Present:

Mr. Justice S.M. Emdadul Hoque

and

Mr. Justice Ashish Ranjan Das

Death Reference No.100 of 2016.

The State

….. The petitioner.

-Versus-

Siddique Vandari (Absconding) and others.

….. The condemned-convicts. Mr. Md. Fazlur Rahman Khan, D.A.G with Mr. Md. Rezaul Karim, D.A.G. with

Mr. Md. Sharifuzzaman Majumder, A.A.G with

Mr. Ashikuzzaman Bablu A.A.G with

Mr. Abu Naser (Swapan), A.A.G

….. for the State.

Ms. Mst. Hasna Begum, Advocate

.... the State Defence Lawyer.           Heard  on  24.05.2022,  25.05.2022,  26.05.2022, 29.05.2022, 02.06.2022 and Judgment on: 01.11.2022.

S.M. Emdadul Hoque, J:

The learned Additional Sessions Judge, 1st Court, Gazipur has made this death reference under Section 374 of the Code of  Criminal  Procedure  for  confirmation  of  the  sentence  of death  awarded  upon  the  condemned-convict  namely  (1) Siddique  Vandari  (Absconding),  son  of  late  Munsur  Ali  (2) Tareq @ Murad Hossain (Absconding), son of Siddique Vandari and (3) Ayesha Khatun (Absconding), wife of Siddique Vandari under Sections 302/379/34 of the Penal Code in Sessions Case

No. 171 of 2009 arising out of Joydebpur Police Station Case No. 64(5)08 dated 15.05.2008 corresponding to G.R. No. 554 of 2008 sentencing them to death and also to pay a fine of Tk. 10,000/-  (ten  thousand)  each  by  its  judgment  and  order of conviction  and  sentence  dated  03.08.2016  and  the  learned Judge also convicted them under section 379 of the Penal Code and sentencing them to suffer rigorous imprisonment for 3 (three) years and also to pay a fine of Tk. 5,000/- each.

The prosecution case as made out by the informant Md. Jamir Hossain Paik, the P.W-1, in short, is that the occurrence took place on 14.05.2008 at about 5:00 p.m. His wife Most. Safia Begum went out for a walk from her house at about 5:00 p.m. on 14.05.2008 since she was a Diabetic patient but did not return back. They searched for her in several places but could not find out. Further case is that on the next morning on 15.05.2008  at  5:00  a.m.  they  found  the  dead  body  of  the victim which was laying on north-western side of the house of Hamida with several injuries in the neck, ear, nose, toungue, face  and  body.  At  the  time  of  missing  she  had  wearing necklace and some gold ornaments of her nose. Thereafter with the help of local people they brought the victim to the Sultan General Hospital in Board Bazar, Gazipur and the doctor declared her to death. Thereafter, they informed the police and the police prepared the inquest of the dead body and sent the corpse to the morgue for autopsy. The ornaments may be taken away by unknown persons and perhaps she was killed for taking the said ornaments. Hence the case.

The case was initially investigated by Shahinur Alam, S.I, Joydebpur Police Station who visited the place of occurrence, prepared the sketch map along with separate index, conducted the  inquest  of  the  dead  body  and  sent  the  corpse  to  the morgue  for  post-mortem,  seized  alamats  and  prepared  the seizure  list,  examined  some  of  the  witnesses  and  recorded their statements under Section 161 of the Code of Criminal Procedure.

But due to his transfer the case was again investigated by S.I. Sazib Datta, who again visited the place of occurrence, examined some witnesses and arrested three accused persons and  among  them  accused  Tareq  alias  Murad  Hossain  and Ayesha Khatun made confessional statements. Subsequently

on  18.12.2008  he  could  arrest  accused  Siddique  Vandari, prepared the sketch map along with separate index and also seized some alamats from the house of Akkas Ali and after completing all the formalities of the investigation found prima- facie  case  against  the  accused-persons  and  submitted  the charge-sheet being No.111 dated 26.02.2009 under Sections 302/ 379/34 of the Penal Code.

The  case  record  ultimately  came  to  the  file  of  the learned Additional Sessions Judge, Court No.1, Gazipur, who took  cognizance  and  thereafter  framed  charge  against  the accused-persons under section 302/379/34 of the Panel Code on 08.07.2009 which was read over to the accused who were on the dock to which they pleaded not guilty and claimed to be tried.

