Present:

Justice Shahidul Karim

and

Justice Fatema Najib

      Death Reference No.04 of 2016

with

      Criminal Appeal No.657 of 2016. With

      Jail Appeal No.05 of 2016.

with

      Jail Appeal No.06 of 2016

with

Jail Appeal No.07 of 2016

      The State.

                                    ....………….. Petitioner.

 -Versus-

  Md. Mostafa and another

                         ....……. Condemned-Prisoners.

Mr. Bashir Ahmed, D.A.G with

Mr. Nirmal Kumar Das, A.A.G. with

           Mrs. Syeda Shobnum Mustary, A.A.G with

          Mr. Md. Tariqul Islam (Hira), A.A.G.

    ……. For the State.

Mr. Md. Hafizur Rahman Khan, Advocate

....... For the State Defence Lawyer

Heard on 13-03-2022, 03-04-2022, 07- 04-2022, 10-04-2022, 24-04-2022, 26-07- 2022 and Judgment on 01-09-2022.

Shahidul Karim, J.

The condemned accused were put on trial to answer charges under sections 302/34 of the Penal Code before the learned Sessions Judge, Gazipur. By the impugned judgment and order dated 20-01- 2016,  the  learned  Judge  of  the  Court  below  found  condemned

accused Md. Mostafa and Anowara Begum guilty under sections 302/34 of the Penal Code for causing murder of victim Suruj Ali and  sentenced  them  thereunder  to  death  along  with  a  fine  of Tk.10,000/- each and also convicted accused Md. Rahmat Ali under the  aforesaid  sections  of  law  and  sentenced  him  to  suffer imprisonment for life along with a fine of Tk. 10,000/- with default clause. By the self-same judgment, the aforesaid 3(three) accused including  accused  Rahima  Begum  were  also  found guilty  under section 302/34 of the Penal Code for causing the death of victim Hanufa Begum and convicted and sentenced accused Md. Mostafa and Anowara Begum to death along with fine, while co-accused Md. Rahmat Ali @ Romu and Rahima Begum were sentenced to imprisonment  for  life  along  with  a  fine  of  Tk.10,000/-  each  in Sessions Case No. 617 of 2013, arising out of Kapasia P.S. Case No. 6 dated 14-11-2011, corresponding to G.R. No. 226 of 2011. Against  the  aforesaid  judgment  and  order  of  conviction  and sentence, condemned accused Md. Rahmat Ali, Md. Mostafa and Anowara Begum filed Jail Appeal Nos. 5/2016, 6/2016 and 7/2016 followed by a regular Criminal Appeal being No. 657 of 2016.

Since the death reference and the connected Criminal as well as  Jail  Appeals  arose  out  of  the  same  judgment  and  order  of

conviction  and  sentence, they  have been  heard together and are being disposed of by this single judgment.

The prosecution case originated from an infernal incident in which victim Suruj Ali and his spouse Honufa were brutally done to death by inflicting indiscriminating blows by sharp cutting weapon.

The prosecution case finds its initiation from the FIR lodged by  P.W.1  Md.  Shahjahan  Sheikh,  the  elder  uterine  brother  of deceased victim Suruj Ali. On 14-11-2011 at 6.20 pm P.W.1 Md. Shahjahan  Sheikh  being  informant   lodged  the  FIR  against  the condemned accused including 4(four) others alleging, inter alia, that he reared up deceased victim Md. Suruj Ali (42) after the death of his mother. The bondage between the 2(two) brothers was highly deep. There had been a long standing dispute as well as enmity between  deceased  victim  Suruj  Ali  and  the  accused  over  some landed property including other family issues. The accused persons forcibly took possession of the landed property of deceased victim Suruj  Ali  following  which  the  latter  including  his  father  raised protest, whereupon the accused persons threatened him with dire consequences.  On  the  date  of  occurrence  i.e.  on  13-11-2011  at around  2.30  pm  deceased  victim  Md.  Suruj  Ali  went  to  his Mahogany garden located to the eastern side of his homestead and started weeding out branches of trees while the FIR named accused persons being armed with dao, crowbar, spear etc. trespassed into the Mahogany garden and put hindrance to the work of the deceased victim following which he raised voice as a result an altercation broke out between the parties. At one stage, accused Md. Rahmat Ali alias Ramu struck twice with dao on the right and left shoulder of victim Suruj Ali causing serious bleeding injuries, while accused Md. Mostafa chopped on the left side of the chest of the deceased below the left hand causing bleeding injury following which he fell down to the ground raising alarm, whereupon accused Anowara Begum dealt a spear blow on the back side of victim Suruj Ali causing serious bleeding injury. Having sustained serious bleeding injury, the deceased victim tried to save his soul by going away staggeringly from the accused upto 2(two) yards towards the west and then fell down on the ground unconsciously. Upon seeing the incident, local inhabitant Khadiza and Sumi Akhter (P.W.3), the daughter  of  deceased  Suruj  Ali  informed  the  matter  to  Honufa Begum, wife of Suruj Ali, whereupon she rushed to the spot in a bid to  save  her  husband  while  accused  Md.  Rahmat  Ali,  Anowara Begum, Rahima Begum and Mostafa struck her indiscriminately with dao on different parts of her body in order to kill her causing serious bleeding injury as a result Honufa fell to the ground. Having

After lodgment of the case, police  of the relevant Police Station took up investigation of the same during which condemned accused  Md.  Mostafa  and  Anowara  Begum  made  confessional statement implicating themselves including others with the incident of killing of both the victims. However, having found prima-facie incriminating  materials,  the  Investigating  Officer  (P.W.21) submitted  police  report  against  the  accused  under  sections 447/302//34 of the Penal Code.

At the commencement of trial, charge was framed against the 4(four) accused under sections 302/34 of the Penal Code and the charge so framed was read over and explained to them while the accused present on dock pleaded not guilty and claimed to be tried as per law.

In a bid to prove the charge, the prosecution had examined 21 witnesses out of 33 witnesses cited in the charge sheet who were aptly cross-examined by the defence.

After closure of the prosecution witnesses, the accused were called upon to enter into their defence while they repeated their innocence  and  also  declined  to  adduce  any  evidence  in  their defence.

The defence case, that could be gathered from the trend of cross-examination  of  the  prosecution  witnesses,  is  of  complete innocence and false implication. The further case of the defence is that there was a long standing dispute between deceased Suruj Ali and  the  accused  over  some  landed  property  and on  the  date of occurrence accused Suruj Ali suddenly launched attack upon the accused who in self-defence made a counter attack following which a  melee  occurred as  a  result victim  Suruj  Ali  and  Hanufa died having sustained injuries.

Thereupon, the learned Sessions Judge, upon taking hearing from both sides and on an appraisal of the evidences and materials on record, came to the conclusion that the prosecution had been able to bring the charge to the door of the condemned accused to a nicety and accordingly convicted and sentenced them by the impugned judgment and order in the manner as noted at the incept.

Feeling  aggrieved  thereby,  the  condemned-accused  have preferred the instant Jail as well as Criminal Appeal. As we have already noticed, that the learned Judge of the court below has also transmitted the entire proceedings of the case for confirmation of the death sentence awarded to accused Md. Mostafa and Anowara.

Mr.  Bashir  Ahmed,  the  learned  Deputy  Attorney  General along  with  Ms.  Syeda  Shobnum  Mustary,  the  learned  Assistant Attorney General appearing on behalf of the State and in support of the death reference having taken us through the FIR, charge-sheet, charge, post-mortem examination reports of the 2(two) deceased victims,  evidences  of  witnesses,  confessional  statement  of  the 2(two)  condemned  accused,  impugned  judgment  and  order  of conviction and sentence and other connected materials available in the  paper  book  and  then  submits  with  vehemence  that  the prosecution has successfully been able to prove the charge levelled against the accused by adducing some impeccable , indubitable, cogent and trustworthy evidences. He next submits that P.W.3 is the only eye witness of the occurrence who gave a detailed account of the incident since the same took place before her very eyes and her evidence remained unshaken in cross-examination as such there is no harm in relaying upon her evidence. Mr. Ahmed further submits that the condemned accused were the aggressors who came to the place of occurrence with deadly  weapons and launched an attack upon deceased victim Suruj Ali and while his wife, Honufa who came to rescue her husband the accused persons also assaulted her indiscriminately following which Suruj Ali died on the spot and his wife Honufa succumbed to her injuries while she was being treated at  Dhaka  Medical  College  Hospital.  Moreover,  deceased  victim Honufa  while  being  treated  made  dying  declaration  naming  the accused to be the perpetrators of the killing incident of her husband including herself which fact has successfully been proved by the

Having  repelled  the  aforesaid  submissions,  Mr.  Hafizur Rahman Khan, the learned State Defence Advocate has assailed the impugned  judgment  and  order  critically  submitting  that  the prosecution  has  not  successfully  been  able  to  prove  the  charge mounted  against  the  accused  to  the  core  by  adducing  some impeccable and convincing evidence. He has tried to impeach the veracity of the impugned judgment and order of conviction and sentence on the following scores;

1.    that the FIR was filed after a delay of more than 15 hours as such the possibility of false implication cannot be ruled out;
2.    that  the  FIR  named  witness  Khadiza  was  not  made witness in the police report and she was also not examined during trial which has made the prosecution story doubtful and shaky;
3.    that the charge sheet named witness Abdul Quddus, the father of victim Suruj Ali has also not been examined in

the case which has rendered the prosecution case shaky as well;

4.    that the confessions of accused Mostafa and Anowara are not voluntary and true since they were kept under police custody for 5 (five) days preceding their confessions; and
5.    that P.W.7, P.W.10 and P.W.14 are interested witnesses being relatives of the victims and as such their evidences inspire no confidence.

