Present:

Mr. Justice Sheikh Hassan Arif And

Mr. Justice Biswajit Debnath

Death Reference No.34 of 2017

The State

Vs.

Md.  Abdus  Salam  Sheikh  and  two others.

      ...Condemned-Prisoners.

With

Criminal Appeal No. 3188 of 2017 Md. Abdus Salam Sheikh and another.                      .. Convict-Appellants.

                     Vs.

The State  ..Respondent.

 Mr.  Raghib  Rauf  Chowdhury, Advocate

          …For the convict-appellants.

With

Criminal Appeal No. 3459 of 2017 Abdul Hamid Malitha.

                     .. Convict-Appellant.

                     Vs.

The State  ..Respondent.

Mr. Md. Asif Hasan, Advocate

            …For the convict-appellant.

With

Jail Appeal No. 107 of 2017

Md. Jamil Mondol

                     .. Appellant.

                     Vs.

The State  ..Respondent.

With

Jail Appeal No. 108 of 2017

Abdul Hamid Malitha

                     .. Appellant.

                     Vs.

The State  ..Respondent.          

With

Jail Appeal No. 109 of 2017

Md. Abdus Salam Sheikh

                     .. Appellant.

                     Vs.

The State  ..Respondent.

Mr. Harunur Rashid, D A.G. with

Mr. Zahid Ahammad (Hero), A. A.G. with Mr. Md. Altaf Hossen Amani, A.A.G with Mr. Mohammad Shafayet Zamil,  A.A.G with

Mr. Mohammad Humayun Kabir, A.A.G

                     …..For the State.

Heard  on  01.11.2022,  13.11.2022, 14.11.2022,  20.11.2022,  and 27.11.2022,  

Judgment  on  4th and  5th December,2022 

SHEIKH HASSAN ARIF, J:

1. This Death Reference has been sent to us by the First Court of Additional Sessions Judge, Kushtia in view of the provisions under Section 374 of the Code of Criminal Procedure seeking confirmation of the Death sentence imposed on three  accuseds  vide  its  judgment  and  order dated 15.03.2017 passed in Sessions Case No.

437 of 2012 upon convicting them under Sections 302/34 of the Penal Code. The accused-convicts having, in the meantime, preferred Criminal Appeal No. 3188 of 2017 and 3459 of 2017 as well as Jail Appeal No. 107 of 2017, 108 of 2017 and 109 of 2017, the same have also been taken up for hearing and disposal along with the Death Reference.

2. Background Facts:

2.1        The prosecution case, in short, is that the P.W.1, wife of deceased, Khabir Uddin, a valiant freedom fighter, lodged an FIR on 08.02.2012 with the Daulatpur Police Station under Kushtia district alleging, inter-alia, that her deceased husband was a night guard of a motor house owned by Md. Bazlur Rahman, a neighbor. That, on 07.02.2012 at 07.30 pm, her husband left home for guarding the said motor house at Chorer Math area. In the next morning

at about 5.00 am, when one Aslam (P.W.6) went there for giving water, he found her husband dead. Accordingly, Aslam informed her and the people of the locality, who rushed to the spot and found her husband dead with a scarf tied around his neck. That her husband was killed in between 7.30 pm and 5.00 am of 07.02.2012 and 08.02.2012 by some unknown people by strangulation with a scarf.

2.2        Upon such FIR, the same was registered as Daulatpur Police Station Case No. 07 dated 08.02.2012 under Sections 302/34 of the Penal Code. The case was then investigated by the P.W.11 (an S.I of the Police Station), who had already rushed to the spot on the strength of a G.D entry and prepared surathal report on the dead body in presence of the witnesses and seized some materials by preparing seizure list. During investigation, he prepared sketch map

and index in respect of the place of occurrence and arrested two of the accuseds, namely Md. Abdus Salam Sheikh and Md. Jamil Mondal. Both the accuseds then gave confessional statements before Judicial Magistrate. Thus, upon finding the allegations to be established prima-facie, P.W. 11 (investigating officer) submitted charge sheet, being Charge-Sheet No. 240 dated 18.08.2012, against all the three accuseds under Sections 302/34 of the Penal Code. After submission of the charge-sheet, another accused Abdul Hamid Malitha surrendered before the Court below.

2.3           The case, being ready for trial, was sent to the Court of Sessions Judge, Kushtia and the same was registered as the Sessions Case No. 437 of 2012. The Sessions Judge concerned then took cognizance of offences against all the

accuseds and sent the case records to the First Court of Additional Sessions Judge, Kushtia for trial upon fixing date for charge hearing. The trial Court then framed charge against all the sent up accuseds vide order dated 24.03.2013 under Sections 302/ 34 of the Penal Code. The charge was read over to them, but they pleaded not guilty and demanded trial.