At the trial the prosecution examined  as many as 13 (thirteen)  witnesses  among  the  20  (twenty)  charge  sheeted witnesses. The defence also examined 1 witness as D.W.1.

The  trial  court  thereafter  examined  the  accused  who were on the dock under section 342 of the code of criminal

procedure,  which  was  read  over  to  them  to  which  they reiterated their innocence again.

The defence case as could be gathered from the trend of cross  examination  of  the  prosecution  witnesses  and  the examination  under  section  342  is  total  denial  of  the prosecution case. Their further case is that the deceased Shafia Khatun may be killed by some other miscreants and she has been suffering from some diseases and also had attacked by Jin and she esd killed by the said Jin.

After close of the trial the learned Additional Sessions Judge, 1st Court, Gazipur found the accused guilty of the charge leveled against them and convicted and sentenced them as aforesaid.

Thereafter  the  learned  Additional  Sessions  Judge,  1st Court, Gazipur Made this death reference under section 374 of the  Code  of  Criminal  Procedure  for  confirmation  of  the sentence of death and sent all the records to this court.

Since all the three condemned-convicts are absconding the  Government  engaged  the  learned  Advocate  Ms.  Hasna

Begum as the State Defence Lawyer to conduct the case on behalf of the absconding condemned convicts. 

Mr. Abu Naser (Swapan), the learned Assistant Attorney General takes us through the Ejahar, the charge, the inquest report, the post mortem report, the seizure list, deposition of the witnesses, the impugned judgment  and the  papers and documents as available on the record.

Mr.  Md.  Rezaul  Karim,  the  learned  Deputy  Attorney General in support of the reference submits that in the instant case an innocent lady was killed and she had no enmity with anyone. He submits that the prosecution succeed to prove the case  beyond  all  reasonable  doubt  by  adducing  sufficient evidence. He further submits that though no eye-witness in the instant case but the condemned-convict Tareq alias Masud and  Ayesha  Khatun  made  confessional  statements  under section 164 of the code of criminal procedure and disclosing the facts of murder and implicating themselves along with the condemned convict Siddique Vandari. He further submits that the magistrate who recorded the confessional statement as

P.W.2 proved the confessional statement and disclosed that which were true and voluntary.

He  further  submits  that  on  the  discloser  and identification of accused Siddique Vandari the police recovered sofa-set and a gamcha from his house and which was proved by  the  P.W.12  Abdul  Malek  and  above  are  the  substantial evidence  and  the  two  convicts  disclosed  that  the  seized materials were used for killing the victim and also supported by the confessional statement of two condemned convicts. He submits that the prosecution able to prove the case beyond all reasonable  doubt.  He  prayed  for  acceptance  of  the  death reference.

On the contrary Ms. Hansa Begum, the learned State Defence  lawyer  submits  that  the  prosecution  measurably failed  to  prove  the  charge  leveled  against  the  condemned convict beyond all reasonable doubt. She submits that the trial court  without  considering  the  material  evidence  on  record passed the impugned judgment. She submits that this is a case of no evidence and none of the witnesses deposed that the victim was killed by the condemned convicts.

She further submits that trial court only considering the confessional  statements  of  accused  Tareq  alias  Murad  and Ayesha  Khatun  convicted  the  accused  but  the  confessional statement  of  Ayesha  Khatun  was  purely  an  exculpatory confession  and  the  confessional  statement  of  Tareq  alias Murad was not true and voluntary. She further submits that on perusal of the two confessional statements it is found that the magistrate without following the procedure of section 164 and 364  of  the  code  of  criminal  procedure  recorded  the confessional  statements.  She  further  submits  that  all  the column of the confessional statement are blank and not filled up  by  the  magistrate  even  not  mentioning  that  in  whose custody the accused were staying the room of Magistrate and from  where  it  is  proved  that  the  magistrate  did  not  give sufficient  time  for  reflection,  furthermore  nothing  was mentioned  that  when  the  confessional  statement  was recorded and concluded and no mentioning that the accused was released or sent to Jail authority from his room. He further submits  that  the  magistrate  P.W.2  in  his  deposition  stated that:  “He  gave  30  minutes  time  to  the  accused  Tariq  alias