Heard  the  learned  Advocates  of  both  sides,  perused  the impugned judgment and order of conviction and sentence including the evidences on record and also considered the surrounding facts and circumstances of the case minutely.

With a view to arriving at a correct decision in the death reference and the connected Criminal as well as Jail Appeals, we are now  called  upon  to  sift  and  scrutinize  the  relevant  evidences together with the attending and surrounding facts and circumstances of the case by juxtaposing the defence version of the story.

P.W.1 Md. Shahjahan Sheikh is the informant as well as the elder  uterine  brother  of  the deceased victim  Suruj  Miah.  In  his testimony this witness claims that the occurrence took place in the afternoon  of  13-11-2011  at  around  2.30  pm  and  the  place  of occurrence is located towards the eastern side of the residence of deceased victim Suruj Miah. On the date of occurrence at around 3.00 pm, upon being informed over mobile phone made by Sumi (P.W.3), the daughter of deceased victim Suruj Miah he (P.W.1) came to spot running and saw the dead body of his brother Suruj with marks of injuries on his right shoulder and back side caused by sharp cutting weapon as well as by crowbar. He (P.W.1) also found marks  of  injuries  on  the  left  abdomen,  left  shoulder  and  right dorsum  of his sister-in-law  Hanufa. Later,  Hanufa was taken to Kapashia  Sadar  Hospital  wherefrom  she  was  referred  to  Dhaka Medical College Hospital wherein she died. He (P.W.1) came to learn that accused Rahmat Ali alias Ramu struck Dao ( blows on the  right  and  left  shoulder  of  deceased  victim  Suruj  Miah  and accused  Anowara  gave  a  crowbar  blow  on  his  back.  Moreover, Rahima and Mostofa, son and daughter of accused Rahmat Ali also caused injury to decased victim Suruj Miah following which he died at the spot. Furthermore, accused Mostofa caused injury to deceased victim Hanufa on her abdomen as well as on both dorsum. The other accused persons also caused injury to deceased victim Hanufa. He (P.W.1) then brought the matter to the notice of the local police whereupon police appeared at the spot and took away the dead body.  Later,  he  went  to  the  police  station  and  lodged  the  FIR

In  reply  to  cross-examination  P.W.1  states  that  he  and deceased victim Suruj are the sons of identical mother but their fathers are different. His homestead located is 700/800 yards away from that of victim Suruj Miah. The place of occurrence is situated 850  yards  off  from  his  residence  which  is  also  50  yards  away towards the western side of the homestead of deceased victim Suruj Miah.  The  homestead  and  garden  of  deceased  victim  Suruj  are located nearby the place of occurrence. The residence of the accused is located adjacent to the boundary of deceased victim Suruj Miah. Upon reaching the spot, he (P.W.1) did not see the accused there. He lodged the FIR as per account given by the eye witnesses. He came to learn about the incident from the father and daughter of deceased victim Suruj Miah, namely, Kuddus and Sumi (P.W.3). Apart from that Jhorna Begum (P.W.4), Faizuddin and others also gave account of the incident. At first, accused Suruj was injured and while his wife Hanufa came to the spot on hearing alarm of her husband she was also beaten up. Police appeared at the spot at around 4.00 pm. After 10/15 minutes of his (P.W.1) arrival at the spot, victim Hanufa was taken to Kapashia Hospital both by van and ambulance. P.W.1 denied the defence suggestions that the accused did not cause injury to deceased victim Suruj and Hanufa or that he deposed falsely.    

In his testimony P.W.2 Abdur Rouf Rubel states that both the informant and accused are known to him. The occurrence took place on 13-11-2011. On the date of occurrence at around 2.00 pm, after his arrival at home, upon hearing alarm he went to the spot running and  found  that  deceased  victim  Suruj  Ali  was  lying  down  in bleeding  condition.  He  also  found  Hanufa  in  injured  condition beside her husband Suruj Ali. Many people came to the spot. He (P.W.2) found several marks of injuries on the person of deceased victim Suruj and Hanufa. Hanufa was sent to hospital for treatment and deceased victim Suruj died at the spot. Later, Hanufa died while he  was  being  taken  to  Dhaka  Medical  College  Hospital  from Kapashia Sadar Hospital.

In reply to cross-examination P.W.2 says that the homestead of the accused is located within 100 yards from that of deceased victim Suruj Miah. After going to the spot, he found Suruj Miah dead and also found Hanufa in injured condition. He did not see the accused at the spot and also did not witness the occurrence. There was  disputed  between  the  accused  and  victim  Suruj  over  some landed property. The accused persons flee from the spot as such he could not see whether they had sustained any injury or not. He could not say whether victim Suruj Miah and Hanufa sustained injury at the hand of the accused or not since he did not see them (accused) at the spot. But he heard that the accused fled away from the spot after committing the occurrence. P.W.2 denied the defence suggestion that he deposed falsely against the accused as he had dispute with the accused centering round a goat.

P.W.3 Mst. Sumi Akhter is the daughter of both deceased victim Suruj Miah and Hanufa. In her testimony this witness gives out that there was a long standing dispute between them (P.W.3) and the accused. There is a Mahogany orchard beside their house and her father used to frequent there. In the afternoon of 13-11-2013 at around 2.00 pm, her father went to the said orchard while he had altercation with the accused. At the relevant time she (P.W.3) along with her mother were tending the trees on the other side of the garden. While her father was nursing the garden, accused Rahmat Ali dealt Dao blows on his right and left shoulder while accused Mostofa struck him with a Dao at his armpit following his her father raised  alarm  and  came  near  to  her  mother.  Being  scared,  she (P.W.3) went to the nearby homestead while her mother had gone to her father whereupon he fell down. At the relevant time, accused Anowara dealt a crowbar blow on the back of her father. While her mother  tried  to  rescue  her  father,  accused  Rahmant,  Mostofa, Anowara  and  Rahima  struck  her  with  Dao,  crowbar  and  other weapon on her shoulder, abdomen and dorsum. She (P.W.3) tried to save her parents by raising alarm but failed. Her father raised alarm uttering but she was unable to give him water as a result he died at the spot. The local people came to the spot while the accused flee therefrom. Her mother was taken to Kapashia Hospital wherefrom she was referred to Dhaka Medical College Hospital wherein she succumbed to her injuries. Later, she brought the matter to  the  notice  of  her  uncle  (informant).  This  witness  identified accused Rahmant, Mostofa and Anowara in the dock.    

In  reply  to  cross-examination  done  by  accused  Rahmat, Mostofa and Anowara P.W.3 says that their homestead and that of the accused are located by the side of the same road and in between the both there are 5/7 houses. Their (P.W.3) Mahogany orchard is at a distance of 4/5 houses from their homestead. They went to the garden  after  Jahur  prayer.  At  the  time  of  occurrence,  she  was present at the occurrence garden. At first, her father went to the garden and then her mother and following them she also went there. She  did  not  try  to  rescue  her  father  and  mother,  rather  being frightened she went to a far away and raised alarm. Upon seeing the occurrence she became speechless. Subsequently, she raised hue and  cry.  Having  heard  screaming  of her  father  and  mother,  the neighbouring people came to the spot. The neighbouring people like Rouf, Tajuddin, Shafiqul, Jhorna (P.W.4), Lialy (P.W.8), Khadeza and others came to the spot. Sensing the imminent death of her father, the accused flee the spot. She did not go to her residence immediately  after  the  occurrence  and  further  that  she  asked  to inform the matter to her uncle (informant).

In reply to cross-examination done on behalf of absconding accused Rahima P.W.3 says that in the afternoon of the date of occurrence  a  pre-arranged  meeting  was  scheduled  to  be  held between  her  father  and  the  accused.  P.W.3  denied  the  defence suggestion that accused Rahima did not strike her father and mother or that she deposed falsely. 

In  her  deposition  P.W.4  Jhorna  Begum  divulges  that  the informant, accused and deceased Suruj and Hanufa are known to her. The occurrence  came to  pass 4(four) years  ago after Jahur prayer and the place of occurrence is located a little far away from her homestead. After coming to the spot, she found victim Suruj dead  and  Hanufa  was  being  taken  to  hospital.  P.W.4  identified accused Rahmat, Mostofa and Anowara in the dock.

