Present:

       Mr. Justice Md. Kamrul Hossain Mollah 

   and

Mr. Justice Mohi Uddin Shamim

Death Reference No. 145 of 2017

The State

         ....………….. Petitioner

-  Vs -

Md. Shakil and another

             ...…. Condemned-Prisoners

with

Criminal Appeal No. 14436 of 2017 Md. Shakil

                 ............ Convict-appellant

-  Vs -

The State, represented by the Deputy Commissioner, Gazipur

                  ........... Respondent

with

Criminal Appeal No. 13436 of 2017

Sonjibon Chandra Moni Das

       ............ Convict-appellant

-        Vs -

The State, represented by the Deputy Commissioner, Gazipur

        ........... Respondent

With

Jail Appeal No. 472 of 2017 Md. Shakil

                 ............ Convict-appellant

-        Vs -

The State

                 ........... Respondent With

Jail Appeal No. 473 of 2017

Sonjibon Chandra Monidas

       ............ Convict-appellant

-        Vs -

The State

                 ........... Respondent

Mr. Bashir Ahmed, DAG with

Mr. Nirmal Kumar Das, AAG with

         Mrs. Syeda Shobnum Mustary, AAG with          Mr. Tariqul Islam (Hira), AAG

                                        ……. For the State

Mr. A K M Fazlul Huq Khan Farid,

                                           Advocate with                 Mr. Md. Hadiul Islam Mollick, Advocate

                                                          with

Mr. Mohammad Abul Hasnat Mollick,

                                                   Advocate

            ....... For the Appellant

(In Criminal Appeal No. 14436 of 2017)

Mr. Md. Helal Uddin Mollah, Adv. with Mr. Jahedul Alam, Advocate with

Ms. Syeda Farah Helal, Advocate

           ...… For the Appellant (In Criminal Appeal No.13436 of 2017)

Heard on: 10.09.2023, 11.09.2023 and Judgment on 17.09.2023

Mohi Uddin Shamim, J.

This Death Reference under section 374 of the Code

of Criminal Procedure, 1898 (hereinafter referred to as the Code) has been made by the learned Sessions Judge, Gazipur for confirmation of the death sentence imposed upon the condemned-prisoners  namely,  (1)  Md.  Shakil  and  (2) Sonjibon Chandra Monidas vide judgment and order of conviction and sentence dated 31.10.2017  in Session Case No. 1219 of 2017 arising out of Kapasia Police Station Case No. 14 dated 19.11.2016 corresponding to G.R. No. 241 of 2016 under sections 302/34 of the Penal Code along with a fine of Tk. 10,000.00 each.

By the said judgment and order of conviction and sentence,  the  condemned-prisoners  were  also  convicted under sections 201/34 of the Penal Code and sentenced them to suffer rigorous imprisonment for 05 (five) years with a fine of Tk. 2,000.00 in default to suffer rigorous imprisonment for 01 (one) month more.

Against the said judgment and order of conviction and  sentence,  condemned-prisoners  preferred  Jail  Appeal Nos. 472 of 2017 and 473 of 2017. Subsequently, they also preferred 2 (two) regular Criminal Appeals being Nos. 14436 of  2017  and  13436  of  2017  respectively  against  the  said judgment and order of conviction and sentence.

Since  the  Death  Reference  and  the  connected Criminal Appeals as well as Jail Appeals have arisen from the same judgment and order, and that the common questions of law and facts involved therein are same, hence those have been  heard  together  and  are  being  disposed  of  by  this common judgment.

The prosecution‟s case, in brief, is that on 19.11.2016, Uttam Chandra Monidas, as the informant, lodged a First Information Report (F.I.R.) with Kapasia Police Station. He alleged that his younger brother, Ujjal Chandra Monidas, worked as a technician at a grill workshop owned by Atiqul at "Chinaduli Baghia Moor Bazar" under Kapasia Police Station. On 17.11.2016, around 4:00 P.M., Ujjal left home but did not return by night. At approximately 10:30 P.M., the informant called his brother's mobile, only to find it switched off. After informing nearby relatives and local respectable persons, he searched for his brother „hither and thither‟ but could not find him. On 19.11.2016, in the afternoon, the informant learned from local sources that the Kapasia Police had discovered a young man's body on the bank of the Shitalakhya River near Junia village and had taken it to the police station. Upon hearing this, he, along with his father, mother, and close relatives, rushed to the police station and identified the body as that of his deceased brother, Ujjal Chandra Monidas. The police made a General Diary entry (No. 648 dated 19.11.2016) regarding the body, prepared an inquest report, and sent the body to Shahid Tajuddin Ahmed Medical College Hospital, Gazipur, for post-mortem examination. Earlier, on 17.11.2016, around 7:30 P.M., while the informant was at his saloon at Targaon Medical Moor, he had seen his brother Ujjal walking south with his friends, Md. Shakil and Sanjibon Chandra Monidas. Upon inquiry, he found that both Shakil and Sanjibon were also missing from their respective homes. On 19.11.2016, at midday, the informant contacted Ujjal‟s fiancée, Shanta, who informed him that on 17.11.2016, at around 8:00 P.M., while she was talking to Ujjal over the phone, she suddenly heard his cry, followed by the line being disconnected. His mobile had been