Murad”  but  in  cross  examination  he  also  stated  that  he examined the accused Tareq alias Murad immediately after he brought to his room. She further submits that the mandatory requirements that the magistrate to certify or state affidavit about the truth and fairness of the confessional statement but the  said  mandatory  requirement  has  not  made  by  the magistrate  in  such  a  case  the  confessional  statements recorded violating the provisions of section 164 and 364 of the code of criminal procedure. She further submits that even in support  of  the  said  confessional  statement  no  substantive evidence  produced  by  the  prosecution  and  as  such  the conviction of the condemned-convicts should not be sustained.

She further submits that though the convicts faced the trial but after conclusion of the 342 examination, they did not appear before the court and the aforesaid absconsion does not means the guilty mind of the accused.

She submits that on perusal of the two sketch maps it is found that the prosecution sifted the place of occurrence of recovery of the dead body. She prays for rejection of the death reference.

Let  us  discussed  the  evidence  of  the  prosecution

witnesses.

P.W.1, Md. Jamir Hossain Paik, the informant of the case and  the  husband  of  deceased  Shafia,  deposed  that  the occurrence took place on 14.05.2008 at about 5:00 p.m. and the victim Most. Safia Begum went out for a walking from his house at about 5:00 p.m. as she was a Diabetic patient but did not return back and they searched for her in several places but could not trace her out. He deposed that on next morning on 15.05.2008 at 5:00 a.m. they found the dead body which was laying  on  north-western  side  of  the  house  of  Hamida  with several injuries on her neck, ear, nose, toungue, face and body. He  further  deposed  that  at  the  time  of  missing  she  was wearing necklace and some gold ornaments on her nose and thereafter  with  the  help  of  local  people  they  brought  the corpse at Sultan General Hospital in Board Bazar, Gazipur and the doctor declared her as dead. He further stated that he informed the matter to the police and the police prepared the inquest of the dead body and sent the corpse to the morgue

for autopsy and the wearing ornaments may be taken away by unknown persons and she was killed for the said ornaments.

P.W.2, Rigan Chandra Dey, Judicial Magistrate of Gazipur deposed that on 17.12.2008 the investigating officer Mr. Sazib Datta brought accused Ayesha Begum before him and she was given  sufficient  time  for  her  reflection.  He  recorded  the confessional  statement  under  section  164  of  the  Code  of Criminal procedure and the confessional statement was true and voluntary. He proved the confessional statement which marked as Ext-2 and his signatures wherein marked as Exts- 2/1, 2/2, 2/3 and 2/4.

P.W.3 Md. Rafiqul Islam, a neighbour of the informant and the witness of the inquest. He proved the inquest report and he put his signature in the said statement. He deposed that the accused persons were staying in the alleged house as a tenant and the police requested all the neighbours of the informant not to leave their house and he came to know that the accused persons made confessional statement about the murder of the victim Safia Begum.

P.W.4, Abdur Rahim, a neighbour of the informant also did not mention anything but only mentioned that they came to know that three condemned-convict killed the victim Safia.

P.W.5, Md. Hamidul Islam (Rabin), a neighbour of the informant deposed that on the next morning he saw the dead body lying on the road and deposed that the victim was killed by some unknown persons for snatching gold ornaments of the victim.

P.W.6, Md. Sahab Uddin, son of the informant deposed that his mother was killed and the dead body was found in the road. He stated that the police directed all the neighbours to stay their respective house but after 4 days of occurrence the accused persons left their house and fled away from the area and  they  made  confessional  statements  implicating  of  the killing of the victim. But in cross examination he stated that at that time he was staying in abroad and after one month of the occurrence he come back from abroad.

P.W.7,  Abdul  Mannan,  deposed  stated  that  on 15.05.2008 at morning the dead body was found in front the house of Akkas Ali and deposed that he came to know that the accused  persons  also  made  confessional  statements implicating themselves of the killing of the victim.