In reply to cross-examination P.W.4 states that the homestead of deceased Suruj is located 7/8 houses away from the spot. She did not witness the incident.

In his evidence P.W.5 Md. Ramiz Uddin discloses that the informant,  accused  and  deceased  victim  Suruj  and  Hanufa  are known to him. About 4(four) years ago at around 2.30 pm, the occurrence took place 7 to 8 houses away from the homestead of victim Suruj Miah. He came out of the mosque after offering Jahur prayer and returned back home. Deceased Suruj Miah also went to the mosque for offering salat. After finishing lunch, he (P.W.5) came to learn that the accused persons killed victim Suruj Miah, whereupon he went to the spot and found deceased Suruj Miah’s father, daughter Sumi and others present there. Sumi was weeping.

He  found  victim  Suruj  dead  and  Hanufa  in  standing  position. Hanufa was then taken to hospital.

In reply to cross-examination P.W.5 says that the place of occurrence is located at a distance of 6/7 houses from that of his homestead.  He  came  to  learn  from  people  saying  that  accused Rahmat and others killed victim Suruj. He could not say as to which accused  dealt  which  blow  to  the  victim.  He  (P.W.5)  had  no conversation with victim Hanufa at the spot. He found the dead body of deceased victim Suruj lying down a far away from the homestead of accused Rahmat.

P.W.6 Dr. Liyakot Ali Khan is a member of the medical board which, on 14-11-2011at around 01.55 pm, carried out post-mortem examination of the cadaver of deceased victim Suruj Miah at the identification of Constable No.464 Joyahed. The other members of the medical board were Dr. Moniruzzaman and Dr. Hafiz Uddin. After post-mortem examination, they found following injuries on the person of the deceased victim:

1.   One incised injury over right shoulder 6"x4"x cutting skin,

Muscles, vessels, nerves and bone;

2. One incised injury over right arm 4"x2"x bone depth;
3. One incised injury over right auxilla 5"x2"x bone depth;

4.    One incised injury of over left shoulder 4"x2"x cutting

skin, muscles bone; and

5. One incised injury over back of chest 5"x4"x bone depth.   According to their opinion, death was due to hemorrhage and

shock  resulting  from  above  mentioned  injuries  which was  ante- mortem and homicidal in nature. P.W.6 proves the post-mortem examination report including their signatures appearing thereon as Exhibit Nos.5 and 5 series respectively.

In reply to cross-examination done by the accused P.W.6 says that they carried out post-mortem examination within 24-48 hours of the death of deceased victim Suruj Ali as per identification of the Constable. P.W.6 denied the defence suggestions that there was no injury on the person of the deceased victim or that he deposed falsely.

In her evidence P.W.7 Razia says that both the informant and accused are known to her. The occurrence took place on 13-11-2011 at around 2.30 pm. She and deceased Suruj Ali are residents of the same homestead. Having heard that Suruj Miah was killed she went to the spot running. After reaching the spot, she found Suruj Miah dead with several marks of injuries on his person. All the 4(four) accused struck Suruj Ali with Dao. She (P.W.7) also found various marks of injuries on the person of Hanufa whose right hand was almost separated from body. Accused Rahmat Ali, Mostofa, Rahima and Anowara caused injuries to the victim, and thereafter, they fled the spot running. Victim Suruj Ali and Hanufa were then taken to the hospital. Hanufa was in her sense who told her (P.W.7) that accused Rahmat Ali, Mostofa, Anowara and Rahima caused injuries to them. At first, Hanufa was taken to Kapashia hospital wherefrom she was shifted to Dhaka Medical College Hospital. Victim Suruj Ali died at the spot, while Hanufa succumbed to her injuries at the hospital.  She  (P.W.7)  accompanied  Hanufa  on  her  way  to  the hospital.  At  her  dying  moment,  deceased  Hanufa  disclosed  the matter to her (P.W.7). P.W.7 identified accused Rahmat, Mostofa and Anowara in the dock.

In reply to cross-examination P.W.7 states that deceased Suruj Ali is her brother-in-laws son ( . The place of occurrence is located inside the residence. She found Suruj Ali lying down under  a  Jujubib  Boroi  tree  ( .  She  did  not  witness  the occurrence, rather she came to the spot after about 2/3 minutes of the occurrence. She found Hanufa’s daughter at the spot but did not find the accused present there. She found Hanufa in sitting position with  marks  of  injuries  on  her  person.  She  took  Hanufa  to  the hospital firstly by the van of one Mannan and then by a CNG, but the hospital authority did not keep her there. Subsequently, Hanufa was  taken  to  Dhaka  Medical  College  Hospital  wherein  she succumbed to her injuries on the following day of her admission. P.W.7 denied the defence suggestion that she deposed falsely.

In her evidence P.W.8 Laily says that the occurrence took place on 13-11-2011 after Jahur prayer. Victim Suruj and his wife Hanufa  were  killed.  Victim  Suruj  died  on  his  own  land,  while Hanufa  died  on  the  following  day.  She  heard  that  the  accused persons killed victim Suruj and Hanufa. P.W.8 identified accused Rahmat, Mostofa and Anowara in the dock.

In reply to cross-examination P.W.8 states that deceased Suruj and Hanufa are her relatives. On the date of occurrence she was at her paternal  house which  is  situated  on  a  different  village.  Her

paternal house is about mile away from the spot. After coming to the spot,  she found  many  people present there,  but  the accused person fled away. She found the dead body of victim Suruj which was  lying  on  the  road  near  the  landed  property.  Everyone  was talking that the accused persons killed deceased Suruj and his wife. P.W.8 denied the defence suggestion that she deposed falsely.

        In  her  testimony  P.W.9  Mst.  Ferdousi  avers  that  the occurrence  came  into  being  on  13-11-2011  at  around  2.30  pm. Deceased Suruj was killed and Hanufa died subsequently at the hospital. He heard that the accused persons caused injury to victim Suruj  and  Hanufa  following  which  they  died.  P.W.9  identified accused Rahmat, Mostofa and Anowara in the dock.

In reply to cross-examination P.W.9 states that victim Suruj and  Hanufa  are  not  her  relatives.  After  a  long  interval  of  the incident, she went to the spot. P.W.9 denied the defence suggestion that she deposed falsely.

In her testimony P.W.10 Ruma Akhter divulges that both the informant and accused are known to her. The occurrence passed off on  13-11-2011  at  noon.  She  found  victim  Suruj  dead  and  his daughter Sumi was weeping upon holding the blood-smeared body of her father. At that time Sumi disclosed that accused Rahmat, Mostofa,  Anowara  and  Rahima  killed  her  parents.  Thereafter, Hanufa  was  sent  to  hospital  by  car  and  she  (P.W.10)  also accompanied her. Later, Hanufa succumbed to her injuries. Hanufa disclosed to her (10) while she was being taken to the hospital who that the above 4(four) accused persons killed her and her husband with Dao, crowbar, etc. P.W.10 identified accused Rahmat, Mostofa and Anowara in the dock.

In  reply  to  cross-examination  P.W.10  says  that  deceased victim Suruj is her brother-in-law ( ). She witnessed the  incident while she was going along the place of occurrence. After her arrival at the spot, many people thronged there. P.W.10 denied the defence suggestions that she did not see Sumi at the spot or that deceased Hanuf disclosed nothing to her or that she deposed falsely since the deceased were her relatives.

P.W.11 Sharaf Uddin Ahmed is the concerned Magistrate who got down the confession of accused Md. Mostofa and Anowara Begum. In his evidence this witness  asserts  that on  27-11-2011 while being posted in Gazipur as Judicial Magistrate, he penned down  the  confessional  statement  of  accused  Md.  Mostofa  and Anowara Begum after complying with all legal formalities. This witness  further  states  that  the  confessions  of  the  accused  are voluntary and true. P.W.11 proves the confessional statement of accused Md. Mostofa and Anowara Begum including his signatures appearing thereon as Exhibit Nos.6 & 6 series and 7 & 7 series respectively.

In reply to cross-examination P.W.11 states that S.I. Sanowar Jahan produced both accused Mostofa and Anowara before him at around 2.00 pm, whereupon he examined them. No police personnel was present at the time of recording the confessional statements of the accused which were jotted down after affording 3(three) hours time  to  the  accused  for  reflection.  P.W.11  denied  the  defence suggestions that the confessions of the accused are not voluntary, rather those were extracted by torture or that there was injury mark on the person of the accused or that he did not record the confession after observing all legal formalities.

In his deposition P.W.12 Md. Osman Sarker asserts that both the informant and accused are known to him and he also knew deceased  Suruj  who  died  at  the  spot  while  his  wife  Hanufa succumbed to her injuries at the hospital. The occurrence took place on 13-11-2011 at around 2.30 pm. He (P.W.12) found the dead body of deceased victim Suruj at the spot and injured Hanuf was taken to the hospital. Being asked, deceased Suruj’s daughter Sumi disclosed that  accused  Rahmat,  Mostofa,  Anowara  and  Rahima  caused injuries  to  her  parents.  The  accused  persons  flee the spot.  This witness  proves  his  signature  appearing  on  the  inquest-report  of deceased  Suruj  as  Exhibit  No.4/2.  P.W.12  identified  accused Rahmat alias Ramu, Mostofa and Anowara in the dock.

