persons came to him and identified them as D.B. personnel; Golam Rabbani took them to Hamid tea stall and offered them egg and tea. After taking tea Golam Rabbani started for home with those persons and when they reached behind the primary school of Mochmoil, then one of the accused with an axe hit on the head of Golam Rabbani and as a result he fell down on the ground and then other accused persons killed him by slaughtering. At the relevant time one Md. Razzaque witnessed them and he asked them about their presence but they threatened him to kill. Abdur Razzaque in afraid of his life fled away to Mochmoil Bazar and told the incident; people from Mochmoil Bazar rushed to the place of occurrence and saw the butchered body of victim Golam Rabbani and immediately they announced the same through Micro Phone from the Mochmoil Markaz Mosque; when the assailants were fleeing towards Suvadanga village, the villagers saw the assailants and surrounded them and then the assailants with their revolver shot blank fire; inspite of that the villagers of Suvadanga went to catch the assailants when co-villager Md. Ayub Ali stabbed to death by one of the accused; when the assailants reached Bariopara village they were surrounded by the villagers and eventually Member Md. Shamsuddin Sardar alias Labu (P.W-7) firstly caught Md. Farooq Hossain alias Fartool and took away a revolver, made in Japan, from his hand. He handed over said Fartool to the people and caught another assailant Md. Gafur, eventually said Farooq alias Fartool and Abdul Gafur alias Milon were taken to Mochmoil Girls High School where they were detained. The Assistant Headmaster of said school. Md. Abdul Mazid informed the matter to the officer-in-charge of Bagmara Police Station who along with his force by a pickup reached the place of occurrence and recovered the said 2(two) accused persons from the said school. Local people handed over 1 (one) revolver and bullets to the police.

After completing investigation the Criminal Investigating Department (CID) submitted charge sheet on 09.10.2001 against 14 persons under sections 302/ 34/ 109 of the Penal Code including the present appellants.

To bring home culpability against the appellants and other accused, the prosecution has examined as many as 24 witnesses in the case. Defence cross- examined the said witnesses but did not adduce any witness.

On conclusion of the trial the learned Additional Sessions Judge, 2nd Court, Rajshahi by its judgment and order dated 25.07.2005 found guilty to present appellants Farook alias Fartool, Md. Abdul Gafur alias Milon, Bikash Kumar Sarker, Setabuddin, Saman alias Samad and Md. Matiar Rahman alias Montu under sections 302/ 109/ 34 of the Penal Code and accordingly, they were sentenced to death by hanging.

Other accused Md. Mohsin Ali, Md. Shahidul Islam, Md. Boyen Uddin alias Kuru, Golam Mostafa and Md. Mohobbot Ali were also found guilty under sections 302/ 109/ 34 of the Penal Code and they were sentenced to imprisonment for life with a fine of Tk.20,000/- in default to suffer imprisonment for 01(one) year.

The condemned prisoner Bikas Kumar Sarkar and Motiar Rahman alias Montu were absconding during trial.

The learned Additional Sessions Judge as per provision of section 374 of the Code of Criminal Procedure made reference to the High Court Division for confirmation of the death sentence and accordingly same was registered as Death Reference No. 115 of 2005.

Condemned prisoner Farook alias Fortool preferred Criminal Appeal No.8389 of 2008 and Jail Appeal No.896 of 2005, condemned prisoner Setabuddin preferred Jail Appeal No.893 of 2005, condemned prisoner Saman alias Samad preferred Jail Appeal No.894 of 2005 and condemned prisoner Md. Abdul Gafur alias Milon preferred Jail Appeal No.895 of 2005 in the High Court Division.

A Division Bench of the High Court Division after hearing the above Death Reference and appeals together accepted the Death Reference and dismissed the appeals filed by the respective condemned prisoners.

However, the High Court Division allowed Criminal Appeal No.3655 of 2005 preferred by convict Md. Mohsin Ali, Shahidul Islam and Boyen Uddin alias Kuru, Criminal Appeal No.3481 of 2005 preferred by convict Md. Mohobbat Ali and Criminal Appeal No.3945 of 2005 preferred by Golam Mostafa and acquitted them from the charges brought against them.