switched off since. On the night of 19.11.2016, the Officer- in-Charge of Kapasia Police Station arrested the accused, Md. Shakil and Sanjibon Chandra Monidas, who confessed at the police station that they had killed Ujjal Chandra Monidas. According  to  their  confession,  they  had  premeditatedly murdered Ujjal by slitting his throat with a sharp weapon and had thrown his body into the Shitalakhya River to conceal the crime. Consequently, the informant lodged the F.I.R., leading to the initiation of Kapasia P.S. Case No. 14 dated 19.11.2016 under Sections 302/201/34 of the Penal Code.

The inquest report of the dead body was prepared by the Kapasia Police Station, Gazipur and on 20.11.2016 the Post Mortem Report was conducted by Dr. Pronoy Bhushan Das of Gazipur Sadar Hospital.

On 21.11.2016 and 22.11.2016, the convict-appellant Md. Shakil and Sonjibon Chandra Monidas made 2 (two) separate  confessional  statement  respectively  before  the learned Senior Judicial Magistrate, Gazipur under section 164 of the Code of Criminal Procedure.

The  case  was  investigated  by  Mr.  Moniruzzaman Khan  (PW.16),  Sub-Inspector,  Kapasia  Police  Station  and after  completion  of  investigation  submitted  charge  sheet being  No. 138 dated 11.06.2017 under sections 302/201/ 379/34/411 of the Penal Code against the appellants and another.

Eventually, the case was transmitted to the Court of learned Sessions Judge, Gazipur for holding trial and it was numbered as Session Case No. 1219 of 2017. During trial formal charge was framed under sections 302/201/34 of the Penal Code against the appellants, which was read over and explained to them, who pleaded not guilty and claimed to be tried.

In course of trial the prosecution examined as many as 16 (sixteen) witnesses and the defence examined 02 (two) witnesses  (only  for  convict  Shakil)  to  substantiate  their respective cases.

On  closure  of  the  evidence  of  the  prosecution, learned sessions Judge examined the condemned prisoners - convict appellants and the acquitted accused under section 342 of the Code of Criminal Procedure, where they pleaded their innocence once again and the Convict Appellant Shakil intended to produce witness on his behalf.

The defence cases, as it appears from the trend of cross examination of the prosecution witnesses and of the examination  of  the  defence  witnesses  on  behalf  of condemned  prisoner  Shakil  were  that  the  accused  are innocent,  and  they  were  compelled  to  make  confessional statements under section 164 of the Code before the learned Magistrate by torture.

That after conclusion of trial, considering the facts and circumstances of the case and evidences on record, the learned  Sessions  Judge,  Gazipur  found  the  condemned prisoner Md. Shakil and Sonjibon Chandra Monidas guilty for Murdering  the victim Ujjal Chandra Monidas and thereby convicted them under sections 302/34 of the Penal Code and sentenced them with death along with a fine of Tk.10,000/- and also convicting them under sections 201/34 of the Penal Code to suffer rigorous imprisonment for 05 (five) years with a fine of tk. 2000/- in default to suffer rigorous imprisonment for 01 (one)  month more, by his judgment and order of conviction and sentence dated 31.10.2017. The defence could not  prove  its  plea  that  the  accused  are  innocent  and  for physical  torture  of  police  they  made  those  confessional statements  under  section  164  of  the  Code  of  Criminal Procedure. 

Mr. Bashir Ahmed, learned Deputy Attorney General with Mr. Nirmal Kumar Das, the learned Assistant Attorney General, appearing on behalf of the State having taken us to the  F.I.R,  Charge-Sheet,  Charge  framing  order,  Inquest Report, Post-Mortem Report, Confessional Statements made under section 164 of the Code, evidences-on-record and the impugned judgment and order of conviction and sentence including all other connected materials available in the Paper Book strongly submits that, the prosecution had been able to prove the charge as brought against the condemned-prisoners in commissioning of the brutal murder of the deceased victim Ujjal Chandra Monidas by adducing cogent, trustworthy and indubitable evidence and accordingly, the learned judge of the Trial Court rightly passed the impugned judgment and order of conviction and sentence, which warrants no interference by this Hon‟ble Court.