P.W.8, Md. Arju, one of the neighbour of the informant deposed that the dead body was found in front of the house of Hamida. He deposed that the police requested them not to leave  the  house  but  after  4  days  of  the  occurrence  the condemned-convicts  fled  away  from  the  said  area  and subsequently  he  came  to  know  that  the  accused  made confessional statement before the magistrate.

P.W.9,  Sadiqur  Rahman  alias  Tipu,  deposed  that  the dead  body  of  the  victim  was  found  on  15-05-2018  at  the morning  in  front  of  the  house  of  Akkash  Ali.  The  police requested all the neighbour of the informant not to leave the house  but  subsequently  the  condemned-convicts  fled  away from the said area left the house vacant.

P.W.10, Md. Shahinur Alam, Sub-Inspector of Police, the 1st investigating officer deposed that he held the inquest of the dead  body  and  prepared  the  inquest  report,  prepared  the sketch map along with separate index and examined some of the  witnesses  and  recorded  their  statements  under  section

161 of the code of criminal procedure and he handed over the case docket to officer-in-charge due to his transfer.

P.W.11,  Dr. Md.  Ali  Haider  Khan,  Medical  Officer  of Gazipur Sadar Hospital, deposed that he held the autopsy of the  deceased  Safia  Begum  and  prepared  the  post-mortem report.  He  made  opinion  that:  “Death  was  due  to  violent esphyxia  which  was  due  to  strangulation  (throatling)  which was  antemortem  and  homicidal  in  nature.”  He  proved  the same.

P.W.12,  Malik,  one  of  the  tenant  of  the  occurrence house as a seizure list witness deposed that the police seized a Sofa and a gamcha from the rented house of Siddique Vandari and he put his signature in the seizure list. He proved the said seized materials as material Exhibit No.I. He further deposed that  subsequently  he  came  to  know  that  the  condemned- convicts killed the victim.

P.W.13, Sazib Datta, Sub-Inspector of Police and the 2nd investigating  officer  deposed  that  he  was  entrusted  to investigate the case and again visited the place of occurrence and again prepared the separate sketch map along with index.

He  examined  some  of  the  witnesses  and  recorded  their statement  under  section  161  of  the  Code  of  Criminal Procedure  and  arrested  the  three  accused  persons  among them accused Tareq alias Murad made confessional statement and found the prima-facie case against the accused persons and submitted the charge sheet. He did not mention that he seized  some  materials  from  the  house  of  accused  Siddique Vandari.

These are all about the evidence on record as adduced by the prosecution.

We  have  heard  the  learned  Deputy  Attorney  General and the learned State Defence Lawyer, perused the Ejaher, the charge  sheet,  the  inquest  report,  the  seizure  list,  the  post mortem  report,  the  confessional  statement,  the  impugned judgment and the papers and documents as available on the record.

Admittedly the victim was killed any time from 5:00 p.m. on 14.05.2008 to 5:00 a.m. on 15.05.2008. The dead body was recovered in front of the road of the house of one Akkas Ali. No dispute about the date and time of killing. On perusal of

the initial sketch map that the dead body was recovered from the house of one Hamida but on perusal of 2nd sketch map it is found that the police sifted the place of occurrence since the police  only  mentioned  the  room  of  the  condemned-convict Siddique Vandari that the victim was killed in the said room but did not mention from where the dead body was recovered and on perusal of the 1st and 2nd sketch map it is found that in the 1st sketch map the road mentioned adjacent of the house of one Hamida but in the 2nd sketch map it is found that the investigating  officer  did  not  mention  from  where  the  dead body  was  recovered  and  mentioning  the  road  but  which  is adjacent  to  the  house  of  Akkash  Ali  and  there  are  several houses mentioned in the sketch map specially the house of Akkash  Ali.  So,  on  perusal  of  the  two  sketch  map  and  the evidence of the witnesses it is difficult to ascertain the actual place from where the dead body was recovered and it is our considered  view  that  the  subsequent  investigating  officer failed to prepare the proper sketch map and the subsequent sketch map was prepared on 18.12.2008 i.e. after 7 months of the incident.

We  have  considered  the  evidence  of  the  prosecution witnesses, the P.W.1 the husband of the deceased who did not mention anything about the fact that his wife was killed by the condemned-convicts but in cross examination he stated that the  place  of  occurrence  house  was  given  as  rent  to  the condemned-convicts and the earlier tenant was Shafique and in cross examination he stated that he could not tell how many days the condemned-convicts were living in the said house as tenant and also mentioned that he could not hear the accused persons committed theft before the incident.