Being aggrieved by the aforesaid judgment and order condemned prisoner Md. Abdul Gafur alias Milon has preferred Criminal Appeal No. 92 of 2014, Farook alias Fortool, Setabuddin and Saman alias Samad has preferred Criminal Appeal No.56 of 2014 and condemned prisoner Md. Matiar Rahman alias Motu has preferred Criminal Appeal No.57 of 2014.

During pendency of appeal condemned prisoner Md. Matiar Rahman @ Montu has died and hence Criminal Appeal No.57 of 2014 has stand abetted.

Mr. Md. Helal Uddin Mollah learned Advocate appearing for the condemned prisoner Farook alias Fortool and Md. Abdul Gafur alias Milon submits that the trial Court as well as the High Court Division has committed serious error in convicting the said condemned prisoners relying on the confessional statement allegedly made by them which are not true and voluntary. Under compelling circumstances they were made the said statements before the Magistrate concerned. The alleged eye witness P.Ws-3,4,5, 6 and 9 are the interested persons and inimical to the condemned prisoners and thus, their evidence should be left out of consideration in finding the guilt of the said condemned prisoners. 

Mr. S.M. Shahjahan, learned Senior Advocate, appearing for condemned prisoners Setabuddin and Saman alias Samad 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 of two other co-accused though it is well settled that confession of a co-accused is not a substantive piece of evidence against the other co-accused and such evidence along without substantive corroborative evidence cannot form the basis of conviction of a co-accused. In the instant case the prosecution has miserably failed to bring any substantive corroborative evidence to the confession of the co-accused Farook alias Fortool and Gafur which can be used to lend assurance to other evidence. 

Mr. Shajahan further submits that condemned prisoner Setabuddin and Saman alias Samad were not apprehend by the local people as like the other condemned prisoners and it is not possible for the witnesses to identify and recognize the accused person in a dark night of a winter season and as such the prosecution has failed to prove the means of recognition by the alleged eye witness. He further submits that the alleged eye witnesses were examined by the investigating officer after long laps of the alleged occurrence which created serious doubt about their credibility and their evidence bears no value. The High Court Division in arriving at the guilt of the above condemned prisoners has failed to appreciate this legal proposition and as such committed error of law in maintaining conviction of condemned prisoners Setabuddin and Saman alias Samad.

Mr. Biswajit Debnath, learned Deputy Attorney General, appearing for the State as a respondent 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. Debnath referring to the confessional statement under section 164 of the Code of Criminal Procedure made by condemned prisoners Farook alias Fortool and Md. Gafur alias Milon couple with the evidence of P.Ws-19 and 20, 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.Ws-19 and 20 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 also the statements under section 164 of the Code of Criminal Procedure made by the condemned prisoners Farook alias Fortool and Md. Gafur alias Milon.

In the instant case it is the prosecution case that the assailants murdered victim Golam Rabbani by slaughtering.

The manner of killing of Golam Rabbani by slaughtering as stated by the prosecution has been proved by the eye witnesses namely Pws.3,4,5 and 9 as well as inquest report exhibit-12 and postmortem report exhibit-13. P.W-17 Dr. Joha Mohammad Maher War Hossain who held the autopsy proved the said postmortem report and this signature thereon, exhibit-13/1.

The following injuries were mentioned in the Post Mortem report: of Golam Rabbani

1. One incised injury transverse and horizontally placed in the anterior 1

surface of the neck, at the level of middle of the thyroid cartilage, size 8"x 1

2

"x vertebral column.

2. One incised injury in the upper part of the middle of the right parietal

region of the scalp, size 31 " x 3 " x bone: on detailed dissection.

2                      4

4. Trachea, esophagus both the carotid arterico and both the jugular

veins were found cut completely corresponding to the injury No.1.,

4. Fracture of both the parietal and both the temporal bones present.

Intracranial hemorrhage present.

Death in his opinion was due to shock and hemorrhage as a result of the

above mentioned injuries, which were ante- mortem in nature Death was

homicidal in nature.”  

As such, the prosecution has been able to prove the manner of killing of

victim Golam Rabbani by slaughtering.

In the instant case condemned prisoners Md. Abdul Gafur alias Milon

and Farook alias Fortool made confessional statements made under section 164

of the Code of Criminal Procedure before the Magistrate concerned. 