Learned DAG further submits that, the accused have made  confessional  statements voluntarily  implicating themselves in the alleged crime of murder of the victim Ujjal Chandra  Monidas  in  corroborating  each  other  in  material particulars  which,  on  scrutiny,  found  true, voluntary  and inculpatory in nature, on the basis of which, the judgment and order of conviction and sentence of death is found to be correct.  Moreover,  the  accused  did  not  take  the  plea  of minority at the trial stage of the case and as such plea raised at the time of placing argument and without any document bears no value in the eye of law. In support of his submission, Mr. Bashir Ahmed, the learned Deputy Attorney General has referred to the cases of Mulakhraj and others Vs. Satish Kumar and others, reported in (1992) 3 Supreme Court Cases 43; Khalil Mia Vs. State, reported in 4 BLC (AD) 223; Mahavir Singh Vs. State of Haryana, reported in (2014) 6 Supreme Court Cases 716; Aziz @ Azizul @ Azid and others Vs. State, reported in 73 DLR (AD) 365 and Khorshed (Md) and another Vs. State, reported in 73 DLR (AD) 83.

He finally submits that the learned Judge of the trial court rightly passed the impugned judgment and order of conviction and sentence against the condemned prisoners, and therefore, it warrants no interference by this Hon‟ble Court. The defence failed to prove its claim that the accused were innocent and that their confessional statements under Section 164 of the Code of Criminal Procedure were made due to police torture. Accordingly, the learned Deputy Attorney General prayed for the acceptance of the death reference and the dismissal of the Criminal Appeals and Jail Appeals  filed  by  the  condemned  prisoners  against  the impugned judgment and order of conviction and sentence.

On the contrary, Mr. A. K. M. Fazlul Huq Khan Farid, the learned Advocate appearing on behalf of condemned- prisoner namely Md. Shakil in Criminal Appeal Nos. 14436 of 2017  has  tried  to  impeach  the  veracity  of  the  impugned judgment and order of conviction and sentence. At the very outset he submits that, there is no eye-witness in the case and although  the  accused  Md.  Shakil  confessed  to  the  police about the killing of the deceased Ujjal Chandra Monidas but the prosecution witnesses could not give consistent testimony to corroborate the confessional statement and therefore the testimony of the prosecution witnesses cannot be the basis for awarding punishment to the accused.

The learned Advocate also submits that, the accused Md.  Shakil  made  the  confessional  statement  before  the learned Magistrate under section 164 of the Code of Criminal Procedure but before giving such statement, the accused Md. Shakil was in police custody and he was forced to give the statements before the learned Magistrate due to police torture and as such the statements was not voluntary and also not indicative of the facts. Therefore, it would not be lawful to take  any  decision  in  the  present  case  based  on  the  said confession.

The learned Advocate further submits that two defence witnesses, both of whom are very close to the accused Md. Shakil, have clearly stated that Md. Shakil could not have been involved in the murder of the victim, Ujjal.

Mr. Farid, the learned Counsel has referred to the cases of Sree Ranjit Kumar Pramanik, reported in 1992 BLD (HC) 284; Ismail Sarker @ Sudan Member and others Vs. The State, reported in 33 DLR (1981) 320; Ramreddy Rajeshkhanna Reddy and another Vs. The State of Andhra Pradesh, reported in 2006 Criminal 353 Supreme Court of India; Humayun Kabir (Md) Vs. State, reported in 74 DLR (AD) 91; The State Vs. Mofizuddin and others, reported in 11 MLR (AD) 76; State Vs. Shafique and others, reported in 43 DLR (AD) (1991) 203; Zahirul Islam @ Dipu (Md) Vs. The State, reported in 20 BLC (AD) 129; Habibur Rahman @ Habu and others Vs. The State, reported in 1 CLR (AD) 295 and The State Vs. Abul Basher Tipu and others, reported in 1 CLR (AD) 379.

Finally,  he  submits  that,  the  Death  Reference  be rejected by acquitting the condemned-prisoner Md. Shakil, as well as allowing the Criminal Appeal No. 14436 of 2017 and also the Jail Appeal No. 472 of 2017 as filed against the impugned judgment and order of conviction and sentence dated 31.10.2017.

Mr. Md. Helal Uddin Mollah, the learned Advocate appearing  for  the  condemned  prisoner  Sonjibon  Chandra Monidas  in  Criminal  Appeal  No.  13436  of  2017,  had strenuously challenged the impugned judgment and order of conviction and sentence. He contends that the prosecution has miserably failed to prove the charges against the accused with neutral, natural, and trustworthy evidence. He further argues that the impugned judgment is flawed, as Sonjibon Chandra Monidas is not named in the F.I.R., and the Post Mortem  Report  does  not  corroborate  his  confessional statement,  which  he  asserts  is  neither  voluntary  nor  true. Additionally,  the  learned  Magistrate  failed  to  complete columns 8 and 9 of the confessional statement, certifying its voluntariness and truthfulness, and there is no eyewitness to the case. 