In reply to cross-examination P.W.12 states that he did not witness the incident. His residence is about 1(one) kilometer off towards north of the place of occurrence. He arrived at the spot at around 2.45 pm while he found the dead body of Suruj near the Mahogany orchard as well as the residence of accused Rahmat. Many people thronged at the spot. He did not see the accused flee from  the  spot.  P.W.12  denied  the  defence  suggestion  that  he deposed falsely as deceased Suruj was closely related to him.

In his testimony P.W.13 Md. Kawsar Kibria divulges that the informant and accused are known to him. The occurrence came into being on 13-11-2013 (most probably 13-11-2011). He saw the dead body of deceased Suruj and thereafter put his signature (Exhibit No.4/3)  to  the  relevant  inquest  report.  This  witness  identified accused Rahmat, Anowara and Mostofa in the dock.

In  reply  to  cross-examination  P.W.13  states  that  he  found deceased  Suruj  on  the  front  side  road  of  the  house  of  accused Rahmat.  P.W.13  denied  the  defence  suggestion  that  he  deposed falsely.

In his evidence P.W.14 Md. Abdul Halim states that both the informant and accused are known to him. The occurrence took place on 13-11-2011 at around 2.30 pm at the garden of deceased Suruj near the house of accused Rahmat alias Ramu. Victim Hanufa is his mother-in-law His  father-in-law  informed  him  over phone about the incident, whereupon he went to Dhaka Medical College  Hospital  on  14-11-2011  at  around  12’O  clock  from Shafipur, Kaliyakoir. At that time, victim Hanufa caught hold of his hand and said victim Hanufa also asked for drinking water following which he gave her grapes as well as water. Victim Hanufa also disclosed to him that accused Rahmat, Mostofa, Anowara and Rahima caused injuries to her and her husband.

P.W.14 further states that the right hand of victim Hanufa was almost  separated,  right  dorsum  sustained  grievous  injury  and  a crowbar had pierced the middle part of her body. In his presence victim Hanufa succumbed to her injuries at around 1.30 pm. The inquest of the cadaver of victim Hanufa was held in his presence. P.W.14  proves  the  inquest  report  and  his  signature  appearing thereon as Exhibit Nos.8 and 8/1 respectively. This witness also identified accused Rahmat alias Ramu, Mostofa and Anowara in the dock.

In reply to cross-examination P.W.14 says that he received telephone call in the afternoon of 13-11-2011 at around 3.30 pm while victim Hanufa was at Kapashia Hospital. On the following morning,  he  (P.W.14)  made  phone  call  to  his  father-in-law  and came to learn that victim Hanufa was transferred to Dhaka Medical College Hospital, whereupon he went to the said hospital and found victim  Hanufa  on  the  1st  floor.  The  right  hand  of  Hanufa  was wrapped with tape. Being accosted, the relevant doctor informed that the hand of Hanufa was barely attached to the skin. There was bandage at the dorsum of victim Hanufa. P.W.14 denied the defence suggestions that victim Hanufa disclosed nothing to him or that he deposed falsely being related to the victim.      

In  his  testimony  P.W.15  Ramij  Uddin  divulges  that  he  is acquainted with both the informant and accused. The occurrence came to pass on 13-11-2011, Sunday, at around 2.30 pm. While he was going home after offering Salat, he came to learn that victim Suruj was killed, whereupon he went to the house of victim Suruj and found his injured dead body lying down beside the road. At the relevant time many people assembled at the spot. Suruj’s father and daughter  were  weeping.  He  found  Suruj’s  wife  who  was  also severely injured. Later, Suruj’s wife was taken to Kapashia Hospital wherefrom she was referred to Dhaka Medical Hospital wherein she succumbed  to  her  injuries.  P.W.15  identified  accused  Rahmat, Anowara and Mostofa in the dock.

In reply to cross-examination P.W.15 states that there was dispute between victim Suruj Miah and accused Rahmat over some landed property. He did not witness any incident as because he went to the spot at around 2.30 pm. At the relevant time he did not find any accused at the spot.

In  his  testimony  P.W.16  Md.  Taijuddin  avers  that  he  is acquainted with both the informant and accused. The occurrence took place 4(four) years ago in the afternoon at around 2.20 pm while he found the dead body of victim Suruj Miah lying down near his house. Accused Rahmat, Mostofa, Anowara and Rahima caused injuries to victim Suruj and his wife Hanufa. This witness identified accused Rahmat, Mostofa and Anowara in the dock.      

In reply to cross-examination P.W.16 says that he went to the spot after a long interval of the incident and further that he did not see the occurrence. He came to learn from people that the accused persons killed victim Suruj and Hanufa. P.W.16 denied the defence suggestion that he deposed falsely.

In her evidence P.W.17 Razia Begum discloses that both the informant and accused are known to her. The occurrence came to pass on 13-11-2011, Sunday, at around 2.30 pm. Deceased Suruj Ali is her neighbour. Having heard the death news of Suruj, she went to the spot and saw his dead body there and also found injured Hanufa in standing position. Subsequently, they (P.W.17) took Hanufa to Kapashia Hospital wherefrom she was shifted to Dhaka Medical College Hospital. On the way being accosted by her, victim Hanufa disclosed  that  accused  Rahmat,  Mostofa,  Anowara  and  Rahima caused injuries to her and her husband Suruj. On the following day Hanufa died in Dhaka.

In reply to cross-examination P.W.17 states that there are 5 to 6 residences in between her house and that of the spot. She could not recollect as to hearing whose alarm she went to the spot. P.W.17 denied the defence suggestion that he deposed falsely.

In  her  deposition  P.W.18  Minara  Begum  states  that  the occurrence passed off on 13-11-2011, Sunday, at around 2.30 pm and the place of occurrence is a Mahogany orchard of victim Suruj Miah. Having heard that victim Suruj Miah had been killed she went to the P.O. spot and found the dead body of victim Suruj Miah and also saw his injured wife Hanufa. Hanufa was thereafter taken to Kapashia Hospital wherefrom she was sent to Dhaka Medical College Hospital wherein she succumbed to his injuries. P.W.18 identified accused Rahmat, Mostofa and Anowara in the dock.

In reply to cross-examination P.W.18 says that witness Ruma (P.W.10) and Razia (P.W.17) took the victim to the hospital. She found the dead body of victim Suruj lying down under a Mahogany tree. P.W.18 denied the defence suggestions that she did not go to the spot or that she deposed falsely.

In his evidence P.W.19 Md. Siraj Uddin, a U.P. Chairman, states that both the informant and accused are known to him. The occurrence came into being on 13-11-2011 at around 2.30 pm and the place of occurrence is a Mahogany orchard located towards the eastern  side  of  the  residence  of  victim  Suruj.  At  the  time  of occurrence, he was in Dhaka and having heard the incident over telephone he went to the spot while informant Shahjahan disclosed that the accused persons caused injuries to victim Suruj and Hanufa following which victim Suruj died on the spot and later Hanufa died in Dhaka.

In reply to cross-examination P.W.19 states that he did not see any occurrence, rather he heard about the same. P.W.19 denied the defence suggestion that he deposed falsely.

In his testimony P.W.20 Nurul Islam discloses that both the informant and accused are known to him. 3/4 years ago one day at around 2.30 pm, he found the dead body of victim Suruj Ali lying down in his garden. He also heard that Suruj’s wife Hanufa was taken to hospital.

In reply to cross-examination P.W.20 says that his homestead is 2(two) kilometer away from the spot. The incident created much alarm  in  the  concerned  locality.  P.W.20  denied  the  defence suggestion that he deposed falsely.

P.W.21 S.I. Sanowar Jahan is the Investigating Officer of the case. In his deposition this witness unfurls that upon receiving the charge  of  the  investigation  of  the  case,  he  visited  the  place  of occurrence  and  prepared  sketch  map  (Exhibit  No.9)  along  with separate index (Exhibit No.10), recorded the statement of witnesses, held inquest of the dead body of victim Suruj Miah and seized some wearing apparels of the victims vide seizure list. However, having found  prima-facie  incriminating  materials,  he  submitted  police report No.48 dated 05-03-2012 against the accused under sections 302/34/447 of the Penal Code. This witness further states that the 2(two) accused persons made confessional statement under section 164 of the Code.      

In  reply  to  cross-examination  P.W.21  states  that  having received information about the occurrence, he went to the spot on the  strength  of  a  G.D.  The  duty  officer  sent  him  to  the  spot whereupon he went there in the afternoon. After going to the spot, he did not arrest any accused. While at the spot he drew up the inquest  report  of  deceased  victim  Suruj  Miah.  The  place  of occurrence is a Mahogany garden which is located near the house of deceased Suruj Miah. He found the dead body of Suruj Miah beside the  Mahogany  orchard.  He  seized  blood  smeared  chador,  lungi, petticoat and maxi as produced by the constable.