2.4        During trial, the prosecution produced 12 witnesses (P.W.1 to P.W.12), along with certain materials, to prove the charge. The said witnesses were examined and cross-examined by the parties. After recording of depositions of the witnesses and evidences, the trial Court examined all the accuseds under Section 342 of the Code of Criminal Procedure for the first time on 18.07.2016. Thereupon, the accuseds pleaded not guilty and refused to give any

evidence in support of their defense. Subsequently, some witnesses were recalled and the said witnesses were examined and cross examined by the parties again. The trial Court then examined the accuseds under Section 342 of the Code of Criminal Procedure again on 15.11.2016. As against which, they further pleaded not guilty and refused to give any evidence. The trial Court then, after hearing the parties, delivered the impugned judgment and order dated 15.03.2017, thereby, convicting all the accuseds under Sections 302/34 of the Penal Code and imposed death sentences on them and a fine of Tk.5000/- (five thousand) each. The trial Court then sent the case records to the High Court Division of the Supreme Court of Bangladesh for confirmation of the said death sentences in view of the provisions under Section 374 of the Code of

Criminal Procedure. The same has then been registered as Death Reference No. 34 of 2017 after necessary formalities including preparation of paper books. The convicts having, in the meantime, preferred aforementioned Criminal Appeals and Jail Appeals, the same, along with the Death Reference, have been sent to this bench for disposal.

3. Depositions of the Witnesses:

3.1  As stated above, the prosecution has produced twelve witnesses to prove the charge. Before re-assessment of the evidences as against the submissions made by the learned Advocates appearing for the parties, let us first describe, in short, the material parts of the deposition of the witnesses as produced by the prosecution before the trial Court:

P.W.1 (Most. Urjina Begum) is the informant and wife of the deceased. She deposed that on 7th February, 2012 at 07.30, the occurrence took place when her husband, valiant freedom fighter Khabir Uddin, was guarding a motor pump house at Chorer Math area of Goalgram village. That, in the next morning, Aslam (P.W.6) informed her that her husband had been killed. She, along with her daughter and neighbours, then rushed to the spot at the motor house of Bozlu and found the dead body of her husband lying with a scarf wrapped around his neck. That her husband was killed by someone in between 07.30 pm of the last evening and 05.00 am of the next morning by tying scarf around his neck. She then lodged the FIR after discussing with neighboring people wherein she could not give any names of the accuseds. That, subsequently, she filed a murder case in the Court by naming Salam, Mohsin, Bazlu, Fazlu, Intaz, Hamid and Mondol as

accuseds. Police then conducted investigation. She, accordingly, proved her FIR as Exhibit-1 and her signature thereon as Exhibit- 1/1. That police prepared surothal report wherein she signed and, accordingly, she proved the said surothal as exhibit- 2 and her signature thereon as exhibit-2/1.

In cross-examination by accused Salam and Jamil, she deposed that about 15 days after filing of the FIR, she filed a case in the Court naming some accuseds in the murder case and she came to know that Hamid, Jamal and Salam were made accuseds in the charge-sheet. That she did not see any occurrence and admitted that she did not have any previous case against the accuseds and that her husband was working as night guard in exchange for paddy without any payment. She further deposed in cross-examination that she filed the case in the Court after discussing with the local people when

she suspected the accuseds. That police had beaten accused-Salam after arrest and that she did not have previous enmity with the accuseds.

P.W.2 (Md. Mirajul Islam) is the cousin of the deceased. According to his deposition, the occurrence took place on the 7th day of 2nd month of 2012 after 07.00 pm when deceased freedom fighter Khabir Uddin was guarding a motor machine at a motor house. This witness came to know in the next morning that Khabir was killed. He then rushed to the spot and found the dead body of Khabir lying with a scarf wrapped around his neck. He, subsequently, heard that three people had killed Khabir and that they admitted such killing before Magistrate; their names are Hamid, Jamil and Salam.

In cross-examination on behalf of the accused Salam and Jamil, he deposed that he met deceased

Khabir in the evening during prayer and that he did not see the occurrence. That, in the morning, he met Urjina (P.W.1) and that he did not hear the names of the accuseds on that day. That P.W.1 separately filed case before the Court and that he does not know whether he was made witness in the said case and he also does not know the names of other witnesses in the said case. He then deposed that Khabir had previous enmity with Salam and that Khabir has been guarding the motor house of Bazlu for about one year during night.

P.W. 3 (Dr. Taposh Kumar Sarkar) is the doctor who conducted post mortem on the deceased. He deposed that, on 08.02.2012 at about 12.30 noon, the dead body of deceased Khabir Uddin (65) was produced to him by one constable Sheikh Maruf Hossain and he commenced post mortem on it at 1.30  on his own and, he, accordingly, found the

cause of death as “due to hemorrhage and shock and asphyxia as a result of blunt trauma to head and strangulation which was antemortem and homicidal in nature”. Accordingly, he proved the said post mortem report as Exhibit-3 and his signature there on as Exhibit-3/1. In cross- examination, he deposed that as per the opinion given by him, the death was not possible by tying himself with a rope. He then denied that the death was caused due to suicide. He also deposed that he mentioned physical injury in the report.

P.W.4 (Md. Monjurul Imam) is the Judicial Magistrate who recorded the confessional statements of two of the accuseds, namely Md. Abdus Salam Sheikh and Md. Jamil Uddin Mondal. He deposed that, on 11.03.2012, he was working as Senior Judicial Magistrate at Kushtia when accuseds Jamil and Salam were produced to him for recording

confessional statements. He, accordingly, recorded the same in accordance with law. He first recorded the confessional statement of Jamil and then recorded confessional statement of Salam. He, accordingly, proved the confessional statement of Jamil as Exhibit-4 and six signatures there-on as Exhibit-4 series. He also proved the confessional statement of accused Salam as Exhibit-5 and six signatures on it as Exhibit-5 series.