He finally prays that, the Death Reference be rejected by  acquitting  the  condemned-prisoner  Sonjibon  Chandra Monidas as well as allowing the Criminal Appeal No. 13436 of 2017 and also the Jail Appeal No. 473 of 2017 as filed against the impugned judgment and order of conviction and sentence dated 31.10.2017.

We have heard the submissions put forward by the learned Deputy Attorney General as well as by the learned Advocates for the accused, perused the impugned judgment and  order  of  conviction  and  other  connected  materials available  on  record  and  also  considered  the  facts  and circumstances of the case.

In a view to arrive at a proper and correct decision in the Death Reference and the connected Criminal Appeals as well as Jail Appeals, let us now sift and weigh the relevant evidences-on-record  together  with  the  attending  and surrounding  facts  and  circumstances  of  the  case  and  the submissions and counter submissions of the learned counsels representing the parties.

The  defense  case,  as  inferred  from  the  cross- examination  of  the  prosecution  witnesses,  was  that  the accused are innocent, and that their confessions were coerced through torture. Furthermore, they were neither named in the F.I.R. nor were there any eyewitnesses to the incident. In this case, it is an undisputed fact that Ujjal Chandra Monidas, a 24 years old grill worker at Atiqul's Grill Workshop in Chinaduli Baghia Moor, Kapasia, Gazipur, the brother of the informant, was killed.

Now,  let  us  examine  the  evidence  provided  by  the prosecution witnesses to determine the extent to which the prosecution has succeeded in proving the charges against the accused Md. Shakil and Sonjibon Chandra Monidas.

Before analyzing the testimony of all the prosecution witnesses, it would be prudent to first assess the confessional statements  made  by  the  condemned  prisoners  before  the learned Magistrate under Section 164 of the Code of Criminal Procedure.

The condemned prisoner Md. Shakil, as the accused, made  a  confession  before  the  learned  Magistrate  under Section 164 of the Code, which is as follows : -

 “B¢j, p”£he J E‹m Bj l¡ 3 Se hå¥ ¢Rm¡jz 3 Se

Bjl¡ HLC p¡ b Qm¡ gl¡ Lla¡j z HL pju Bjl¡ ¢pÜ¡¿¹ ¢eC 3

Se gvj‡qwkqv k¡h, E‹­ml p¡­b kvšÍv e¡ jl HL¢V ®j ul pÇfLÑ ¢Rm, a¡l p¡­b a¡l A¯hd pÇfLÑ ¢Rm z E‹m ¢h­cn ®k­a Q¡C­m ®pC ®j­u h¡d¡ ®cu, ®p a¡­L ¢h­u L­l ®k­a q­h h­mz E‹­ml h¡h¡-j¡ a¡l¡J Q¡C­a¡ e¡ ®k E‹m ¢h­c­n k¡L, k¡C ®q¡L HL fkÑ¡­u E‹m h­m ­p ¢h­cn k¡­he¡ Hhw B¡j¡­clJ ®k­a ®c­h e¡ Hhw ¢Li¡ h Bjl¡ ¢h cn hvB ®p ®c­M ®e­h h­m S¡e¡uz E‹­ml fvwZRx j¤š²¡l p¡­b p”£h­el ®fЭjl pÇfLÑ ¢Rmz I ¢e­u E‹­ml

p¡­b p”£h­el ¢h­l¡d hy¡­dz E‹m a¡l fvwZRx‡K n¡pe L l Hhw

p”£he­L j¤š²¡l mv‡_ ­fÐj Ll­a ¢e­od L­lz p”£he Bj¡­L h­m

E‹m­L ®j­l  ®gm­a q­h, H m­rÉ  p”£he HLV¡  Q¡L¤ H­e Bj¡ cl h¡s£ a l¡ Mz Na 17/11/16 Cw ®hm¡ Ae¤j¡e 11V¡l pju E‹m Bj¡­L ®g¡e L­l 500/- V¡L¡ Q¡uz 3 V¡l ¢c L 500/-

V¡L¡ B¢j E‹m­L ¢cCz a¡lfl 3 Se ®O¡l¡ gl¡ L l alNy¡J

®j¢X Lm ®j¡ s ¢N u j¤¢s M¡Cz a¡lfl 3 Se qy¡V a qy¡V a nÈn¡­el ¢c­L k¡Cz p”£he Bj¡­L Q¡L¥ Be­a h­m, B¢j Q¡L¥ ¢e­u B¢pz Q¡L¥ Be¡l fl p”£he Bj¡­L j¡l­a h­mz B¢j iu

f¡Cz I pju p”£he Bj¡l q¡a ®b­L R¤¢l ¢e­u E‹­ml O¡­s

 L¡f cuz Hlfl p”£h­el q¡a ®b­L R¤¢l ¢e­u B¢j E‹­ml

Nm¡u ®fy¡Q ®cCz Hlfl E‹m j¡l¡ k¡uz a¡lfl B¢j E‹­ml q¡a

Hhw p”£he E‹­ml f¡ d­l ec£­a ®g­m ®cCz Q¡L¥V¡J ec£­a ­g­m ®cCz E‹­ml ®j¡h¡Cm¢V ¢e­u L¡f¡¢pu¡ h¡pøÉ¡­äl HL ®m¡ Ll L¡ R 1,500/- V¡L¡ ¢h¢œ² L¢lz” and