He  never  disclosed  that  the  accused  persons  were involved  with  the  alleged  offence  and  they  committed  the murder but one stage he stated that he only came to know that the accused Tareq alias Murad and Ayesha Khatun made confessional  statement  before  the  magistrate  involving themselves of the killing nothing more.

P.W.3 a neighbour of the informant, is the witness of the inquest report and he identified the inquest report and he put his signature thereon. One stage he stated that the accused persons were living at the alleged house as a tenant and the police requested all the neighbours of the informant not to leave  their  house  but  he  came  to  know  that  the  accused persons made confessional statement.

P.W.4 a neighbour of the informant also did not mention anything  but  only  mentioned  that  they  came  to  know  that three condemned-convict killed the victim.

The P.W.5 a neighbour of the informant only deposed that on the next morning he saw the dead body lying on the road  and  deposed  that  the  victim  was  killed  by  unknown persons for snatching the gold ornaments from the victim.

The P.W.6 son of the informant deposed that his mother was killed and the dead body was found on the road. One stage he stated that the police directed all the neighbours to stay at their respective house but after 4 days of occurrence the  accused  persons  fled  away  from  the  area  and  they confessed  to  implicating  them  in  the  murder.  But  in  cross examination he stated that at that time he was in abroad and after one month of the occurrence he came back from abroad.

P.W.7  in  his  deposition  stated  that  on  15.05.2008  at morning the dead body was found in front of the house of Akkas Ali and he came to know that the accused persons also made  confessional  statement  implicating  themselves  in  the murder.

P.W.8  also  the  neighbour  of  the  informant  and  he deposed that the dead body was found on the road in front the house of Hamida and he deposed that the police requested them not to leave the house but after 4 days of the occurrence the condemned-convicts fled away from the said area and he came to know that they made confessional statement before the magistrate.

P.W.9 also deposed that the dead body was found in the morning on the road in front the house of Akkash Ali and the police requested all the neighbours of the informant not to leave  the  house  but  subsequently  the  condemned-convicts fled away from the said area.

P.W.11  the  doctor  who  held  the  post-mortem  of  the victim  Safia  Begum  and  proved  the  same.  He  made  the following opinion: “Death was due to violent esphyxia which was due to strangulation (throatling) which was antemortem and homicidal in nature.”

P.W.10 the 1st investigating officer who only conducted the inquest of the dead body and prepared the inquest report, proved  the  sketch  map  along  with  separate  index  and examined the witnesses and recorded their statements under section 161 of the code of criminal procedure and since due to his transferred he handed over the case docket to the officer- in-charge.

P.W.12, is the seizure list witness who deposed that the police seized a Sofa and a gamcha from the rented house of Siddique Vandari. He identified the said seized materials as material Exhibit-I. He stated that he came to know that the condemned-convicts killed the victim.

P.W.13 the 2nd investigating officer who submitted the charge sheet and deposed that he made separate sketch map and  also  examined  some  witnesses  and  recorded  their statements  under  section  161  of  the  Code  of  Criminal Procedure and arrested three accused persons among them accused Tareq alias Murad made confessional statement and thereafter he submitted charge sheet. He did not mention that

he seized some materials from the house of accused Siddique Vandari.

From the above evidence on record it is clear that no direct evidence that the accused persons killed the victim Safia Begum. Some witnesses stated that they only came to know that the two accused made confessional statement implicating themselves to the murder.

It also appears that in the instant case the defence side also examined one witness the accused Tarek alias Murad. In his deposition he stated that he could not know nothing about the  murder  but  after  7  months  of  the  incident  the  police arrested them and kept them in the police custody for two days and thereafter the police brutally tortured him and forced him  to  make  confessional  statement.  After  that  police forcefully  recorded  his  statement  under  section  161  of  the code  of  criminal  procedure  and  as  per  161  statement  the magistrate recorded the same.