In cross-examination, he admitted that both the accuseds were produced at the same time for recording confession. That he gave 3.30 hours time to accused Jamil for reflection and he did not mention how much time was given to accused Salam. But he deposed that he started recording deposition of Salam at 4.35 pm. In cross- examination, he further deposed that he himself examined the accuseds and did not find any sign of

police torture on their bodies. Accordingly, he did not get them examined by doctor. He denied defence suggestion that the accuseds had sign of torture on the body and that they told him that they were confessing because of police torture. He further deposed that upon seeing their signatures the accused seemed to him as literate persons. In cross- examination, he further deposed that although he did not specifically mention in the form that the confession of the accuseds were true and voluntary, he mentioned the same in different way and that the accuseds were kept in the room of steno, Rathindra Nath Ghosh, and that they were not in his Khash Kamra (private room). He denied that their confessional statements were not recorded in accordance with the Code of Criminal Procedure. He further deposed in cross-examination that he did not tell the accuseds that they would not be handed over

to police after confession because no such thing was mentioned in the Form. 

P.W. 5 (Md. Hafijul Islam) is the nephew of the deceased. According to his deposition, his uncle, deceased Khabir, was killed in the motor house about two years back where his uncle used to stay for running the motor. That Aslam saw the incident in the morning and saw that Khabir was killed by strangulation at the throat. That he heard that Salam, Jamil and Hamid had killed Khabir. That he also heard that Salam, Jamil and Hamid admitted their guilt before Magistrate. He, accordingly, identified the accuseds on the dock. In cross- examination, he confirmed that Khabir was his full uncle and that he did not see any occurrence and that he heard that the accuseds had admitted guilt. He further deposed that he did not have any information whether the accuseds were beaten by

police. He again confirmed that accuseds did not have enmity with the deceased.

P.W.6 (Md. Aslam Cheragi) is the cousin of the deceased. According to his deposition, deceased was killed two years back at the motor house by strangulation with a scarf. He heard that Salam, Jamil and Hamid had killed him and that they admitted their guilt before Magistrate. He, accordingly, identified the accuseds on the dock. That he heard about killing of deceased in the next morning. In cross-examination, he confirmed that Khabir was his brother and that he did not see the occurrence or that Khabir did not have enmity with the accuseds. He further deposed that Khabir used to guard the water pump and stay at the pump house. He heard from the village people that the accused had admitted guilt, but he could not remember the names of those people. He also

deposed that he did not know whether police had beaten the accuseds.

P.W.7 (Md. Khoaj Hossen) was a UP Chairman at the relevant time. He deposed that he heard about the death of deceased on 08.02.2012. That he signed the surothal report and, accordingly, he identified his signature. In cross-examination, he deposed that he did not read the paper which was signed by him and that some other people also singed the same.

P.W.8 (Monirul Islam) is the UP Member of Goalgram. According to him, freedom fighter Khabir Uddin died two and half years back and then police prepared a surothal report which he signed. Accordingly, he identified his signature as Exhibit- 2/3.

P.W.9 (Md. Samsul Haque) is a former UP Member. According to his deposition, freedom fighter Khabir Uddin died in February, 2012. That police then came and prepared the surothal report which he signed. Accordingly, he identified his signature as Exhibit-2/4.

P.W.10 (Md. Shahin) is the son of the deceased. According to his deposition, the occurrence took place on 07.02.2012. That he was working as police constable on that day in Meherpur district. He heard that his father was killed in the house of shallow machine of his area by strangulation and that he was killed in between 07.00 pm of 07.02.2012 and early morning of 08.02.2012. That he reached the place of occurrence on 08.02.2012 and saw the police. That police prepared surothal report, which he signed. He, accordingly, identified his signature as Exhibit-2/5. He further deposed that he heard that

his father was called away by Salam and that in the morning of next day, i.e. on 08.02.2012, his father’s dead body was found. In cross- examination, he deposed that he came to depose as a private person and that he confirmed that he was police constable in Meherpur. He further deposed that he did not have any knowledge whether two FIRs were lodged in respect of his father’s killing. He deposed that he gave statement to police during investigation and that his mother gave deposition before Court and that his sister gave statement. He confirmed that he did not see any occurrence and that his father Kabir Uddin did not have enmity with any people in the village. He also confirmed that he signed the surothal report.

P.W.11 (S.I Sawpan Kumar Das) was the investigating officer of the case. According to his deposition, at the relevant time, he was working at

Doulatpur Police Station on 08.02.2012 when the charge of investigation was handed over to him. Accordingly, he inspected the place of occurrence, prepared sketch map, index and surothal report and sent the dead body to the Kushtia General Hospital for post mortem to find out the cause of death. He, accordingly, seized the materials and arrested accused Salam and Jamil on suspicion and had their confessional statements recorded by a Magistrate under Section 164 of the Code of Criminal Procedure. He deposed that both the accuseds admitted that they and accused Abdul Hamid Malitha had killed victim Khabir Uddin out of previous enmity. He further deposed that he had recorded statements of the witnesses under Section 161 and, in his investigation, he found the allegation of killing against accuseds Abdus Salam, Jamil Mondal and absconding accused Abdul Hamid Malitha as prima-facie established and, accordingly,

he submitted charge-sheet against them, being Charge Sheet No. 240 dated 18.08.2012, under Sections 302/34 of the Penal Code. Accordingly, he identified his signature on the surothal report prepared by him as Exhibit-2/6. He also proved the seizure list as Exhibit-6 and his signature thereon as Exhibit 6/1. He deposed that he had seized some materials, namely a piece of brown colour jacket, piece of white check shirt, piece of white stripe lungi, piece of blue stripe scarf as Material Exhibit-I and that he found those materials with the dead body. According to his deposition, the deceased was killed by strangulation with a scarf. He, accordingly, proved the sketch map and index as Exhibits-7 and 8 and his signatures there on as Exhibits-7/1 and 8/1 respectively. He also proved the chalan of the death body as Exhibit-9 and his signature thereon as Exhibit-9/1. He then identified the accuseds Salam and Jamil on the dock. He deposed that Hamid