Another  condemned  prisoner  Sonjibon  Chandra

Monidas, as accused, also made a separate confession before the learned Magistrate under section 164 of the Code, which as : -

“B¢j, n¡¢Lm J E‹m 3 Se hå¥ ¢Rm¡jz 3 Se phpju

fСu HLC p¡­b b¡La¡jz E‹­ml fvwZRx j¤š²¡l p¡­b Bj¡l ®fÐj

¢Rm HV¡ E‹m ®S­e Bj¡­L N¡m¡N¡¢m L­l E‹mz j¤š²¡­LJ n¡pe  L­lz  Bh¡l n¡¢L­ml p¡­b  E‹­ml ¢h­cn  k¡Ju¡  ¢e­u

¢h­l¡d ¢Rmz I L¡l­e B¢j J n¡¢Lm E‹m­L ®j­l ®gm¡l ¢pÜ¡¿¹ ®eCz Na 17/11/16 Cw Bjl¡ 3 Se O¤l a ®hl qCz n¡¢Lm S¡e¡u

J­L BSC ®no Ll­h¡z E‹­ml ®fТjL¡ kvšÍvi ®fÊNeÉ¡¾V qJu¡

¢e­u E‹m J n¡¢L­ml ¢h­l¡d ¢Rmz alNy¡J ®j¢X­Lm ®j¡s q­a j¤¢s ¢L e 3 Se M¡Cz Hlfl Bjl¡ qy¡V a qy¡V a nÈn¡e O¡ Vl ¢c­L k¡Cz E‹m ®g¡­e Lb¡ hm­a¢Rmz I pju B¢j ¢fRe ¢c­L

®b­L E‹­ml O¡­s Q¡L¥ ¢c­u ®fy¡Q j¡¢lz Hlfl n¡¢Lm R¤¢l Q¡m¡u Nm¡uz E‹m f­s ®N­m n¡¢Lm E‹­ml f¡ dl­a h­mz Hlfl

n¡¢Lm E‹­ml j¡b¡ a¡l qy¡V¤l Efl l¡­M, Bl B¢j E‹­ml f¡

d¢l a¡lfl E‹­ml Nm¡ n¡¢Lm ®fy¡Q ¢c­u ®L­V ®g­mz E‹m j¡l¡ k¡uz Bjl¡ a¡l m¡n n£amrÉ¡ ec£ a ®g m ®cC R¤¢lV¡J pM¡ e

®g­m ®cC, E‹­ml ®j¡h¡Cm ¢e­u ih­a¡­ol L¡­R 1500/- V¡L¡ ¢h¢œ² L¢lz” 

On  careful  reading  of  the  confessional  statement

made by the condemned-prisoner Md. Shakil, it appears that

he candidly with unequivocal terms confessed that he along

with  another  condemned-prisoner  Sonjibon  Chandra

Monidas killed the deceased Ujjal Chandra Monidas stating

that, “a¡lfl 3 Se ®O¡l¡ gl¡ L l alNy¡J ®j¢X Lm ®j¡ s ¢N u j¤¢s M¡Cz a¡lfl 3 Se qy¡V­a qy¡V­a nÈn¡­el ¢c­L k¡Cz p”£he Bj¡­L Q¡L¥ Be­a h­m, B¢j Q¡L¥ ¢e­u B¢pz Q¡L¥ Be¡l fl p”£he Bj¡­L j¡l­a h­mz B¢j

iu f¡Cz I pju p”£he Bj¡l q¡a ®b­L R¤¢l ¢e­u E‹­ml O¡­s ­L¡f

­cuz Hlfl p”£h­el q¡a ®b­L R¤¢l ¢e­u B¢j E‹­ml Nm¡u ®fy¡Q ®cCz Hlfl E‹m j¡l¡ k¡uz a¡lfl B¢j E‹­ml q¡a Hhw p”£he E‹­ml f¡

d l ec£ a ®g m ®cCz” It also appears from the confessional

statement  of  condemned-prisoner  Sonjibon  Chandra

Monidas that, he along with Md. Shakil killed the deceased

Ujjal Chandra Monidas and it shows that, they have narrated

the events that took place from the beginning to the end on

the date, time and place of occurrence and related matters.