On perusal of the evidence it is found that no direct evidence that the condemned-convicts killed the victim Safia Begum.  The  material  evidence  for  conviction  are  the confessional statements of the condemned-convict Tareq alias Murad and Ayesha Khatun the seized materials the Sofa-set and a Gamcha allegedly which was seized from the house of Siddique Vandari and which was used for killing the victim. 

The confessional statement was recorded by the P.W.2 Rigan Chandra Dey, the Judicial Magistrate, Gazipur. He proved the  said  confessional  statements  in  his  testimony.  In  cross examination he denied the suggestion of the defence that he did not record the confessional statement on the basis of the 161 statement which was procedure by the police before him. In cross examination this witness could not say that when the accused Tareq alias Murad was brought to his Ejlash and when he was brought to his chamber and stated that the accused Tareq alias Murad was brought before him at 4:00 p.m. and he himself received the accused and gave him one hour time and in cross examination he stated that the accused was given 30 minute time for his reflection but one stage he stated that he recorded  the  confessional  statement  immediately  after  the accused was brought before him. He denied the suggestion

that: ÔÔ48 N›Uv police custody †Z †i‡L AgvbywlK wbh©vZb K‡i Avmvgx‡K aivawi K‡i Avgvi †P¤¦v‡i wb‡q Av‡m|ÕÕ

From the aforesaid facts it is found that only from the confessional  statement  of  accused  Tareq  alias  Murad  and

Ayesha Khatun the case of murder of the deceased Shafia was

brought it to light.

The confessional statement of accused Ayesha Khatun as

under: ÔÔNUbvi ZvwiL 14/05/2008 gvMwi‡ei Avhv‡bi c~‡e© mvwdqv †eMg Avgv‡`i evwo‡Z Av‡m| Avwg mvwdqv †eMg‡K Lvjv e‡j WwK| mvwdqv †eMg Avgvi bvwZ‡K †`Lvi Rb¨ Av‡m| G mgq Avgvi ¯^vgx Avgvi †Q‡ji Kvua †_‡K MvgQv wb‡q mvwdqv †eM‡gi Mjvq †cuwP‡q a‡i| G mgq mvwdqv †eMg gviv hvq|

Gici jvkUv Avgvi ¯^vgx †mvdvi wb‡P iv‡L| ciw`b †fv‡i Avgvi ¯^vgx I Avgvi

†Q‡j cv‡ki GK evoxi ‡MvmjLvbvi mvg‡b iv¯—vi cv‡k †d‡j iv‡L| Avgvi ¯^vgx

GB nZ¨vi cwiKíbv K‡i| GB Avgvi e³e¨|ÕÕ  

We  have  perused  the  said  confessional  statement  of

Ayesha from where it is found that the magistrate did not fulfill

all the column such as when the accused was brought before

him and on which date the accused was arrested by the police

and in whose custody she was during the period of reflection

as given by the magistrate, even no memorandum was made

by  the  magistrate  to  that  effect  that  the  said  confessional

statement was true and voluntary and it is also not written

that when the accused was sent to the Jail custody. It also

appears that the aforesaid confessional statement purely is an

exculpatory confession.

The confessional statement of the accused Tareq alias

Murad as under: ÔÔNUbvi ZvwiL MZ 14/05/08 gvMwi‡ei Avhv‡bi c~‡e©| G mgq mvwdqv †eMg Avgv‡`i evwo‡Z Av‡m| G mgq wg Avgvi AveŸv I Avgvi