Condemned prisoner Md. Abdul Gafur alias Milon in his statement made

under section 164 of the Code of Criminal Procedure, exhibit-15, stated to the

effect:

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†cvóvi †`wL Zv‡Z †jLv Av‡Q †`k GLbI ¯^vaxb nq bvB| Mixe †jvK

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gyiv` (‡Qov) wPiKzUwU gyiv`‡K w`‡Z e‡j Ges Zvi mv‡_ Avgv‡K KvR Ki‡Z

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(dviZzj) mvgvb, Avwg Avt Mdzi I †mZve Ges AÁvZ 1 Rb (AvÎvB bIMuv

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gyiv`‡K (dviZzj) a‡i †d‡j| NUbv¯’‡j Abyt 200 Rb †jvK wQj| Aci

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¯^v/- †gvt Ave`yj Mdzi (wgjb)Ó

The confessional statement made under section 164 of the Code of

Criminal Procedure as made by condemned prisoner Farooq alias Fortool is as

follows:

ÒAvgvi bvg dviæK Avn‡g` Ii‡d dviZzj wcZv-‡gvt †gvRvddi †nv‡mb mvs-

‡Kvbv evwoqv _vbv evMgviv R‡jv ivRkvnx| Avgvi eqm-22 eQi| Avwg c~e©

evsjv KwgDwbó cvwU©i GKRb m`m¨ MZ 1996 m‡b weivgcyi (w`bvRcyi)

n‡Z Gm.Gm.wm cvk Kwi| NUbvi cÖvq 01(GK) gvm c~‡e© Avgvi `‡ji †bZv g›Uz wm×všÍ †`q †h, †Pqvig¨vb †Mvjvg iveŸvbx‡K †kÖbx kÎæ wnmv‡e †kl Ki‡Z (AcvV¨) n‡e| ‡mB wm×všÍ †gvZv‡eK g›Uz Avgv‡K weivgcyi n‡Z †W‡K Av‡b|

MZ C‡`i Av‡M iweev‡ii w`b Avwg I g›Uz gPgBj evRv‡ii weKvk eveyi Kv‡Q Avwm Ges myRb (AcvV¨) MÖv‡gi †mZve DwÏb, Qvgvb mn 16-1-2000 ZvwiL

†Mvjvg iveŸvbx‡K nZ¨vi ZvwiL wba©vib Kwi| †mB †gvZv‡eK 16-1-2000

Zvwi‡L Avwg, †mZve I Qvgvb mܨvi w`‡K gPgBj evRv‡i Avwm| NUbvi w`b

Abygvb mܨv 6.00 Uvi w`‡K wgjb Ii‡d Avt Mdzi g›Uzi KvQ †_‡K GKwU wPiKzU Avgv‡K †`q hvnv‡Z wb‡`©k †`qv wQj| weKvk eveyi N‡i Wb bvCg I bvwn` AvM †_‡K e‡mwQj| ZLb Avgiv weKvk eveyi wb‡`©‡k mܨv 7/8 Uvi w`‡K Miæi nv‡U A‡cÿv Ki‡Z wQjvg| GK mgq †Mvjvg iveŸvbx cv‡q †n‡U

evoxi w`‡K †h‡Z wQj| ZLb Avgiv Zv‡K Abymib Kwi Ges gmwR‡`i wbKU †cŠQvB‡j Avgv‡`i mv‡_ _vKv weKvk eveyi †`Lv‡bv g‡Z Qvgvb Zvi nv‡Zi †jvnvi iW w`‡q †Pqvig¨v‡bi gv_vq AvNvZ Ki‡j †m gvwU‡Z c‡o hvq| ZLb wgjbI †mZve †Pqvig¨vb‡K Vvwm‡q a‡i Ges Avwg Avgvi nv‡Zi †Qviv Øviv †Pqvig¨vb‡K RevB Kwi| Gici Avgiv DËi w`‡Ki KuvPv iv¯Ív w`‡q cvjv‡bv †Póv Ki‡j RbMb KZ©„K eviæB cvov Avmvgx Mdzi Ii‡d wgjb aiv cwo| aiv covi Av‡M RbM‡bi mv‡_ †Qov a¯Ívaw¯Íi GK ch©v‡q Mdzi Ii‡d wgjb evuPvi Rb¨ GKR‡bi ‡c‡U Qzwi gv‡i D³ e¨w³ c‡i gviv †M‡Q e‡j ï‡bwQ| Zvici

cywjk G‡m Avgv‡`i `yRb‡K D×vi K‡i| GB Avgvi Revbe›`x|

¯^v/- †gvt dviæK Avn‡g` Ii‡d dvivZzjÓ

P.W-19 Md. Towfiqul Islam and P.W-20 Sheikh Mujibor Rahman, the

then 1st class Magistrate working at Rajshahi recorded the statement under

section 164 of the Code of Criminal Procedure of condemned prisoners Md.