P.W.21 further states that on the basis of a tip off he arrested all the 4(four) accused persons in the night following 22-11-2011 from Companigonj P.S. under Sylhet District, and thereafter, he produced them before the court on 24-11-2011. P.W.21 denied the defence suggestions that the seized articles did not belong to Suruj and Hanufa or that the accused made confession due to intimidation. 

These are all about the evidences that had been adduced by the prosecution in a bid to bring the charge to the door of the accused.

We  have  heard  the  submissions  advanced  by  the  learned Deputy Attorney General Mr. Bashir Ahmed and the learned State Defence Advocate Mr. Hafizur Rahman Khan and also took into consideration the evidences and materials on record.

At the beginning of discourse, we can take a look at the manner of occurrence in order to see for ourselves as to what injury or injuries were found on the person of deceased victim Suruj and Hanufa at the initial stage of the case and what the apparent cause of their death.

It is on record that S.I. Sanwar Jahan (P.W.2) held inquest (Exhibit No.4) of the cadaver of deceased victim Suruj Ali, while one Md. Shafiqul Islam, ASI of Shahbag P.S, DMP, Dhaka prepared the inquest report (Exhibit No.8) of the corpse of deceased victim Hanufa.

The  relevant  portion  of  Exhibit  No.4  is  quoted  below  in

verbatim:

“B¢j Hp.BC| p¡­e¡u¡l S¡q¡e L¡f¡¢pu¡ b¡e¡, N¡S£f¤l p‰£u Lw/464 ®S¡u¡­ql, Lw/546 j£l q¡æ¡e pq Cw 13/11/11 a¡¢lM ¢hL¡m 17.10 O¢VL¡l pju Aœ b¡e¡d£e peÚj¡¢eu¡ eu¡f¡s¡ p¡¢L­e jªa p¤l¦S Bm£l hpa h¡s£l f§hÑ f¡­nÄÑ ÙÛ¡e£u ®Ll¡ja Bm£l hpa h¡s£l pwmNÀ c¢r­e ®R¡V Ly¡Q¡ c¤f¡­u Qm¡l l¡Ù¹¡l Efl Ef¢ÙÛa qCu¡ jªa p¤l¦S Bm£l m¡n f¢ÕQj Ešl ¢nEl£

Q¡cl ¢cu¡ A­dÑL ab¡ f¡ ®b­L h¤L fkÑ¿¹ Y¡L¡ AhÙÛ¡u f¡Cu¡ f¡­nÄÑ h¢eÑa p¡r£­cl ®j¡L¡­hm¡u jª­al i¡C n¡qS¡q¡e ®n­Ml pq­k¡N£a¡u p¤laq¡m ¢l­f¡VÑ

fÊÙºa L¢l­a Blñ L¢lm¡ j..z........... ”

(Emphasis added).

From the aforesaid narration, it is apparent that several deadly

injury marks were found on the person of deceased victim Suruj Ali

and his dead body was found lying down on a road in the nearby

place of his (victim) residence.

Regarding  cause  of  death  it  was  found  on  preliminary investigation that:

“jª­al X¡e q¡­al h¡ý­a d¡l¡­m¡ A­Ù»l L¡V¡ lš²¡š² SMjz 6 C¢’  

Hhw 5 C¢’ Ni£l qC­h, h¡j q¡­al L¡d pwmNÀ h¡ý ¢fR­el Aw­n Ll¡­m A­Ù»l L¡V¡ lš²¡š² ra SMj, Ae¤j¡e 4 C¢’ Hhw 3 C¢’ Ni£l qC­hz

N¡­ul Q¡cl ps¡Cu¡ jª­al fs­e lš²¡š² ®QL m¤¢‰ f¡Ju¡ ®Nm, jª­al i¡C­ul p¡q¡­kÉ m¡n EmV-f¡mV L¢lu¡ ®cM¡ k¡u, jª­al X¡e q¡­al f¡S­ll Aw­n d¡l¡­m¡ A­Ù»l L¡V¡ lš²¡š² SMj Ae¤j¡e 6 C¢’ Ni£l Ae¤j¡e 5 C¢’ k¡q¡

hNm ®hc L¢lu¡ k¡uz jª­al ¢f­Wl j¡G M¡­e ®jl¦cä hl¡hl d¡l¡­m¡ A­Ù»l L¡V¡ lš²¡š² SMj  Ae¤j¡e 6 C¢’ Ni£l Ae¤j¡e 1 C¢’ qC­hz E­õ¢Ma SMj R¡s¡ Bl ®L¡e SM­jl ¢Qq² f¢lm¢ra qu e¡Cz jª­al Eiu f¡ -

j¡¢Vl p¡­b m¡N¡­e¡z jª­al f¤l¦o¡‰ lš² j¡M¡ J h¡u¤ f­b lš² j¡M¡ AhÙÛ¡u f¡Ju¡ ®Nmz jª­al Eiu f¡ J q¡a pq nl£­ll ¢h¢iæ ÙÛ¡­e lš² j¡M¡ AhÙÛ¡u f¡Ju¡ k¡uz

fË¡b¢jL  ac¿¹L¡­m  jª­al  h¡s£l  ®m¡LSe  pq  Ef¢ÙÛa  ®m¡LSe­L fËL¡­nÉ J ®N¡f­e ¢S‘¡p¡h¡c L¢lu¡ S¡e¡ k¡u ®k, Cw 13/11/11 a¡¢lM ®hm¡ Ae¤j¡e 2.30 O¢VL¡l pju jªa p¤l¦S Bm£l a¡q¡­cl hpa h¡s£l f§hÑ f¡­nÄÑ a¡q¡­cl S¢j­a b¡L¡ ®jqN¢e h¡N¡­e B¢pu¡ N¡­Rl X¡m f¡m¡ f¢lQkÑ¡ Ll¡l a¡­cl fË¢a­hn£ ®j¡x lqja Bm@£ l¦j¤, l¦j¤l Ù»£ B­e¡u¡l¡ ®hNj, ®j­u

l¡¢qj¡, ®R­m ®j¡Ù¹g¡ pq ÙÛ¡e£u BCe E¢Ÿe, c¤m¡m, S¢le¡ ®hNj J ¢hõ¡m ®q¡­pe pq B­l¡ A‘ae¡j¡ 5/6 Se c¡, n¡hm, hõj CaÉ¡¢c q¡­a ¢eu¡ h¡N¡­e

®S¡l f§hÑL fË­hn L¢lu¡ p¤l¦S A¡m£ L¡­S h¡d¡ ¢c­m p¤l¦S Bm£l p¡­b a¡q¡­cl  Lb¡  L¡V¡L¡¢V  quz  Lb¡  L¡V¡L¡¢Vl  HL  fkÑ¡­u  d¡l¡­m¡  c¡  ¢cu¡ E­õ¢Ma ®m¡LSe p¤l¦S Bm£l Eiu q¡­al h¡ý­a, h¡j h¡ýl hN­ml e£­Q J

¢f­Wl j¡GM¡­e ®jl¦c­ä ­L¡f j¡¢lu¡ …l¦al L¡V¡ lš²¡š² SMj L¢l­m p¤l¦S

Bm£ c¡­ul ®L¡­f …l¦al lš²¡š² SMj AhÙÛ¡u OVe¡ÙÛ­mC j¡l¡ k¡uz”

(Emphasis put). Thus,  it  appears  that  on  preliminary  investigation,  it  was found that the accused persons being armed with Dao, crowbar, ballom etc. came to the place of occurrence and put hindrance to the work of victim Suruj Ali, whereupon an altercation broke out and at one stage the accused persons inflicted several dao blows on the

person of deceased victim Suruj Ali following which he died at the

spot.

On the other hand, the inquest report of the dead body of

another deceased victim Hanufa Begum has been marked as Exhibit

No.8. The relevant portion of which is stated below in vernacular:

“B¢j Hp.BC| ­j¡q¡Çjc n¢gL¥m Cpm¡j  p‰£u Lw/11220 ®j¡x ljS¡e Bm£ pq AcÉ Cw 15/11/11 a¡¢lM ®hm¡ 11.15 ¢j¢e­V DMCH j­NÑ

q¡¢Sl qCu¡ p¡r£­cl pe¡š²j­a J a¡q¡­cl ®j¡L¡­hm¡u jªa qe¤g¡l m¡n Ešl

¢nEl£ AhÙÛ¡u plL¡l£ Q¡cl à¡l¡ Y¡L¡ AhÙÛ¡u f¡Cu¡ m¡­nl p¤laq¡m fË¢a­hce fÊÙºa L¢l­a Blñ L¢lm¡ jz

jª­al hup Ae¤j¡e 28 hvpl qC­hz j¤Mjäm ®N¡m¡L¡lz N¡­ul lw nÉ¡jm¡z j¡b¡l Q¤m L¡­m¡ Ae¤j¡e 18 C¢’ qC­hz ®Q¡M J j¤M håz X¡e

q¡­al pÇf§ZÑ hÉ¡­äSz h¡j q¡­al L¥e¤C­ul Ef­l q¡mL¡ ¢Rm¡ SMj B­Rz h¡j hN­ml e£­Q 13(®al) ¢V ®pm¡Ck¤š² SMj pq ¢Rm¡ SMj B­Rz ®f­Vl h¡j f¡­nÄÑ q¡mL¡ ¢Rm¡ SMj B­Rz ¢f­Wl Efl ¢Râk¤š² SMj B­Rz Eiu f¡

ü¡i ¡¢hLz ®k±e¡­‰ h£k ÑB­Rz jmà¡l ü¡i ¡¢hLz fl­e ph¤S ®f¢V­L¡V J ¢f­Ë¾Vl

p¤¢al fl¤¡ae jÉ¡¢LÊB­Rz”

(Emphasis supplied).