Their statements are identical to the incident described in the

F.I.R as well as the description of the charges brought by the prosecution  against  them  which  are  fully  corroborated  by other witnesses of the prosecution.

Now, let us assess how far the prosecution has been able  to  prove  the  allegations  in  the  F.I.R.  through  the evidence of the prosecution witnesses. Additionally, we need to determine whether the confessional statements made by the condemned prisoners are corroborated by the evidence of these witnesses.

PW-1, Uttam Chandra Monidas, the informant, stated in his deposition that his brother, Ujjal Chandra Monidas, was missing from 17.11.2016, and on 19.11.2016, he found his brother‟s dead body at Kapasia Police Station. He mentioned that Ujjal left home around 4:00 P.M. on 17.11.2016 but did not return that night. Despite searching various places, Ujjal was not found. He further testified that on 17.11.2016, at approximately 7:30 P.M., while sitting at his saloon at Torgaon Medical Moor, he last saw Ujjal with the accused, Md. Shakil and Sonjibon Chandra Monidas, walking south. However, Ujjal did not return that night, and later, the informant learned that both Shakil and Sonjibon were also not at their respective homes that night. He testified that the Officer-in-Charge arrested Shakil and Sonjibon on 19.11.2016, and they confessed at the police station, in front of the informant and others, to killing Ujjal. They also reiterated their confession during Ujjal‟s cremation, explaining how they killed him and disposed of the body in the Shitalakhya River. He filed the F.I.R. and signed it (marked as Exhibit-1 and 1/1). He also mentioned that Ujjal had a love affair with a girl named Shanta, and when he called her on 19.11.2016, she informed him that she last spoke to Ujjal on 17.11.2016, at around 8:00 P.M., when she suddenly

In his cross-examination on behalf of the accused Sonjibon,  PW-1  stated  that  Ujjal  was  killed  sometime between 17.11.2016 and 19.11.2016. He did not file a General Diary (G.D.) entry regarding Ujjal's disappearance. He did not witness the incident but stated that it was not true that Sonjibon did not confess of killing Ujjal in front of him or the public. He denied that his deposition was false. He also stated that Ujjal worked in a grill workshop.

During cross-examination on behalf of the accused Shakil, PW-1 stated that it was not true that he did not see Shakil with Ujjal or that Shakil did not confess to the murder. He denied any conflict between Shakil and Ujjal.

PW-2,  Sumon,  deposed  that  he  knew  both  the informant and the accused. He stated that when the accused Shakil and Sonjibon were brought to the police station, they confessed of killing Ujjal. In his cross-examination on behalf of Sonjibon, PW-2 stated that he did not see the incident but heard that Sonjibon had a dispute with Ujjal about going abroad. He denied that Sonjibon did not confess. In cross- examination on behalf of Shakil, PW-2 stated that he gave a statement to the police but denied giving false testimony.

PW-3, Shree Shyamol Monidas, testified that he knew the informant and the accused. He identified the accused and stated that they confessed during Ujjal‟s cremation. In his cross-examination  on  behalf  of  Shakil,  he  affirmed  the friendship between Shakil, Sonjibon, and Ujjal but denied that Shakil  did  not  confess  to  the  murder.  In  his  cross- examination  on  behalf  of  Sonjibon,  PW-3  denied  that Sonjibon did not admit guilt.

PW-4, Kumar Bishwajit, testified that he was present at Ujjal‟s cremation, where the accused confessed to the murder in front of the crowd. In cross-examination on behalf of Sonjibon, he denied that the accused did not admit guilt or identify the crime scene. In cross-examination on behalf of Shakil, he denied that Shakil confessed due to police brutality or that his testimony was false.

PW-5,  Biplab  Monidas,  testified  that  the  accused confessed during Ujjal‟s cremation. In cross-examination on behalf  of  both  Shakil  and  Sonjibon,  he  denied  that  the accused did not confess or that his testimony was false.

PW-6, Mithun Monidas, deposed that he identified Ujjal‟s body and witnessed the accused confess during the cremation. In cross-examination on behalf of both Shakil and Sonjibon, he denied that the accused were innocent or that they did not confess.

PW-7, Jhantu Monidas, testified that the police prepared a seizure list in front of him, and during Ujjal‟s cremation, the accused confessed. In cross-examination, he denied that the accused did not admit guilt or that his testimony was false.

PW-8,  Dr.  Pronoy  Bhushan  Das,  testified  that  he performed the autopsy and found a sharp weapon injury on Ujjal‟s neck, which caused his death by excessive bleeding. In cross-examination,  he  confirmed  that  the  body  was decomposed, and no other injuries were found.

PW-9,  Mohammad  Abdul  Hai,  the  Senior  Judicial Magistrate,  testified  that  he  recorded  the  voluntary confessions of Shakil and Sonjibon under Section 164 of the Code of Criminal Procedure. In cross-examination, he denied that the confessions were made due to police torture or that he failed to record the statements properly.