Abdul Gafur alias Milon and Fartool respectively. They proved the said

confessional statements, exhibits-15 and 17 and their signatures thereon

exhibits-15/1-15/8 and exhibits-17/1-17/4 respectively. The said two witnesses

in their respective deposition stated that they recorded the said statements

complying with the mandatory provision of law and having been satisfied as to

its truth and voluntaries they signed on the memorandums.   

At the time of examination of the said 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 required to the

said statements. We have also examined exhibits-16 and 17 and we are of the

opinion that in recording the said statements the P.W-19 and P.W-20 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 on confession

of the make of it, framed true and voluntary, though retreat subsequently.   

In the instant case condemned prisoners Farook alias Fortool and Md.

Gafur alias Milon were caught read handed by the local people immediate after

the occurrence and thereafter, they were taken to Mochmoil School and then

handed over to the police when they came and further, when the villagers were

trying to  apprehend  the  assailants  one of  the  villagers,  namely  Ayub was

stabbed to death by one of the accused.

P.W-3 Khoshbor Ali Pramanik categorically deposed to the effect:

""-------------Hhw Bjl¡ h¡S¡ ll ¢c L k¡C a b¡¢L jp¢S cl ¢eLV f±yR¡

j¡œ l¡Ù¹¡l f¢ÕQj f¡ s 10/12 Se ®m¡Lz HLSe ®m¡L L j¡¢V a g¢mu¡

Q¡¢fu¡ d¢l a ®c¢Mz Bjl¡ a¡q¡¢cN L ¢L qCa R ¢S‘¡p¡ L¢lz ®pM¡ e

®c¢M a f¡C jq¢pe, n¢qc¤m, jqhha, jÙ¹g¡, ®pa¡h, p¡j¡e, e¡ uh,

 pL¡¾c¡l, ¢hL¡n, V¥L¥, h­ue E¢Ÿe L¥l²¤, g¡la¥m, Ng¥l, j¢aEl lqj¡e j¾V¥

Nw­Lz a¡q¡l¡ pL­mC Eš² ®m¡L­L Q¡¢fu¡ d¢lu¡¢Rmz g¡la¥m ®m¡L¢V­L Sh¡C L¢l­a­R Hhw AeÉ¡eÉ hÉ¢š² Ne ®m¡L¢V L Q¡¢fu¡ d¢lu¡ l¡¢Mu¡ R

®c¢M a f¡Cz Bp¡j£NZ Bj¡ L f¡m¡ e¡l SeÉ ýj¢L ®cuz Bjl¡ h¡S¡ l

¢N u Q¡ ØV m h¢m ®k, HL¢V ®m¡L L Sh¡C Ll¡ qC a Rz Bjl¡ f¤el¡u h¡S¡l qC­a ®k±b i¡­h ¢Nu¡ ®c¢M Sh¡CL«a hÉ¢š²¢V qC­a­R ®Qu¡ljÉ¡e lhh¡e£z jQjCm h¡¢mL¡ we`¨vj‡qi pqL¡l£ ¢nrL Bë¤m j¢Sc j¡C L fËQ¡l

L­l ®Qu¡ljÉ¡e ®N¡m¡j lî¡e£­L Bp¡j£Ne M¤e L¢lu¡ Ešl ¢c­L f¡m¡Cu¡

¢Nu¡ R Hhw Bp¡j£Ne L dl¡l SeÉ h mez f l S¡¢e a f¡¢l h¡l¦C f¡s¡u

02 Se Bp¡j£ dl¡ f¢su¡ R Hhw öi X¡wN¡u BCu¤h Bm£ L M¤e Ll¡

qCu¡ Rz dªa Bp¡j£ cl e¡j g¡la¥e Hhw Ng¥lz b¡e¡ qC a f¤¢mn B¢pu¡ dªa Bp¡j£àu L BVL L¢lu¡ ¢eu¡ k¡uz''

This witness identified the condemned prisoners on the dock.