Av¤§v evwo‡Z wQjvg| G mgq Avgvi Av¤§v A_ev Avgvi AveŸv †MU AvU‡K †`q,

Gici Avgvi AveŸv Avgvi Kv‡ai †_‡K MvgQv wb‡q mvwdq †eM‡gi Mjvq †cwP‡q

a‡i| Avwg I Avgvi Av¤§v mvwdqv †eMg‡K a‡i vwL| Gici mvwdqv †eM‡gi

wbk¦vm eÜ n‡q gviv †M‡j Avgv‡`i evmvi †mvdvi bx‡P ivwL| Avgvi AveŸv

mvwdqv LvZy‡bi Mqbv kixi †_‡K Ly‡j ciw`b wewµ K‡i| c‡i jvkwU Avgvi

AveŸvi wb‡`©‡k Avwg I Avgvi AveŸv wg‡j †mw`b iv‡Z Avgv‡`i †M‡Ui evB‡i

iv¯—vi Icv‡i †d‡j Avwm| Avgvi wcZv GB nZ¨vi g~j cwiKíbvKvix| GB Avgvi

e³e¨|ÕÕ

On perusal of the confessional statements it is found that the magistrate did not fulfill column No. 1, column No. 2, column  No.  3  and  no  memorandum  was  made  by  the magistrate as required by law and did not write that the said confessional statement was true and voluntary. He also did not mention the time when he completed the recording of the confessional statement. It is a mandatory provision that the magistrate  should  record  the  statement  following  the procedure  of  section  164  and  364  of  the  code  of  criminal procedure. Sub-section 2 of section 364 specifically mentioned that:  “when  the  whole  is  made  conformable  to  what  he declares is the truth, the record shall be signed by the accused and the magistrate or judge of such court, and such magistrate or judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.”

We have already considered the 164 statements of two accused and it is found that the magistrate did not fulfill all the mandatory  provision  of  law  in  recording  the  confessional statements. Even nothing was written that in whose custody the accused were kept during the period of their reflection and no memorandum was given by the magistrate to the effect that the statements were true and voluntary. Furthermore it is

found that the confessional statement of the accused Ayesha Khantun is purely an exculpatory confession.

Though  in  the  confessional  statement  of  the  accused

Tareq alias Murad at one stage stated that:  Avgvi AveŸv Avgvi Kv‡ai †_‡K MvgQv wb‡q mvwdqv †eM‡gi Mjvq †cwP‡q a‡i| Avwg I Avgvi Av¤§v mvwdqv †eMg‡K a‡i ivwL| Gici mvwdqv †eM‡gi wbk¦vm eÜv n‡q gviv †M‡j Avgv‡`i evmvi †mvdvi bx‡P ivwL|

And also stated to the effect: Avgvi AveŸv mvwdqv LvZy‡bi Mqbv kixi †_‡K Ly‡j ciw`b wewµ K‡i|  

From the aforesaid version it is also found that he also implicated  himself  with  the  offence  and  disclosed  that  his

father Siddique Vandari pulled on a Gamcha around the neck

of the victim Shafia Begum and took away her gold ornaments.

It appears that accused Tareq alias Murad also took part to

commit the offence. But it has already been considered that

the  aforesaid  confessional  statement  was  not  recorded provided under section 164 and 364 of the code of criminal procedure.

Furthermore, it is well settled principle that confession

of  a  co-accused  cannot  be  treated  as  substantive  evidence

against  the  other  person  to  find  him  guilty  of  the  offence charged  with  and  it  would  require  other  evidence  whether direct or circumstantial linking such a person with the crime, before a confession made by a co-accused can be adverted to be adjudging the guilt of that person.

In  the  case  of  The  State  –vs.  Abdul  Kader  @  Mobile Kader and others, reported in 67 DLR (AD)-6, in majority view that: “If there is no other evidence against co-accused except the confession, then, the confession by itself being merely a matter  to  be  taken  into  consideration,  and  not  being  an evidence under section 3, no conviction of the co-accused could not given relying on such confession.”

 And in the case of Saley Akram alias Polash –vs. The State, reported in 73 DRL (AD)-264, wherein the principle laid down that: “The confession made by a co-accused cannot be said that it is corroborated by other evidence and, as such, it cannot be the sole basis of conviction of another co-accused.”

Furthermore, none of the witness deposed that Siddique Vandari  committed  the  offence.  Even  no  evidence  that  the gold ornaments was sold to anyone as stated by the accused

Tareq. Even the alleged seized Gumcha by which the victim was killed. In cross examination by the defence the doctor who held the autopsy stated that:  “Abrassion injury “nvZ e¨eüZ n‡q‡Q| MjvwU‡c nZ¨vi †¶‡Î nv‡Zi wPý †`wLwb|ÕÕ  He further stated that: ÔÔAvNv‡Zi aib †`‡L eySv hvq †h, blunt weapon e¨envi Kiv n‡q‡Q|ÕÕ

So, from the evidence of doctor who held the autopsy contradict the confession as made by the accused Tareq.