From a plain reading of the aforesaid narration, it palpably transpires that several marks of injuries were also found on different

parts of the body of victim Hanufa including a perforated wound on

her backside.

Regarding cause of death it was stated in Exhibit No.8 that,

“fË¡b¢jLi¡­h p¡r£­cl ¢S‘¡p¡h¡­c S¡e¡ k¡u Na Cw 13/11/11

a¡¢lM c¤f¤l Ae¤j¡e 02.00 O¢VL¡u ¢eS hpax h¡s£l f§hÑ f¡­nÄÑ S¢j pwœ²¡¿¹ ¢h­l¡­d fË¢af­rl à¡l¡ BO¡a fË¡ç qCu¡ j¡l¡aÈL SMj fË¡ç qC­m Y¡L¡ ®j¢X­Lm L­mS q¡pf¡a¡­p Na Cw 14/11/11 a¡¢lM ®i¡l 03.00 O¢VL¡u

i¢aÑ qe Hhw Na 14/11/11 a¡¢lM ¢hL¡m 03.30 O¢VL¡u j¡l¡ k¡uz”

   (Underlining is ours)

We have already observed that P.W.6 Dr. Liyakot Ali Khan was a member of the medical board which conducted post-mortem examination of the cadaver of deceased victim Suruj Ali as well as submitted post-mortem report (Exhibit No.5) accordingly.

On the other hand, Dr. Prodip Biswas, Special Officer-in- Charge, Health Directorate, Mohakhali, Dhaka held autopsy of the corpse of deceased victim Hanufa which was marked as Exhibit No.11.  On  going  through  the  aforesaid  exhibited  documents (Exhibit Nos.5 & 11) it reveals that on both the occasions various marks of injuries were found on the person of both the victims of the  case  which  according  to  the  concerned  doctors  were  ante- mortem and homicidal in nature. Both the concerned doctors opined

that the deceased victim Suruj Ali and Hanufa were killed due to infliction  of  various  injuries  on  their  person  which  comes  in agreement with that of the inquest report in material particulars. In such a backdrop, we are left with no other option but to hold that deceased victim Suruj Ali and his wife Hanufa were brutally killed by  inflicting  several  blows  by  Dao,  crowbar,  etc.  and  the prosecution has successfully been able to prove the cause of death of the deceased victims. It is to be noted that the defence also did not  dispute  the  cause  of  death  of  victim  Suruj  Ali  and  Hanufa Begum as was furnished by the relevant doctors.

Now,  the  most  striking  question  that  requires  to  be determined is, who is or are the actual perpetrator or perpetrators of the  gruesome  murder  of  deceased  victim  Suruj  Ali  and  Hanufa Begum.

Upon  skimming  through  the  evidences  and  materials  on record, it appears that P.W.3 Mst. Sumi Akhter is the only star witness of the grisly incident which passed off before her very eyes regarding which she gave a detailed account in her evidence which remains unassailed in her cross-examination. To conceive the matter in its true perspective, it would be profitable to quote the relevant evidence of P.W.3 in vernacular, though it would encumber the body of the judgment a little bit.

In her testimony P.W.3 asserts that,

“

”

(Emphasis added).

In her cross-examination P.W.3 reiterates that,

“

” (Emphasis supplied).

Thus, from the aforesaid discussions, it becomes crystal clear that P.W.3 Mst. Sumi Akhter was a eye witness of the occurrence who  categorically  stated  in  her  evidence  that  accused  Rahmat, Mostofa, Anowara dealt dao, crowbar blows on victim Suruj Ali, while  accused  Rahmat,  Mostofa,  Anowara  and  Rahima  caused injury  to  victim  Hanufa  while  she  came  forward  to  rescue  her husband and consequently victim Suruj Ali died at the spot while the other victim Hanufa died at the hospital later. The aforesaid evidence furnished by P.W.3 has remained uncontroverted as the defence  did  not  put  any  question  to  her  touching  the  aforesaid events. Even, the accused did not dispute the presence of P.W.3 at the place of occurrence at the material time. 

The aforesaid evidence of P.W.3 was also seconded by other prosecution  witnesses  so  far  the  factum  of  injuries  caused  to deceased victim Suruj and his wife Hanufa by the accused persons as well as the factum of witnessing the dead body of victim Suruj Ali with grievous injuries on his person and injured Hanufa Begum are concerned. In this connection, we may profitably refer to the relevant  evidences  of  the  concerned  prosecution  witnesses  in verbatim.

In his evidence P.W.1 Md. Sahjahan Sheikh gives out that,

In reply to cross-examination P.W.1 reiterates that he came to learn about the incident from the daughter of the deceased victim, Sumi (P.W.3).

In his testimony P.W.2 Abdur Rauf Rubel avers that,

In reply to cross-examination P.W.2 further states that upon going to the spot he found victim Suruj dead and injured Hanufa in standing position.

In his deposition P.W.4 Jhorna discloses that,

In  his  evidence  P.W.5  Md.  Ramiz  Uddin  states  that,

In reply to cross-examination P.W.5 says that he came to learn  from  people  conversation  that  victim  Suruj  was  killed  by Rahmat and others.

In his testimony P.W.7 Razia claims that

In his deposition P.W.8 Laily discloses that,

In reply to cross-examination P.W.8 divulges that she came to learn from people talk that the accused persons killed Suruj and his wife.

In her testimony P.W.9 Mst. Ferdousi divulges that,

In her evidence P.W.10 Mst. Ruma Akhter states that,

In his evidence P.W.12 Md. Osman Sarker unfurls that,

In his evidence P.W.14 Md. Abdul Halim states that,

In his evidence P.W.15 Ramiz Uddin says that,

P.W.17 Razia Begum gives out in her evidence that,

(Underlining is ours).

Thus, it appears that having supported the prosecution version of the  case the other  private  witnesses  also  made  statements  in unison so far seeing the injured dead body of deceased victim Suruj as well as that of injured victim Hanufa who was taken to hospital wherein she succumbed to her injuries. The aforesaid prosecution witnesses were cross-examined by the defence but nothing could be elicited  from  their  mouth  which  could  belittle  their  testimonies. Rather, we find a ring of truth in the evidences of the aforesaid prosecution witnesses.

Furthermore,  from  the  evidences  of  P.W.7,  P.W.10  and P.W.14 it transpires explicitly that while being taken to the hospital as  well  as  during  her  stay  at  Dhaka  Medical  College  Hospital deceased  victim  Hanufa  Begum  made  dying  declaration  naming accused Rahmat, Mostofa, Anowara and Rahima as her assailants as well as of her husband.

We also found from the evidence of P.W.1 and P.W.12 that they went to the P.O. spot immediately after the occurrence while they  came  to  learn  from  Sumi  (P.W.3)  that  accused Rahmat, Mostofa, Anowara and Rahima assaulted her father and mother.

Regard  being  had  to  the  aforesaid  discussions  and  the observations made thereunder, we are of the considered view that on 13-11-2011 at around 2.30 pm deceased victim Suruj Ali and his wife Hanufa Begum sustained grievous bleeding injuries at the hand of the accused following which victim Suruj Ali died at the spot and his wife Hanufa Begum succumbed to her injuries while she was being treated at Dhaka Medical College Hospital.

Having waded through the materials on record, it is found that there are some other materials to rope in the 4(four) accused in the  killing  incident  of  victim  Suruj  Ali  and  Hanufa  Begum regarding which we will take stock of now.

Materials on record go to show that the accused persons went into hiding immediately after the occurrence and the Investigating Officer, (P.W.21) on the basis of a tip off, apprehended them in the night following 22-11-2011 from a distant place of Companygonj Police  Station  under  Sylhet  District  and  thereafter,  the  accused persons were produced before the court on 24-11-2011, whereupon accused Mostofa and Anowara Begum gave confessional statement implicating themselves as well as the other 2(two) accused in the killing incident of deceased victim Suruj Ali and Hanufa Begum.

It is by now well settled that an accused can be found guilty and convicted solely banking on his confession if, on scrutiny, it is found to be true, voluntary and inculpatory in nature. To find out whether the aforesaid confessions of the above 2(two) accused have satisfied all the aforesaid criterion or not, we may have a peep at the relevant confessions with a searching eye.