P.W-4 Md. Sanowar Hossain also in his deposition stated to the effect:

""jp¢S cl f¢ÕQj f¡ nÄÑ ®c¢M ®k 10/12 Se ®m¡L T¡fV¡ T¡f¢V L¢l a ®c¢Mz Bj¡l¡ 04 Se I pLm ®m¡L L h¢m ®k, Bfe¡l¡ ®m¡L¢V L j¡¢lu¡

®g¢m a Re ¢L? aMe 5/7 Se ®m¡L Bj¡ L ¢fÙ¹m d lz B¢j h¡S¡ l ¢Nu¡

pLm L S¡e¡C ®k, lî¡e£ ®Qu¡ljÉ¡e L ®m¡LSe j¡¢lu¡ ®g¢m a Rz lî¡e£

®Qu¡ljÉ¡e L k¡q¡l¡ j¡¢l a¢Rm a¡q¡¢cN L B¢j ¢Q¢e a f¡¢lu¡¢Rz a¡q¡l¡

qC a Re jq¢pe, n¢qc¤m, h­ue E¢Ÿe Jl­g L¥l¤, ®j¡Ù¹g¡, jqhha, ¢hL¡n,

R¡j¡ez---------z

The informant, P.W-1 Md. Golam Rahman also asserted that condemned

prisoner Fortool and Md. Gafur were apprehended by the local people

immediate after the occurrence and they were handed over to the police.

P.W-5 Md. Sohrab Hossain and P.W-9 Akkas Ali in their respective

deposition also echoed the above assertions of P.Ws-3 and P.W-4 and they

could identify the accused persons. P.W-9 Akkas Ali further deposed that: 

""®pM¡ e 02 Se m¡L L SeNe j¡ldl L¢l a ®c¢Mz ®k 02 Se ®m¡L j¡l

M¡C a¢Rm a¡q¡ cl e¡j g¡la¥e J Ng¥l e¡ j fËL¡n L l z Bjl¡ j¡ Wl

¢c L Q¢mu¡ ®Nm¡jz j¡ W k¡C a ®c¢M Bp¡j£ ®pa¡h Hhw p¡j¡e L l¡Ù¹¡l

f¡ nÄÑ c¡ys¡Cu¡ b¡¢L a ®c¢Mz ®pa¡h Bj¡ L h m ®k, i¡C Bj¡ L h¡yQ¡ez ®pa¡­hl N¡y­u lš² ®c¢Mz ®pa¡h­L aMe BLhl j¡ø¡l Hl O ll j dÉ l¡M¡l

SeÉ k¡Cz ®pa¡­hl N¡­u lš² ®c¢Mu¡ O­l S¡uN¡ ¢c a ApÅ£L¡l L lz ¢L¿º

Bjl¡ BLhl j¡ø¡l Hl O l ®pa¡h L Y¥L¡Cu¡ ¢cu¡ Ol hå L¢lu¡ ¢cCz

Aaxfl j¡ W B¢p Hhw Bp¡j£ g¡la¥e I Ng¥l L ú¤m O l h¡¢du¡ l¡¢Mz f l

f¤¢mn B pz f¤¢mn Bp¡l fl S¡¢e a f¡¢l HC Bp¡j£Ne lî¡e£ L M¤e

L¢lu¡ Rz --------------z aMe B¢j f¤¢mn L Se¡C ®k, BlJ 02 Se

Bp¡j£ B Rz f¤¢mn ¢Nu¡ ®c M ®k, Bp¡j£ ®pa¡h Hhw p¡j¡e S¡e¡m¡ iw¢Nu¡ f¡m¡Cu¡ ¢Nu¡ Rz ''

The defence has failed to shake the evidence of the said PWs in any

manner. 

P.W-7 Md. Shamsuddin Sardar disposed that he caught hold condemned prisoner Fartool and Gafur and further when he tried to caught Gafur, Gafur assaulted on him by knife and he received injury.

PW.14 Md. Taher Ali deposed that when they tried to apprehend the accused  persons,  at one  stage  his  brother  (PW-7)  caught hold  condemned prisoner Fartool and then condemned prisoner Gafur stubbed on right side of his chest and he heard the names of said two persons in the place of occur.

Mr. Shahjahan, learned Senior Advocate, appearing for the condemned prisoners Setabuddin and Saman has tried to convince us that the said witnesses were examined by the investigating officer after a long lap of time and as such their evidence should be left out of consideration and ought not to be relied on in finding the guilt of the condemned prisoners.