Malitha was absconding till submission of the charge-sheet. In cross-examination, he deposed that the FIR was recorded by O.C. Sheikh Lutfor Rahman and that this witness investigated the case. In cross-examination, he admitted that P.W.1-Urjina Begum filed a complaint before the Magistrate naming seven persons as accuseds and the said complaint was sent to him by the Court for submission of report. That Salam Sheikh, Fazlul Haque, Mohosin Ali, Entaj Ali, Moklesur Rahman and Abdul Hamid were named in the said complaint petition and that the said complaint petition was lying with the case docket. That Mohosin Sheikh was not named in the complaint petition. He deposed that he investigated both the complaint petition and the FIR side by side. He also deposed that he did not submit any final report in respect of four persons named in the complaint petition, namely Moklesur Rahman, Entaj Ali, Fazlul Haque and Mohosin Ali and he did

not submit any separate investigation report before the Magistrate in respect of the said complaint petition. But, according to him, he submitted separate report in respect of the complaint petition and that the said report was lying with the record of the complaint petition being Misc. 28/12. He confirmed that the FIR did not name any accuseds and that he arrested Jamil on the basis of a source. He also admitted in cross-examination that he did not find any eye witnesses as to the killing of the deceased. He admitted that P.W. 10-Shahin was the son of the deceased and that Shahin was employed in police department, but Shahin did not file a case on his own. He also deposed in cross-examination that he did not seize any paper in support that Khabir Uddin was a freedom fighter. He further confirmed that the piece of brown colour jacket, piece of white stripe shirt, piece of white stripe lungi and piece of blue colour scarf were seized by him.

However, he did not mention in the seizure list that the said materials were worn by the deceased. He again deposed in cross-examination that although the dead body was sent by constable Maruf, he was not made a witness in the charge-sheet and that nobody stated in Section 161 statement that Khabir had any enmity with the accuseds. He further deposed that he could not arrest accused Hamid Malitha and that he did not know whether Hamid Malitha surrendered voluntarily or he got bail from the High Court. He then deposed that accused Salam was arrested from his own house and Jamil was arrested from Jhinaidah district with the help of Kakiladah police camp under Horinakunda Police Station on 11.03.2012. That accused Salam was also arrested on 11.03.2012. He denied the defence suggestion that being influenced by the son of deceased, accuseds Salam and Jamil were compelled by torture for giving confessional

statements. He further denied that the said accuseds were in fact produced before the Court on 13.03.2012. He also denied the suggestion that Salam and Jamil were arrested on the tip-off given by P.W. 10-Shahin. But he admitted in cross- examination that he did not make the pump owner witness in the case and that he did not seize any paper in support of Khabir’s employment at the Bazlu’s pump. He denied the defense suggestion that none of the witnesses said that they saw Khabir going to the pump house. He also denied the defence suggestion that since the son of the deceased was employed in police department, this witness extorted the confessional statements of the accuseds taking his side. Upon re-call, this witness replied in cross-examination that accused Jamil Uddin Mondol was arrested from village Berbinni under Harinakundu Police Station of Jhenaidah District and that accused Salam was arrested from

his house at Goalgram village under Doulatpur Police Station, and both the accuseds were produced before the Court on 11.03.2012. In cross- examination, he identified the location of Kushtia Sadar Police Station as well as the distance of Harinakundu Police Station and he admitted that the distance between the two places of arrest was 100- 110 km. He denied the defence suggestion that he did not submit any report in the petition case filed by P.W.1 and deposed that he mentioned in the C.D. that he had submitted such report. He further admitted that he did not name the Magistrate, who recorded 164 statements, as a witness in the charge-sheet and, according to him, he did not feel it necessary to make him a witness. He further deposed in cross-examination that on 11.03.2012 at 11.55, both the accuseds Salam and Jamil were produced before the Magistrate for making confessional statements. He denied the defence

suggestion that he submitted perfunctory charge- sheet being influenced by the informant party.

P.W.12 (Sheikh Maruf Hossain) was the constable

at the police station concerned. According to his

deposition, on 08.02.2012 at 11.05, he rushed to the

shallow machine house owned by Bazlu of

Goalgram Dakkhin Char area under Doulatpur

Police Station. That Chowkider Sirajul opened the

door of the house and he found dead body of

deceased Khabir Uddin lying on a bed with scarf

being wrapped around his neck. That S.I. Sawpon

(P.W-11) prepared surathal report and this witness

took the body to Kushtia General Hospital for post

mortem by a chalan. Accordingly, he proved the said

chalan and his signature thereon as Exhibit-9/2.                            