The  confession  of  accused  Mostofa  has  been  marked  as Exhibit No.6 which runs as under:

Bj¡l h¡h¡l p¡­b p¤l¦S Bm£l ¢h­l¡d ¢Rmz p¤l¦S Bm£ Bj¡l h¡h¡l

S¢j fËa¡le¡ L­l ¢e­u ¢N­u¢Rmz aMe Bh¡l h¡h¡ e¡h¡mL ¢Rmz p¤l¦S Bm£ Bj¡­cl J p¤l¦S Bm£l p£j¡e¡l j­dÉ Q¡l¡N¡R m¡N¡­m L­uL¢V Q¡l¡N¡R j­l k¡uz H ¢e­u OVe¡l ¢ce c¤f¤l 12.00 O¢VL¡l ¢c­L Bj¡­cl N¡mj¾c Ll­m Bj¡l ®R¡V ®h¡e l¡¢qj¡ fË¢ah¡c L­lz aMe p¤l¦S ¢ju¡ O­l Y¥­L Bj¡l ®R¡V ­h¡e l¡¢qj¡ ®L j¡ldl L­l Q­m k¡uz f­l Bj¡l j¡ H­p h¡h¡ J l¡¢qj¡ ®L

¢e­u ®Qu¡ljÉ¡­el L¡­R ¢hQ¡l ¢c­a k¡uz ®Qu¡ljÉ¡e­L e¡ ®f­u ¢g­l B­pz f­l c¤f¤l 2.00 O¢VL¡l ¢c­L Bj¡l j¡­ul Lb¡u (¢L ¢e­u ®ke Lb¡ qu S¡¢ee¡) ®l­N ¢N­u e¡j¡S ®l­M h¡s£­a ¢N­u c¡, R¤¢l J n¡hm ¢e­u p¤l¦S ¢ju¡ J a¡l hE (e¡j S¡¢e e¡) B­pz aMe p¤l¦S ¢ju¡ R¤¢l ¢c­u Bj¡l j¡-Hl j¡b¡,

X¡e J h¡j q¡­a ®L¡f ­cuz f­l Bh¡l p¤l¦S ¢ju¡ Bj¡l h¡h¡l j¡b¡u 2¢V

Bs¡B¢s ®L¡f ®cuz aMe B¢j h¡h¡-j¡-®L hy¡Q¡­e¡l SeÉ H¢N­u ®N­m p¤l¦S ¢ju¡ Bj¡l h¡j Ly¡­d c¡ ¢c­u ®L¡f j¡­lz HL fkÑ¡­u a¡l q¡a ®b­L cy¡ ®L­s ¢e­u B¢j a¡­L 3¢V ®L¡f ¢cCz HL fkÑ¡­u p¤l¦­Sl hE Bj¡l j¡­L n¡hm ¢c­u

f¡s j¡l­a ®N­m Bj¡l j¡ n¡hm ®L­s ¢e­u p¤l¦­Sl hE­L f¡s ®cuz f­l

B¢j Bj¡l j¡ J h¡h¡-®L j­e¡qlc£ q¡pf¡a¡­m ¢e­u k¡uz p¤l¦S J a¡l hE

Hl ¢L qu hm­a f¡lh e¡z HC Bj¡l hš²hÉz

On  the  other  hand,  the  confession  of  accused  Anowara Begum  has  been  marked  as  Exhibit  No.7.  The  relevant  text  of Exhibit No.7 is quoted below in verbatim:

Bj¡l ü¡j£ lqja Bm£ Hhw Aœ j¡jm¡l ¢iL¢Vj jªa p¤l¦S flØfl

Q¡Q¡­a¡ SÉ¡W¡­a¡ i¡Cz p¤l¦S Bm£l¡ Bj¡­cl pÇfc AeÉ¡ui¡­h ®i¡N cMm L­l Bp¡u S¢j ¢e­u Bj¡­cl p¡­b p¤l¦S Bm£l fË¡u pju Ns¡ q­a¡z p¤l¦S

Bm£ J Bj¡­cl h¡s£l p£j¡e¡l j­dÉ p¤l¦S Bm£l m¡N¡­e¡ Q¡l¡N¡R j­l k¡Ju¡u OVe¡l ¢ce AbÑ¡v 13/11/11 Cw pL¡m 11.00 O¢VL¡l p¤l¦S Bj¡l ®j­u l¡¢qj¡­L Ns¡l HL fkÑ¡­u j¡ldl L­lz aMe B¢j h¡s£ ¢Rm¡j e¡z f­l

B¢j  h¡s£­a  H­p  ­j­u­L  ¢e­u  ®Qu¡ljÉ¡­el  h¡s£­a  ¢hQ¡l  ¢c­a  k¡Cz ®Qu¡ljÉ¡e­L e¡ ®f­u h¡s£­a Q­m B¢pz f­l c¤f¤l 2.00 O¢VL¡l ¢c­L p¤l¦S J p¤l¦­Sl Ù»£ qe¤g¡ n¡hm, R¤¢l J c¡ ¢e­u Bj¡­cl h¡s£­a H­p N¡¢mN¡m¡S öl¦ L­lz HL fkÑ¡­u p¤l¦S Nl¦ Sh¡C Ll¡l R¤¢l ¢c­u Bj¡­L J Bj¡l ü¡j£­L ®L¡f¡­a öl¦ L­lz Bj¡l j¡b¡u, h¡j q¡­al Lê£l Ef­l J X¡e q¡­al Le¤C

Hl Ef­l L¡V¡ lš²¡š² SMj quz Bj¡l ü¡j£l j¡b¡u “x” ¢Q­q²l BL¡­l c¤¢V

®L¡f m¡­Nz Bj¡­cl­L ®L¡f¡­a ®c­M Bj¡l ®R­m ®j¡Ù¹g¡ h¡j Ly¡­dl Efl ®L¡f ¢c­u L¡V¡ lš²¡š²

SMj L­lz H pju Bj¡l ®R­m ®j¡Ù¹g¡ p¤l¦­Sl q¡a q­a hs c¡ ®V­e ¢e­u

p¤l¦S­L 3¢V ®L¡f j¡­lz aMe qe¤g¡ n¡hm ¢c­u Bj¡­L f¡s j¡l­a Bp­m

B¢j n¡hm d­l a¡l L¡R ¢e­u a¡­L f¡s ¢cCz f­l ®m¡LSe H­p Bj¡­L J

Bj¡l ü¡j£­L j­e¡qlc£ q¡pf¡a¡­m ¢e­u k¡uz p¤l¦SJ a¡l Ù»£­L ®L¡b¡u ¢e­u

k¡u a¡ hm­a f¡lh e¡z HC Bj¡l hš²hÉz

(Emphasis put).

From a plain reading of the aforesaid confessions together, it appears manifestly that in their confessional statements both the accused gave a blow by blow account of the incident implicating themselves  as  well  as  the  other  2(two)  accused  with  the  same. According to the confessions of the accused, deceased victims Suruj Miah and his wife Hanufa came to the spot with dao, knife and crowbar and launched an attack upon the accused, whereupon in order to save their souls the accused persons forcebly snatched away crowbar  and  dao  from  the  hands  of  the  deceased  victims  and thereafter they dealt several blows with the same to the victims as a result  both  of  them  sustained  grievous  injuries  and  ultimately succumbed to such injuries. Thus, it revelas that both the confessing accused admitted in their confessions that both the victims were eventually killed by them as well as by their cohorts. Furthermore, in  their  confessional  statements  accused  Mostofa  and  Anowara Begum have tried to give out that the 2(two) deceased victims are the  aggressors  who  being  armed  with  deadly  weapons,  at  first, launched an attack upon the accused, while they (accused) snatched away the weapons from the hands of the victims and inflicted blows with the same upon the victims in order to save their souls and during the process they also sustained injuries following which they were taken to Monohordi Hospital for treatment. But the aforesaid claim of the accused does not come in agreement with the evidence of the only eye witness of the case i.e. P.W.3 Sumi Akhter who asserts in her testimony that the accused persons are the aggressors who  being  armed  with  deadly  weapons  came  to  the  spot  and swooped  on  the  victims  and  inflicted  blows  to  them  following which victim Suruj Miah died at the spot while his wife Hanufa succumbed to her injuries on the following day of the occurrence while she was being treated at Dhaka Medical College Hospital. We have  already  observed  that  the  aforesaid  testimony  of  P.W.3 remained  unassailed  and  unshakened  in  her  cross-examination. Moreover, in support of their plea of getting injured at the time of occurrence, both the accused did not adduce any injury certificate

Having  gone  through  the  aforesaid  2(two)  confessions,  it further appears that those were-self incriminating and it also tars the co-accused with the same brush as himself/herself. Furthermore, it transpires that the factum of event as disclosed in the confessional statements of the 2(two) accused also comes in agreement with the prosecution story in material particulars. In such view of the matter, the  confessional  statements  of  accused  Mostofa  and  Anowara Begum can be regarded as true as well as inculpatory in nature.