Considering the aforesaid facts and the discussions as made above it is our view that the conviction was awarded against the condemned-convict Siddique Vandari without any evidence. And without any substantive evidence the conviction cannot be sustained.

In the case of Ibrahim Mollah –Vs. The State, reported in

40 DLR (AD)-216 and the  case of Delower Hossain -vs. The State, reported in 5MLR (AD)-27, the principle laid down that

in  order  to  form  the  basis  of  conviction  the  confessional statement  of  accused  must  be  inculpatory  implicating  the maker with commission of the offence. And the exculpatory confession  cannot  be  the  basis  of  the  awarded  conviction without  any  substantive  evidence.  Furthermore,  in  the  said case the appellate division took view that in such a case it is better to make him as witness.

So, from the aforesaid decision and discussion it is our considered view that the conviction of accused-condemned- convict Ayesha Khatun is also without any evidence.

We have already considered the confessional statement of accused Tareq alias Murad and it has been discussed that the  said  confessional  statement  was  recorded  by  the magistrate  P.W.2  without  fulfillment  of  all  the  procedure provided under section 164 and 364 of the code of criminal procedure. In the case of State –Vs. Babul Miah, reported in 63 DLR  (AD)-10,  wherein  the  principle  set-up  held  that:  “The provision  of  sub-section  3  of  section  164  is  mandatory  and therefore the magistrate is required to fill-up the column No.7 of the form for recording confession”

We have perused the confessional statement and found that the magistrate did not fill-up the said column No. 7 in his hand and did not certify that the said confessional statement was  true  and  voluntary  and  no  evidence  that  the  accused

Tareq alias Murad was involved regarding the alleged offence except the confessional statement.

Furthermore it is found that the police did not prove the seizure list and which are only the incriminating materials as seized such a Sofa-set and a Gamcha. As such it could not be presumed that the said Gamcha was used for murder, even no one  except  P.W.12  proved  the  same.  But  P.W.12  did  not mention  the  date  and  time  when  the  said  seizure  list  was prepared by I.O. and who prepared the said seizure list.

It is also found from the prosecution case that become of snatching the ornament from the body of the victim the accused-persons killed the victim. But no such evidence that the  said  ornament  was  sold  to  anyone.  Though  in  the confessional  statement  of  accused  Tareq  alias  Murad  it  is mentioned  that  his  father  Siddique  Vandari  sold  the  said ornament but the investigating officer did not take any step to seize the said sold ornament.

Admittedly the three condemned-convicts had faced the trial and after conclusion of examination under section 342 of the code of criminal procedure the accused persons did not present at the date of pronouncement of the judgment. But on the basis of the same the accused could not be found guilty for the offence.

Since  we  have  sitting  here  to  dispose  of  the  Death Reference under section 376 of the code of criminal procedure in such a case when this court found that there is no evidence to convict the accused and the prosecution measurably failed to prove its case this court then has authority to dispose of the case on the basis of the evidence on record.

Considering  the  entire  provision  of  law  and  the discussions as made above, since the prosecution measurably failed to prove the charge leveled against the accused persons beyond  all  reasonable  doubt,  in  such  a  case  the  moral conviction cannot be awarded.

Having considered the facts and circumstances of the case and the discussions as made above we find force of the argument of the learned State Defence Lawyer.

          In  the  result,  the  death  reference  is  rejected.  The conviction  and  sentence  passed  by  the  Additional  Sessions Judge,  1st  Court,  Gazipur  under  Sections  302/379/34  of  the Penal Code in Sessions Case No. 171 of 2009 arising out of Joydebpur Police Station Case No. 64(5)08 dated 15.05.2008 corresponding  to  G.R.  No.  554  of  2008  sentencing  the condemned-convicts to death by its judgment and order of conviction and sentence dated 03.08.2016 and also to pay a fine of Tk. 10,000/- (ten thousand) each and the learned Judge also convicted the condemned-convicts under section 379 of the  Penal  Code  and  sentencing  them  to  suffer  rigorous imprisonment for 3 (three) years and also to pay a fine of Tk. 5,000/- each is hereby set-aside.

Communicate  the  judgment  and  transmit  the  lower Court records at once.

Ashish Ranjan Das, J:

I agree.

M.R.