4. Submissions: 

4.1  At the outset of the hearing, learned Deputy Attorney General, appearing for the State, has

placed the entire materials from the paper book as well as the materials lying with the lower Court records one after another and finally has made extensive submissions in favour of confirmation of the death sentences of all the three accuseds. On the other hand, learned Advocates, namely Mr. Raghib Rauf Chowdhury and Mr. Md. Ashif Hasan, have made extensive submissions in favour of the appellants in the aforesaid appeals seeking their acquittal. However, for the sake of convenience, we will refer to the submissions made by the learned Advocates for the appellants first followed by the submissions of the learned Deputy Attorney General for the State.

4.2     Mr. Raghib Rauf Chowdhury, learned Advocate appearing for the appellants-Md. Abdus Salam

Sheikh and Md. Jamil Mondol has made the following submissions:

(a)    That the conviction is entirely based on confessional statements of the appellants, although the same were not recorded in accordance with law and as such the same was not true and voluntary, particularly when one of the prosecution witnesses, namely P.W.1, has categorically deposed that accused Md. Abdus Salam Sheikh was beaten by police.

(b)    That there is huge doubt as regards the date of arrest of both the accuseds and that the accuseds were arrested at least 2/3 days before recording of the confessional statements and they were tortured in the police custody to make such confession because of the role

played by the son of the deceased (P.W.11), who was admittedly a Police constable at the relevant time.

(c)     That it is humanly impossible to arrest both the accuseds on the same day, particularly when they were arrested from two different adjacent districts which were about 110 km away from each other. Therefore, according to him, the confessional statements cannot be regarded as voluntarily confessional statements and the same cannot be the basis of any conviction, particularly when there was no eye witness to the occurrence.

(d)    Further referring to the very confessional statements of both the convicts, he submits that both the confessional statements are so similar that it may easily

be presumed that the same has been drafted by the same person. Therefore, according to him, such similarity of two confessional statements allegedly given by two accuseds cast a serious doubt about the truthfulness of the same.

(e)    By referring to a complaint petition filed by the P.W.1 (informant) few days after lodging the FIR, he submits that relevant provisions of Section 205D of the Code of Criminal Procedure were not complied with by the Courts below, particularly when no report has been submitted by the investigating officer on the said petition of complaint although the same was sent to the investigating officer by the Court below.

(f)       Further referring to the motive of killing indicating previous dispute between the

deceased and accused Md. Abdus Salam Sheikh, as revealed from the confessional statements, he submits that none of the prosecution witnesses deposed a single word before the trial Court as regards such previous enmity. Therefore, so far as truthfulness of the confessional statements of accuseds are concerned, the same casts serious doubt on themselves.

(g)    By referring to Section 342 examination of two accuseds done by the trial Court below, he submits that the examination done by the trial Court was perfunctory in nature and it even did not refer any of the circumstances appearing in evidences to the accuseds. Therefore, according to him, the accuseds have been highly prejudiced and, accordingly, the trial was

vitiated. In support of his such submissions, he has referred to the decisions of this Court in  Habibur Rahman vs. State, 18 BLC (AD)-218, State vs. Monu Miah, 54 DLR (AD)-60 and Abdul Kashem vs. State, 49 DLR- 573.

(h)    As regards confessional statements of both the accuseds, he submits that both of them have retracted their confessional statements stating therein that the same were taken by applying force and coercion on them.

(i)        Alternatively, he submits that even if the conviction against these accuseds is affirmed, the sentence should be commuted, particularly when these accuseds do not have any record of previous criminal activity and that they are

young people and have already served in jail for 10 (ten) years including 5(five) years in condemned cell.

4.3  Mr. Md. Ashif Hasan, learned advocate appearing for the appellant- Abdul Hamid Malitha, has made the following submissions:

(I) That the conviction of this appellant is merely based on the confessional statement of the two co-accuseds and as such, according to the long standing principle established by our Apex Court, the conviction against this appellant cannot sustain in the eye of law, particularly when there was no eye witness to the occurrence and that the prosecution did not have any independent evidence to substantiate the charge against him. In support of his such submissions, he has referred to some decisions of this Court in State Vs. Abdur

Rahim 10 DLR-61  and Amir Hossain Hawlader Vs. The State 1984 BLD (AD)- 193.

(II) As regards latest decision of our Appellate Division in favour of convicting an accused on the basis of confessional statement of co-accused, namely the case of Shukur Ali Vs. State, 74 DLR (AD)-11 and  Noor Mohammad Vs. State, 74 DLR (AD)-170, he submits that the facts of those cases decided by the Appellate Division and present case are highly distinguishable inasmuch as that in the said cases, the accused remained absconding for long time, but in the present case, this accused surrendered before the Court below immediately after submission of the charge- sheet. Therefore, according to him, the ratio

decided in the said cases cannot be applied in the present case.

(III) By referring to the retraction applications filed by the co-accuseds, Md. Abdus Salam Sheikh and Md. Jamil Mondol, he submits that the confessions given by them have in the meantime become retracted confessions. Therefore, the value of these retracted confessions as against this appellant is merely zero. In support of his such submissions, he has referred to a decision of our Appellate Division in  Amir Hossain Howlader Vs. State, 37 DLR (AD)-139.