Now, we can consider the voluntary nature of the confession of accused Mostofa and Anowara.

From the evidence of P.W. Nos.11 and 21 we found that accused  Mostofa  and  Anowara  including  the  other  2(two)  co- accused were apprehended in the night following 22-11-2011 from a distant  place  of  Companigonj  P.S.  under  Sylhet  District,  and thereafter, they were produced before the relevant Magistrate on 24- 11-2011,  whereupon  on  27-11-2011  the  confessions  of  accused Mostofa  and  Anowara  Begum  were  recorded  by  P.W.11  in compliance with all necessary formalities as required by law. From the evidence of P.W.21, it further appears that it took time to bring the accused from Sylhet to Gazipur District.

From a combined reading of the evidence of P.W.11 together with the confessions of both the accused, it further reveals that after production of the accused before the Magistrate they were given 3(three) hours time for reflection during which they were kept under the custody of court peon named Anowar Rahman. Thereafter, the Magistrate  concerned  asked  the  relevant  questions  to  both  the accused as set out in column 5 and 6 of the confession recording form. More precisely amongst others both the accused were asked that if they made confession it would be used against them in the court as evidence. Since the accused still expressed their willingness to admit their guilt, the concerned Magistrate jotted it down and thereafter those were read over and explained to the accused who admitted the contents thereof to be true and correct account of the incident  by  putting  their  signatures  thereto.  P.W.11  proves  the confessions  of  accused  Mostofa  and  Anowara  including  their signatures appearing thereon as Exhibit Nos.6 & 6 series and 7 & 7 series  respectively.  In  his  evidence  P.W.11  avers  that  the confessions of both the accused are true and voluntary in nature and further  that  he  examined  the  body  of  both  the  accused.  Under column 9 of both the confessions recording form the Magistrate gave certificate in the following language:

Materials on record further go to show that after penning down the confession of accused Mostofa and Anowara, they were sent to Gazipur Jail Hazat. Even after coming out from the clutches of police the aforesaid 2(two) accused did  not  resile from  their confessions by filing any retraction application. It further appears that during their examination under section 342 of the Code accused Mostofa and Anowara did not make any complain touching the voluntary character of their confession, though their attention was drawn to their respective confessions. In such a backdrop, we have no other option but to hold that the confessions of accused Mostofa and Anowara were voluntary in nature.  

Having  devoted  our  anxious  thought  to  the  arguments advanced by both the parties and having gone through the entire evidences and materials on record, we are of the dispassionate view that the prosecution has succeeded in establishing the guilt of the

accused to the core with regard to the offence with which they have been charged.

It has been argued on behalf of the defence that the FIR was filed after a delay of 15 hours 40 minutes and as such the chance of embellishment and false implication cannot be ruled out. But, in consideration of the facts and circumstances of the instant case, we cannot  align  with  the  view  expressed  by  the  learned  defence Advocate inasmuch as it is found from the record that P.W.1 Md. Shahjahan Sheikh is the informant of the case who having learnt about the occurrence over phone from the daughter of deceased victim Suruj Miah named Sumi came to the spot and found the dead body  of victim Suruj Miah as well  as his injured wife Hanufa. Eventually,  Hanufa  was  first  taken  to  Kapasia  Sadar  Hospital wherefrom  she  was  shifted  to  Dhaka  Medical  College  Hospital wherein she succumbed to her injuries on the following day. In the meantime, P.W.1 brought the matter to the notice of the relevant Police  Station,  wherefrom  police  appeared  at  the  spot  and  held inquest of the cadaver of deceased victim Suruj Miah on 13-11- 2011 at 17.10 pm and sent the dead body to Gazipur Hospital for post-mortem  examination.  Ultimately,  P.W.1  went  to  the  Police Station which is 12 km away from the spot and lodged the FIR on

14-04-2011. It has been stated in the FIR (Exhibit No.1) that since the relatives of the deceased victims were overwhelmed with grief, P.W.1 after consulting the local people filed the ejahar and as such delay was caused which was totally unintentional. In view of the facts and surrounding circumstances of the case, the explanation offered in the FIR regarding delay in filing the FIR appears to be just  and  acceptable.  Therefore,  the  argument  advanced  by  the learned defence Advocate on this count appears to be wide of the mark.

Contention has also been raised on behalf of the condemned- accused  that  some  important  witnesses  like  Khadeza  and  Abdul Kuddus, the father of victim Suruj Miah were not  examined  as witnesses and, as such, the accused are entitled to get benefit under section 114(g) of the Evidence Act. This argument of the defence is also untenable in law inasmuch as section 134 of the Evidence Act postulates that no particular number of witnesses shall in any case be required for the prove of any fact. If believed, conviction may be based on the evidence of a single witness provided that it is full, complete and self-contained. Furthermore, it is up to the prosecution who determines as to how many witnesses it will examine to prove its case. In the instant case at our hand, it is found that sufficient number of natural, probable and competent witnesses have been

examined by the prosecution who proved the case and the same was also seconded by post-mortem and inquest report as well. In such a posture of things; the argument put forward by the learned Defence Advocate on this count bites the dust.   

It has further been pressed into service by the defence that the confessions of accused Mostofa and Anowara were not voluntary and true as they were kept under police custody for 5(five) days preceding recording their confessions. But we cannot agree with the aforesaid view of the defence in view of the evidence of the relevant Magistrate  as  well  as the Investigating Officer of  the case who furnished evidence as P.W.11 and P.W.21 respectively. It is found from evidence of P.W.21 that he arrested the confessing accused including the other 2(two) accused in the night following 22-11- 2011 from Companygonj P.S. under Sylhet District and thereafter produced them before the concerned Magistrate on 24-11-2011 as it took considerable time to bring the accused from Sylhet to Gazipur. It  further  appears  that  for  the  purpose  of  investigation  the Investigating Officer took the accused on remand for 03(three) days, and since the accused, on quizzing, admitted their guilt they were produced before the concerned Magistrate on 27-11-2011 at 2.00 pm for getting their confessional statements recorded. In view of the

above, the argument advanced by the learned defence Advocate on this score falls to the ground.

It has next been argued on behalf of the defence that P.Ws.7, 10 and 14 are relatives of the victims and they are also interested witnesses as such their evidences inspired no confidence. It is true that P.Ws.7, 10 and 14 are relatives of deceased victim Suruj Miah and Hanufa Begum. But that alone will not create any dent in their evidences  since  the  defence  by  making  cross-examination hopelessly failed to bring out any contradictions or inconsistencies touching the material part of the prosecution story. Moreover, we find  a  ring  of  truth  in  the  evidence  furnished  by  the  aforesaid 3(three) witnesses which also was seconded by other evidences and materials on record. Therefore, the evidences of P.W. Nos.7, 10 and 14 cannot be thrown overboard simply for the ground that they are connected to the deceased victims. In such a backdrop, the argument advanced by the learned defence Advocate on this count cannot be countenanced.

Now,  we  can  turn  our  eyes  to  the  quantum  of  sentence awarded to the condemned-accused.

It  has come to light  from  the evidences and materials on record that on the date and time of occurrence accused Mostofa and his mother Anowara Begum gave fatal blows to deceased victim Suruj Miah and his wife Hanufa Begum with dao and crowbar as a result the former died instantly on the spot and the latter succumbed to her injuries on the following day while she was being treated at Dhaka Medical College Hospital. In this case both the ill-starred husband and wife were done to death in a brutal manner by accused Mostofa and Anowara Begum. The offence is diabolic, henious and revolting in nature. We have carefully considered the aggravating and mitigating circumstnaces of the case and we do not find any congent ground to interfere with the sentence awarded to accsued Mostofa and Anowara Begum. In our view, death penalty will be the only appropriate punishment for the ruthless accused which will equally comensurate with the magnituate of the crime commited by them.

From  the  impugned  judgment,  it  appears  that  the  learned Sessions Judge also found co-accused Rahmat and Rahima guilty for  causing  death  of  victim  Suruj  Miah  and  Rahima  Begum respectively, and thereafter, considering their old as well as young age awarded them punishment of imprisonment for life including a fine of Tk.10,000/- each with a default clause. We do not find any plausible  ground  to  interfere  with  the  aforesaid  verdict  of  the learned trial court so far the conviction and sentence of accused Rahmat and Rahima is concerned. It is to be noted that accused Rahima went into hiding after being enlarged on bail and still she remained as such and no criminal appeal was filed on her behalf challenging the veracity of her conviction and sentence.  

In the result, the Death Reference is accepted.

The sentence of death awarded to the accused Mostafa and Anowara Begum is hereby confirmed.

The conviction and sentence of accused Rahmat under section 302/109 of the Penal Code is also maintained.

The impugned judgment and order of conviction and sentence

is upheld.

Criminal Appeal No. 657 of 2016 and Jail Appeal Nos. 5 of 2016, 6 of 2016 and 7 of 2016 are dismissed being devoid of any substance.

Send  down  the  L.C.  Records  along  with  a  copy  of  the judgment to the court concerned forthwith.

Fatema Najib, J.  

I agree.