P.W-24 Showpon Kumar Bokshi, investigation officer, who submitted the charge sheet, deposed that after the death of first investigating officer, the case record was sent to Criminal Investigation Department (CID) by the police and therefore, he was entrusted with investigation of the case.

For the above reason, some delay had occurred to examine the witnesses. Further, the defence has failed to show that the said witnesses are inimical to the condemned prisoners and they are the interested witnesses. In the case of Rashed Kabir and 5 another vs. State, reported in 22 BLC (AD), Page-345 this Division has held that;

“Under such circumstances the delay in the examination of three vital witnesses by the investigation officer cannot be taken as inordinate delay and the same cannot be a legal ground for disbelieving them as not reliable witnesses. The High Court Division in the context of the matter found that this delay was natural and for this delay the witnesses should not be disbelieved. It is not a rule of law to be followed that the statement of a witness disclosing a fact should be established by the proximity of time between taking place of the fact and making of the statement. It should be understood in the context according to the facts and circumstances of each case. Though section 157 of the Evidence Act provides that the statement of a fact is required to be made at once or at least shortly after the event when a reasonable opportunity for making it present itself, that is not the mandatory requirement of the rule of law. What is reasonable time is a question of fact in each given case. No hard and fast rule can be laid down for it. The words at or about the time when the fact took place used in the section means as early as can reasonably be expected in the circumstances of the case. Even if such statement is made within a reasonable proximity of time still such statement can be used for corroboration. The legislature would not have intended to limit the time factor to close proximity.”

This Division in the case of State and another vs. Abdul Kader alias Mobile Kader and others, reported in 67 DLR (AD), page 6 has also held that;

“And mere delay in recording the statement of a witness by the investigation officer cannot be the sole ground to discharge his evidence, if he with stands the test of cross- examination and thus appears to be truthful witness.”

In view of the above proposition couple with the prevailing facts at the relevant time that the condemned prisoners were belonged to an out lawed organization and because of their terrorist activities the people of that locality were afraid of them, the delay in examining the trustworthy and natural eye witnesses namely P.Ws-4,5,9,7, and 14 cannot be brushed aside. They are the most natural, competent, credible and trustworthy witnesses.

P.Ws-5 Md. Sohrab Hossain & 9 Akkas Ali in their deposition categorically stated that they could identify the said condemned prisoners and thereby in taking consideration the confessional statement of the co-accused couple with the evidence of P.Ws-4, 5 and 9 the trial Court and High Court Division rightly affirmed the conviction of condemned prisoners as such and there is no legal scope to interfere with the impugned judgment and order of conviction. 

Having considered and discussed above we have no hesitation to hold that the prosecution has been able to prove the charge under section 302/34/109 of the Penal Code brought against the present condemned prisoners beyond doubt and the trial Court as well as the High Court Division rightly found them guilty for committing such offences.  

Thus, the Criminal Appeal Nos.92 and 56, of 2014 is dismissed.

We do not find any extenuating circumstances to commute the sentence of condemned prisoners Farook alias Fortool and Md. Abdul Gafur alias Milon and thus their sentence of death is maintained. 

 However, considering the role of condemned prisoners Setabuddin and Shahab Uddin alias Saman in commission of offence as well as the factum that they were not apprehend at the place of occurrence like two other condemned prisoners, we are of the view that justice would be best served if the sentence of death is commuted one to imprisonment for life. Accordingly, Setabuddin and Saman alias Samad is sentenced to imprisonment for life with a fine of Tk.50,000/- in default to suffer rigorous imprisonment more.

The appellants Setabuddin and Saman alias Samad will get the Benefit of section 35A of the Code of Criminal Procedure in calculation of their sentence and other remission as admissible under the Jail Code.

The concerned Jail Authority is directed to move the appellants namely Setabuddin and Saman alias Samad to the regular jail from the condemned cell forthwith.

Since the sole appellant in Criminal Appeal No.57 of 2014 Md. Matiar Rahman @ Motu, son of the late Kayesuddin of Village-Kristipur, Police Station-Raninagar, District-Naogaon has died the appeal has become stands abated.

Accordingly, the Criminal Appeal No.57 of 2014 is dismissed as being

abated.

C.J.

J. J.

B/O.Imam Sarwar/ Total word: 5039