(IV) By referring to the Section 342 examination of this accused as done by the trial Court below, he submits that none of the incriminating materials or circumstances appearing in evidence against this accused

has been referred to him during such examination. Not only that, he submits, even the confessional statements of the accuseds, the very basis of the conviction of this accused, were not referred to him seeking his reply. Therefore, according to him, the conviction against this accused cannot be maintained on the basis of such confessional statement of co-accuseds, particularly when the said confessional statements do not come within the purview of the definition of evidence as provided by Section 3 of the Evidence Act and that this accused did not get the opportunity to cross- examine the said co-accuseds on their alleged statements in the said confessional statements. Therefore, he submits that the entire trial as against this accused has been vitiated. In support of his such submissions,

he has referred to a latest decision of our Appellate Division in Md. Abdul Awal Khan Vs. The State, 16 SCOB [2022] AD-22.

(V)      According to him, sending the case on remand to the trial Court for doing Section 342 examination again in accordance with law will be a sheer injustice to the accuseds, particularly when they have in the meantime been in jail and condemned cell for about 10 (ten) years. Accordingly, he prays for acquittal of this accused.

4.4        As against above submissions, Mr. Harunur Rashid, learned Deputy Attorney General representing the State, has made the following submissions:

(a) That this is a case of strong circumstantial evidence as there is admittedly no eye witness to the

occurrence. By drawing this Court’s attention to the case dairy lying with the lower Court records as well as date and time of arrest of the accuseds Md. Abdus Salam Sheikh and Md. Jamil Mondol, he submits that there is no impossibility in arresting both the accuseds on the same day, particularly when Salam was arrested at 2.05 am and Jamil was arrested about two and half hours later from an adjacent district in the midnight following 11.03.2012. Therefore, according to him, since both of them were arrested in the midnight when there was no traffic on the road, it was quite possible by police to arrest them from two adjacent districts which are away from one another by 110 km. Thus, he submits that the submission of

the learned Advocate for the said two accuseds as regards time and date of arrest has no substance.

(b)       He further submits that since the arresting officer or investigating officer was not specifically cross examined by the defense lawyers on this point of date and time of arrest, the appellants cannot raise this issue before this appellate Court at all, particularly when they were produced before the learned Magistrate on 12.03.2012 i.e. within the quickest possible time. Therefore, he submits that the allegation of torture or any irregularity in arresting or producing the said accuseds before the Magistrate do not have any substance.

(c)        As regards similarity of both the confessions, learned DAG submits that

this similarity further proves that the confessing accuseds revealed the truth and this will go in favour of the prosecution, particularly when the recording Magistrate (P.W.4) deposed before the trial Court that he did not find any sign of torture on the body of the confessing accuseds.

(d)    By referring to the retraction application of the accuseds Md. Abdus Salam Sheikh and Md. Jamil Mondol, learned DAG submits that they were not even signed by the accuseds. Rather, they were the product of an advocate representing them, who merely filed an application of retraction by signing it himself and the same did not come through the proper jail authority. Therefore, such retraction application

should not be treated at all as retraction application of the accuseds.

(e)          By referring to the Section 342 examination of accuseds- Salam and Jamil, he submits that their confessional statements were referred to them during Section 342 examinations. Therefore, to that extent, no illegality has been committed. In support of his such submissions, he has referred to the case of  Khalil Mia Vs. State, 4 BLC (AD)- 223.

(f)             That during the entire trial, all the three accuseds saw and heard the entire evidences produced by the prosecution and their advocates extensively cross- examined the prosecution witnesses before their very eyes in Court. Therefore, they cannot raise the point of

prejudice as regards Section 342 examination on the ground that those evidences were not referred to them during such examination.

(g)    By referring to the latest decisions of our Appellate Division in Shukur Ali Vs. State, 74 DLR (AD)-11 and  Noor Mohammad Vs. State, 74 DLR (AD)- 170, learned DAG submits that our Appellate Division has in the meantime repeatedly held that an accused may be convicted on the basis of confessional statement of co-accused, if such confession is believed to be the true. Therefore, according to him, accused Abdul Hamid Malitha also does not have any case before this Court for acquittal.

(h)    That defect or irregularity, if any, in Section 342 examination done by the

trial judge cannot be attributable to the fault on the part of the prosecution and such defects are mere procedural irregularity and the same can be cured by sending the case on remand for doing Section 342 examination again. In support of his such submissions, he has referred to the cases decided by our Appellate Division in  Sohel Vs. State, 63 DLR (AD)-125 and the majority decision of our Appellate Division in Criminal Appeal No. 40 of 2008.

5. Scrutiny of Evidences: 

5.1  There is no dispute in this case that the deceased is valiant freedom fighter Khabir Uddin and, according to the post mortem report, he ended up with an unnatural death by throttling and/or blunt trauma on the head which were

ante-mortem and homicidal in nature. The identification of the dead body of the deceased was also not disputed in this case P.W.1 and P.W.2 deposed before the Court that they saw the dead body in the next morning in the motor house owned by Bazlur Rahman and that the neck of the deceased was tied up with scarf. The injuries found in the post mortem report (Exhibit- 3) also are supported by surothal report findings (Exhibit-2). The said surothal report has been proved by various prosecution witnesses, namely P.W.1, P.W. 2, P.Ws. 7-11and the doctor (P.W. 3), who had conducted post mortem on the dead body, also proved the said post mortem report and findings therein. Therefore, it has been proved by the prosecution beyond reasonable doubt that this is a case of killing of valiant freedom fighter Khabir Uddin.