PW-10, Md. Rakib Hossain, testified that he saw the accused at Kapasia Bus Stand attempting to sell a mobile phone. In cross-examination, he stated that he was unaware of any incident related to the case.

PW-11, Sumanta Das, deposed that he saw Ujjal‟s body and that the accused confessed during the cremation. In cross-examination, he denied giving false testimony.

PW-12, Pintu Chandra Das, deposed that he signed the inquest report and saw Ujjal‟s body at the pier. In cross- examination, he denied giving false testimony.

PW-13, Md. Nuruzzaman, stated that he signed the inquest  report  but  did  not  know  the  informant  or  the accused.

PW-14, Mamun, testified that he signed the inquest report and seizure list after seeing Ujjal‟s body.

PW-15, Md. Tariq Khan, testified that he signed the seizure  list  related  to  the  deceased‟s  clothing  but  did  not know about the incident.

PW-16,  Moniruzzaman  Khan,  the  second investigating officer, testified that he submitted the charge sheet after finding prima facie evidence against the accused. In  cross-examination,  he  stated  that  there  were  disputes between the accused and Ujjal but denied any flaws in his investigation.

On the other hand, DW-1, Md. Nure Alam, testified on behalf of the accused, Shakil. He stated that he did not know the details of the case but did not believe Shakil could commit murder. He acknowledged that he did not know the date of the incident, though he saw Ujjal‟s dead body. He also mentioned that Shakil was his paternal cousin and, being an adult, Shakil's whereabouts and actions were beyond his

knowledge.  He  admitted  that  parts  of  his  testimony  were based on assumptions but denied giving false testimony on behalf of his cousin.

DW-2, Md. Mosharraf Hossain, also testified for the accused Shakil. He knew the informant and described Shakil as a good person but was unaware of the events related to the case. He stated that Shakil was not involved in the murder. In cross-examination, he confirmed that Shakil was his nephew and that he saw Ujjal‟s body. He denied spending time with Shakil regularly and refuted the suggestion that he gave false testimony.

Thus,  the  evidence  presented  by  the  prosecution witnesses aims to establish the charges against the accused, Md. Shakil and Sonjibon Chandra Monidas, while the defense provided  evidence  on  behalf  of  condemned  prisoner  Md. Shakil for his defense.

It appears that PW-1, the informant, in both his examination-in-chief and cross-examination, supported the prosecution‟s version. PW-3 to PW-7 and PW-11, in their respective depositions, stated that at Ujjal Chandra Monidas‟s cremation, the police brought both accused to the cremation ground, where they confessed in the presence of thousands of people that they had killed Ujjal. PW-8, the Doctor (RMO), who conducted the post-mortem, gave the opinion that "death was due to shock and hemorrhage resulting from the above-mentioned injuries, which were antemortem and homicidal in nature." The injuries found by PW-8 supported the F.I.R. case.

PW-9, the Magistrate who recorded the statements of both condemned prisoners under Section 164 of the Code of Criminal  Procedure,  testified  that  their  statements  were voluntary, true, and revealed the true facts. He confirmed that

the  accused  were  properly  and  lawfully  informed  of  the

implications  of  their  confessions,  including  that  no  police

were present, they would not be returned to police custody,

they were not obligated to confess, and that their confession

could be used against them. He also mentioned that each

accused was given over three hours before their respective

statements were recorded and that neither had been taken on

remand.

It appears from the statement of 164 of the Code of

Criminal Procedure that, the learned Magistrate noted that, “¯^xKv‡ivw³ cÖ`vbKv‡j Avmvg^x Zvi cÖwZ †Kvb Rei wÙ¹ ev cxo‡bi Awf‡hvM K‡iwb| Zvi kix‡i RL‡gi ‡Kvb wPý wQjbv| Avgvi we‡ePbvq Zvi ¯^xKv‡ivw³ m¤úyY© †¯^”QvcÖ‡bvw`Z|” PW 12 and 13 are signatories of

the inquest report, while PW 14 and 15 are witnesses who

signed  the  seizure  list.  PW-16,  the  Investigating  Officer,

completed the investigation and submitted the charge sheet,

concluding that the evidence supported the allegations of the murder of Ujjal Chandra Monidas by the accused, Md. Shakil and  Sonjibon  Chandra  Monidas,  along  with  another individual. All witnesses provided their respective testimonies, proving  their  evidence  through  examination  and  cross- examination before the trial court.