5.2  However, admitted position is that nobody saw as to who killed the deceased as the occurrence took place in a dreadful night at Chorer Math in a motor house. The details as to the manner of occurrence were disclosed from the confessional statements of accuseds Salam and Jamil. Therefore, if the prosecution can establish that those two confessional statements are voluntary and   true in nature, the same may be used against the confessing accuseds and the non- confessing co-accused (to some extent) for their convictions. Besides, since the copy of the petition of complaint was filed by P.W.1 (informant) was sent to the investigating officer, no complaint case was instituted or registered. Thus Section 205D of the Code does not have any manner of application in this case. This being so, let us first examine whether the said confessional statements as well as other

evidences on record have established the guilt of the accused Salam and Jamil.

Md. Abdus Salam Sheikh and Md. Jamil Mondol:

5.3  It may, at the outset, be noted that the said confessional statements of the said two accuseds were proved by the Magistrate, who recorded the same, as P.W.4. Jamil’s confession was proved as exhibit-4 and Abdus Salam’s confession was proved as exhibit-5. The signatures of the accuseds as well as the Magistrate concerned were also identified by the said Magistrate before the trial Court and they were also marked by the trial Court as exhibits. The said confessional statements (Exhibit-4 and

5) are reproduced below:

Confession of Jamil:

Avwg ivRwgw¯¿i KvR Kwi| NUbvi cªvq 24/25 w`b Av‡M wbnZ gyw³‡hv×v Lwe‡ii fvwZRv Rv‡K‡ii mv‡_ Avgvi gvgvZ fvB Avãym mvjv‡gi ‡Mvj‡hvM nq| Qvjvg Rv‡Ki‡K nvmyqv w`‡q 3/4 Uv †Kvc

gv‡i| Lwei GB wb‡q _vbvq bvwjk w`‡j ‡mLv‡b kvwjk nq| kvwj‡k Avãym mvjv‡gi 10000/- UvKv Rvwigvbv nq| wKš‘ Zvi ci I Lwei (wbnZ) mvjvg‡K Mvwj MvjvR K‡i| Lwei mvjv‡gi ”vPvi cvwb c ¤ú PvjvZ| weavq Lwei mvjvg‡K eKvewK Kivq ‡m e‡j Avgvi PvPvi Lv‡e, ci‡e Ai Avgv‡K eK‡e Zv n‡e bv| ‡m cÖwZ‡kva wb‡Z hvq|

ZLb Avmvgx Qvjvg, nvwg`, wcZv-bwRi gvwj_v, Giv hyw³ K‡i| Avwg ZLb wS‡b`v‡Z kªwg‡Ki KvR KiwQjvg| Qvjvg Avgv‡K †dvb K‡i Ges wRÁvmv K‡i Avwg evox‡Z Avme wKbv| Avwg ewj Kv‡Ri Pvc Av‡Q c‡i Avme| AZtci 5/6 w`b c‡i Avgvi †g‡q Amy¯’ n‡j Avwg evox P‡j Avwm| Qvjvg NUbvi w`b (7/2/12 Zvwi‡L) ivZ 8/9

Uvi w`‡K Avgv‡K Wv‡K Ges k¨v‡jv g¨vwk‡bi HLv‡b P‡ii gv‡V †h‡Z ej‡j Avwg hvB| †mLv‡b ‡h‡q Qvjvg, nv‡g`, Lwei‡K (gyw³‡hv×v) †`wL| Qvjvg gyw³‡hv×v Lwei‡K k¨v‡jv †gwk‡bi N‡i †h‡q Nygv‡Z e‡j| ZLb Lwei N‡i †h‡q ï‡q c‡o| LvwbK c‡i Qvjvg H N‡i cª‡ek K‡i| 5/10 wgwbU gZ c‡i nv‡g` I N‡i hvq| Avgv‡K Iiv Wv‡K| †h‡q ‡`wL nv‡g` Lwei (gyw³‡hv×vi)n v‡Z I gyL

†P‡c a‡i‡Q| Avgv‡K e‡j cv ai‡Z Avwg cv awi| Qvjvg Mjvq gvdjvi w`‡q †cwP‡q a‡i †g‡i †d‡j| Avgiv P‡j Avwm| Avwg c‡ii w`b wS‡b`v P‡j hvB| nvwg` Avgv‡K a‡i wb‡q Av‡m| GB Avgvi Revbew›`|  

Confessional of Md. Abdus Salam:

Avwg Avgvi evevi mv‡_ Kv‡Vi e¨emv KiZvg| gyw³‡hv×v Lwei Avgvi PvPv eRjyi cvwbi cv¤ú PvjvZ| Avwg gv‡V Nvm KvU‡Z †M‡j gyw³‡hv×v Lwe‡ii fvwZRv RvwK‡ii mv‡_ Avgvi gvivgvwi nq| Avwg

nvmyqv w`qv 4/5 Uv †Kvc w`‡j Ii kixi ‡K‡U hvq| Lwei _vbvq

bvwjk w`‡j _vbvq kvwjk nq| ‡mLv‡b Avgv‡K 10,000/- UvKv Rwigvbv K‡i| ZviciI Lwei Avgv‡K MvwjMvjvR Ki‡Z _v‡K| Avgvi Rwg‡ZI wVKgZ cvwb w`Z bv| ZvB Avwg Ii Dci cÖwZ‡kva ‡bIqvi wm×vš— wbB| Avwg Avgvi cÖwZ‡ekx nv‡g‡`i mv‡_ K_ ewj

Ges Lwei‡K †g‡i †djvi wm×vš— wbB| AZtci Avwg Avgvi dzdvZ

fvB Rv‡g‡ji mv‡_ †gvevB‡j K_v ewj I Zv‡K MÖv‡g Avm‡Z ewj| I Avm‡Z A¯^xKvi K‡i| 2/3 w`b ci Rvwg‡ji †g‡q Amy¯’ n‡j 07/2/12 Zvwi‡L Rvwgj evox Av‡m| H w`b ivZ 08 Uvi w`‡K Lwei

gv‡V hvq| Zvi c‡i Avwg nv‡g‡`i wb‡q H gv‡V cvwbi cv‡¤úi Kv‡Q

hvB| Rvwgj‡K ivZ 8.45 Uvi w`‡K †dvb w`B| Rvwgj 9.00 Uvi

w`‡K H Lv‡b †cuŠwQ‡j Avgiv K_v ewj| Lwei‡K cv‡¤úi N‡i †h‡q Avwg Nygv‡Z ewj| Lwei N‡i †h‡q ï‡q c‡o| wKQy¶b c‡i Avwg ‡mLv‡b hvB| ivZ 10.00/11.00 Uvi g‡a¨ Avwg nvwg`‡K WvwK| nvwg`yj Lwei (gyw³‡hv×vi) nvZ I gv_v †P‡c a‡i| Rvwgj Ii cv

†”‡c a‡i| Avwg Ii Mjvq _vKv gvdjvi w`‡q ‡cwP‡q a‡i duvm jvwM‡q nZ¨v Kwi| Lwei gviv ‡M‡j Avwg mn mevB evB‡i Avwm| Avwg GKwU we‡kl Kvq`vq evnxi ‡_‡K wfZ‡ii wQUwKwb AvU‡K w`B| Avwg gyw³‡hv×vi RvbvRvq Ask MÖnb Kwi| Avwg Ab¨vq K‡iwQ

¶gv cÖ_©bv Kwi| GB Avgiv Revbe›`x|  

5.4  It appears from the case dairy and the said confessional statements that accused Salam was arrested at 2.05 am, which is technically on

12.03.2012, i.e. the midnight  followed by 11.03.2012, and accused Jamil was arrested after two and half hours from an adjacent district, namely Jhinaidah. Since the distance between two places of arrest is admittedly about 110 km, learned advocate for the appellant has posed a doubt that such arrest of two persons from two different districts within two and half hours was not humanly possible.

5.5  Admittedly, they were arrested at midnight following the day of 11.03.2012. Salam was arrested at 2.05 am from his house in Kushtia district and Jamil was arrested at about 4.35 am from Jhenaidah district with the help of the local police of Jhenaidah, and both of them were produced before the Magistrate in the morning at about 11.00 am on 12.03.2012. Since the time of such arrest was midnight and it is quite understandable that at a place like Kushtia and

Jhenaidah the traffic would be very minimum at that time, particularly on the highways, we do not find any substance in the submission of the learned advocate that it was not humanly possible to arrest both of them from two different adjacent districts within a span of time of two and half hours.

5.6  As regards alleged torture or coercion, we have checked the very confessional statements of both the accuseds, wherein the Magistrate categorically stated that he did not find any such sign of torture. He gave specific memo in the said confessional statements to that effect. In cross- examination of the said Magistrate before the trial Court, such position could not be shakened by the defense lawyers. Therefore, so far as the time of arrest of the accuseds, their production before the Magistrate and recording of their confessional statements are concerned,

we have not found any major irregularity which may be regarded as vitiating the said process of recording confessional statements as well as the said very confessions. Therefore, we have no option but to hold that the said accuseds gave such confessional statements voluntarily.

5.7  Now, the question of truthfulness of the said confessional statements. It appears that in fact the contents of both the confessional statements are more or less similar. However, this similarity itself cannot suggest that the same was drafted or dictated by same person before making such confessional statements as suggested by the learned advocate appearing for the accuseds. In the retraction application, although filed by a lawyer, it has not been stated that the said confessional statements were drafted or dictated by somebody else and that the accuseds just copied the same. Therefore, it appears that this

submission of similarity of the confessional statements as well as drafting of the same by the same person is an afterthought argument as devised by the learned advocate appearing for the appellants. Therefore, we cannot give too much attention to the said submission as the same does not seem to have any substance in the facts and materials on record. On the other hand, it appears that the manner of occurrence, as stated in the said confessional statements and supported by the surothal report as well as the post mortem report, have been duly proved by the witnesses. Therefore, we have no option but to hold that the contents of the said confessional statements are also true. Accordingly, we hold that the said confessional statements of the said two accuseds are voluntary and true in nature. Therefore, the said two confessing accuseds may be convicted

solely on the basis of the said confessional statements with minimum corroborative evidences.

Abdul Hamid Malitha:

5.8  Now, the question is whether on the basis of the   said confessions of the two co-accuseds, the conviction on Malitha may be sustained. It is true that we have long line of decisions of our Apex Court that the confession of co-accused is not a substantive piece of evidence and the same does not come within the purview of the definition of the term ‘evidence’ as provided by Section 3 of the Evidence Act. Therefore, it has been consistently held by the superior Courts of this subcontinent that an accused cannot be convicted on the basis of such confessional statement of co-accused. Rather, such confessional statement of co-accused may be