Admittedly, there were no eyewitnesses to the murder of Ujjal. The prosecution largely relied on the confessions of both condemned prisoners and the recovery of incriminating articles  at  their  instance  to  establish  the  charges.  PW-1 testified  that  he  last  saw  his  brother  at  Targaon  Upazila Health  Complex  Moor,  Kapasia,  with  the  condemned prisoners,  Shakil  and  Sonjibon,  at  about  7:00  P.M.  on 17.11.2016, the day Ujjal went missing. On 19.11.2016, the police recovered Ujjal‟s abandoned body from the riverbank of Shitalakhya. PW-3, a seizure list witness, testified about the

recovery of a knife from beneath 15 feet of water near the cremation site in Tragaon, based on information provided by condemned prisoner Shakil (Exhibit 2 and 2/1). The missing mobile phone of the deceased was recovered from co- accused Bhobotosh, as per information from Shakil (seizure list „Kha‟), who stated that the phone had been sold to Bhobotosh (Confessional statements of Shakil and Sonjibon). This evidence was corroborated by PW-7 (Exhibit 3) and PW-16, the Investigating Officer. PW-4 testified that during Ujjal‟s cremation, the police brought the condemned prisoners to the crime scene, where blood-stained mud was found. These facts of discovery and recovery are strong and sufficient evidence of the prisoners' involvement in Ujjal's murder.

Regarding  the  witnesses,  they  are  natural  and competent,  and  their  testimonies  are  corroborated  by  the Senior  Judicial  Magistrate,  PW-9,  and  the  Investigating Officer, PW-16. There is no reasonable basis to doubt their evidence. The recovery of incriminating articles shortly after the  incident  would  lead  a  prudent  person  to  infer  their involvement in the crime.

A  plain  reading  of  the  confessional  statements  of Shakil  and  Sonjibon  clearly  shows  that  they  implicated themselves and each other in the murder of Ujjal Chandra Monidas due to minor conflicts. Their confessions appear to be spontaneous, true, voluntary, and inculpatory in nature.

It has been established by our Apex Court, as well as by the High Court Division, in a series of decisions that a confessional statement can serve as the basis for imposing punishment on its maker, provided the confession is true and voluntary in nature. In this regard, Mr. Bashir Ahmed, the learned Deputy Attorney General for the State, referred to the decision in Aziz @ Azizul @ Azid and others Vs. State, reported in 73 DLR (AD) 365, where their Lordships held that,

 “When the voluntary character of the confession and truth are accepted it is safe to relay on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. A confession may form the legal basis of conviction if the court is satisfied that it was true and was voluntary made.”

And also referred a decision in the case of Khalil Mia In 4 BLC (AD) 223, wherein, their lordship‟s held to the effect that;

“After  the  confession  the  condemned-prisoner  was  sent  to Munshiganj Sub-Jail. The confession was specially brought to the notice of the condemned-prisoner while examining him under section 342 of the Code of Criminal Procedure; but he did not complain anything regarding the nature of his confession. Both the trial Court and the High Court Division therefore rightly believed the confession to be true and voluntary.”

In light of the discussions made hereinabove and the case laws cited by the learned Advocates representing the parties, this Court is of the opinion that the prosecution has successfully  proven  the  charges  against  the  condemned prisoners, Md. Shakil and Sonjibon Chandra Moni Das, for the murder of Ujjal under Section 302 of the Penal Code, beyond all reasonable doubt. Therefore, the trial court rightly passed the judgment and order of conviction and sentence dated 31.10.2017, delivered by the learned Sessions Judge, Gazipur, in Session Case No. 1219 of 2017, arising from Kapasia Police Station Case No. 14 (11) 16, dated 19.11.2016, corresponding to G.R. No. 241 of 2016. The appellants were convicted  under  Sections  302/34  of  the  Penal  Code  and sentenced  to  death  with  a  fine  of  Tk.10,000.00  each. Additionally, they were convicted under Sections 201/34 of the  Penal  Code  and  sentenced  to  five  years  of  rigorous imprisonment with a fine of Tk. 2,000.00, with an additional month of rigorous imprisonment in default. This Court finds no reason to interfere with this judgment.

As a result, the Death Reference No. 145 of 2017 is accepted.

The judgment and order of conviction and sentence dated  31.10.2017  passed  by  the  learned  Sessions  Judge, Gazipur in Session Case No. 1219 of 2017 arising out of Kapasia Police Station Case No. 14 (11) 16 dated 19.11.2016 corresponding  to  G.R.  No.  241  of  2016  and  the  death sentence  as  awarded  to  the  condemned-prisoners  namely Md. Shakil  and Sonjibon Chandra Monidas are hereby upheld and confirmed.

The  Criminal  Appeal  Nos.  14436  of  2017  and Criminal Appeal No. 13436 of 2017 including the Jail Appeal Nos. 472 of 2017 and Jail Appeal No. 473 of 2017 are hereby dismissed.

          Send down the Lower Court Records (LCR) along with a copy of this judgment to the concerned Court below forthwith.

Md. Kamrul Hossain Mollah, J.

I agree.

Syed Akramuzzaman Bench Officer