In the Supreme Court of Bangladesh

              High Court Division

 Present:

Mr. Justice Sheikh Hassan Arif And

Mr. Justice Biswajit Debnath

Death Reference No.77 of 2017

The State

Vs.

Md. Abul Kalam (Absconding).

      ...Condemned-Convict.

With

Criminal Revision No. 582 of 2018

Md. Abul Kalam Howlader

                     .. Informant-petitioner.

                     Vs.

The State and others

              ..............Opposite parties.

Mr. M. Bulbul Abu Saiyed, Advocate

  …For the informant-petitioner in Criminal Revision No. 582 of 2018.

Mr. Muhammad Hasibur Rahman, Advocate           

.......For the Opposite Party Nos.

4, 5, 6, 7, 10, 11 and 12 in Criminal Revision No. 582 of 2018.

                     Mr. Md. Hafizur Rahman Khan with

                     Mr. S.M. Shafiqul Islam, State Defence                               Advocate

…for the convict Md. Abul Kalam (Absconding).

                     Mr. Shaheen Ahmed Khan, D.A.G. with

Mr. Mohammad Jahangir Alam, A.A.G.  with

Mr. Zahid Ahammad (Hero), A.A.G. with

Mr. Mohammad Humayun Kabir, A.A.G.

                     …..For the State.

Heard on 14.03.2023, 14.05.2023, 15.05.2023, 21.05.2023, 22.05.2023, 28.05.2023, 29.05.2023, 30.05.23. 04.06.2023 and 05.06.2023  Judgment on 11.06.2023, 12.06.2023 and 13.06.2023. 

SHEIKH HASSAN ARIF, J:

1. The aforesaid Death Reference No.77 of 2017 and Criminal Revision No.582 of 2018 have arisen out of same incident. When this bench was hearing the death reference, the existence of aforesaid criminal revision, pending before the High Court Division, came to our attention. The same was filed by the convict-Md. Abul Kalam against judgment of acquittal in the case filed by him as informant out of the same incident of killing his wife and a lodging master in his house.
2. Background Facts:

1.   Short background facts are that convict-Md. Abul

Kalam, initially, lodged an FIR on 04.10.2001 alleging murder of his wife and a lodging master

in his house by 13 (thirteen) FIR named accuseds and others on the night following 03.10.2001. Accordingly, the same was registered as Morelgonj P.S. Case No. 4 dated 04.10.2001, corresponding to G.R. Case No. 279 of 2001, under Sections 302/34 of the Penal Code. However, on the first day of the investigation, the FIR story of Kalam’s case took a u-turn as his child-daughter, Nupur (aged 3 years and six months at that time), disclosed that her father (Md. Abul Kalam) had killed the victims. Subsequently, on 07.10.2001, the father of the deceased lodging master (Md. Moshiur Rahman) lodged another FIR, being Morelgonj P.S. Case No. 12 dated 07.10.2001, alleging that Md. Abul Kalam had killed his own wife and the son of the informant. The case filed by Kalam ended up with final report, being Final Report No.57 dated 28.11.2001. However, the

subsequent case, as filed by victim-Moshiur’s father, ended up with charge-sheet against Kalam, being Charge-Sheet No. 290 dated 10.12.2001 under Section 302 of the Penal Code, which ultimately went for trial and numbered as Sessions Case No.14 of 2002. On the other hand, Kalam filed naraji petition etc. against final report in his case which, ultimately, ended-up with Criminal Misc. Case No. 1672 of 2008 before the High Court Division, and, with the interference of the High Court Division, Kalam’s case was also made ready for trial and numbered as Sessions Case No.361 of 2013. However, the said case filed by Kalam ultimately ended up with acquittal of all the 13 (thirteen) accuseds. The case against Kalam, namely, Sessions Case No. 14 of 2002, ended up with conviction and death sentence against him, which gave rise to the aforesaid death reference before this Court.  

2.   As stated above, Kalam filed aforesaid Criminal Revision before the High Court Division against the order of acquittal in the case filed by him and obtained Rule. Therefore, by the order of the Hon’ble Chief Justice, the said criminal revision has also come up before this Court for hearing along with the aforesaid death reference. Thus, both the matters have been heard together and the same are to be disposed of by this Common judgment.
   3.      Cross Case:

1.   At the outset, it may be noted that this case is one of few unique examples of cross-cases, namely that the informant himself became an accused in the cross-case filed by the father of one of the victims. Mr. Mohammad Jahangir Alam, learned Assistant Attorney General, has cited two decisions of our superior Courts wherein some guidelines have been given for

simultaneous trial of cross cases. In this regard, the case cited by him, namely Nur Elahi Case [18 DLR (SC)-474] is pertinent to be mentioned here as because the best procedure for disposal of cross cases has been given in the judgment therein. In this regard, paragraph Nos. 7, 8 and 9 of the judgment delivered by his Lordship Mr. Justice S.A. Rahman may be reproduced here:

“7.  The question how the two cases should be proceeded with so as to cause no prejudice to either party, is one of difficulty in the circumstances mentioned and this caused us some concern. The learned Advocates General suggested that we might issue directions similar to those embodied by the Lahore High Court in the unreported case cited above. The learned Judges observed therein that it would be desirable, should the trial Judge decide to hear first the case based on the Police version, to summon the witnesses supporting the counter version as Court witnesses under section 540 A of the Code of Criminal Procedure, so that the

record contains all the relevant evidence. Similar procedure was directed to be adopted during the trial of the complaint case. After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the Police chalan, if they were not already examined on behalf of the complaint, as Court witnesses under Section 540 A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under section 494 of the Code of Criminal Procedure, in the police chalan case. It would be easy for him to take such a decision after the

whole evidence has been thrashed out in the first trial. If the first case ends in an acquittal, he might still have to consider whether the Police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record at the earlier trial, by way of cross- examination of the relevant witnesses, as permitted by law.

8. This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the Police chalan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examination the witnesses for the prosecution.
9. Another difficulty may arise in respect of conducting the case on behalf of the complainant in the first trial. Normally, of course, under the law, the Public Prosecutor is to be in charge of the case, even if the trial is based on a private

complaint. The Public Prosecutor, however, in the special circumstances of the case, could permit the complainant’s Counsel to conduct the proceedings on his behalf under his direction. Alternatively and that may meet the situation more adequately, Government in the interest of justice, could notify the complainant’s Counsel, as a special Public Prosecutor, for the conduct of that case alone. This would ensure full justice to the complainant and he would not be left with any sense of grievance. He is at present challenging the bona fide of the Police investigation. We, therefore, allow the appeal and direct that the trials will now be taken up by the trial Judge in accordance with the observations made above”. 

2.      However, in the above Nur Elahi’s Case, the matter came up before the Supreme Court of Pakistan during continuation of the trial and as such it was possible for their Lordships to declare such guidelines, in particular to dispose of the complaint case first followed by the police

case. But in the cross-cases in hand, such procedure was not possible at the relevant time as because interference by the High Court Division in the above mentioned criminal miscellaneous case came up at the fag-end of the trial of the case against Kalam, although, from that stage, both the cases were tried simultaneously to some extent.

3.   In disposing of the aforesaid cases, we will first take up the case filed by Kalam, namely, the Criminal Revision filed by Kalam before the High Court Division against the order of acquittal inasmuch as that if it is found that the said criminal revision has merit, it will have serious impact on the disposal of the death reference. Accordingly, we will determine the merit of the said criminal revision first followed by the said death reference.

4. Md. Abul Kalam’s Case:

1.   As stated above, Kalam’s case started with lodging of the aforesaid FIR on 04.10.2001, being Morelgonj P.S. Case No. 4 dated 04.10.2001, corresponding to G.R. Case No.279 of 2001, under Sections 302/34 of the Penal Code naming 13 (Thirteen) accuseds alleging, inter alia, that he had enmity and previous case against the FIR named accuseds and, in such case, his wife Sultana Yeasmin was informant. That since the said case was charge-sheeted against the accuseds, the said accuseds broke into his house on 03.10.2001 at 11 pm being armed with Da, stick, Chinese axe, iron rod etc. and asked him to open the door of the western side of the house. Since he did not open the door, they broke the grill of window, entered the house and started beating him and his wife. He then ascended to the upper store of the house

(পাটাতন) to save his life. That on the order of accused No.6 (Abdur Rahman), accused No. 1 (Delower) chopped his wife with ‘Da’ (a sharp

house-hold chopping device) on the forehead and caused severe injury. That accused No.2 gave a blow with Chinese axe on the left side of the head of his wife and caused bleeding injury. That accused No.3-Sarwar gave a blow on the front side of his wife’s head with ‘Da’, and other accuseds gave indiscriminate beating on his wife causing with hematoma injuries. As a result, his wife fell on the floor unconscious. That when his lodging master, Moshiur Rahman (14), requested the accuseds not to beat his wife as such, accused No.7 gave him a blow on the left side by a ‘Da’ and accused No.5 (Yakub) gave another blow on his head by a ‘Da’ and caused bleeding injury. That, as a result, his wife and lodging master died instantly at the place of

occurrence and, thereafter, accused Nos. 4 and 8 to 13 looted away some articles from his house. That he saw the incident through the hole from upper store (f¡V¡ae).  As he started screaming, the nearby people came with haricane and torchlights, but the accuseds fled away to different directions. That while the said accuseds were leaving, witness Abul Hossain, Abdul Latif Howlader, Harunur Rashid, Lal Miah and some others saw them in the light of haricane and torchlight. That at the time of occurrence, the haricane was switched on in his house and he identified the accuseds in the light of the said haricane.  

2.   As his case took u-turn on the disclosure by his daughter during investigation, the investigating officer submitted final report No. 57 dated 28.10.2001 stating therein that the case was a

false one mainly relying on the disclosure of Kalam’s daughter Nupur and Kalam’s extra judicial confession. Being aggrieved by such Final Report, Kalam filed naraji application. Accordingly, the learned Magistrate directed O.C. concerned to conduct enquiry and report. The report of Officer-in-charge also ended up against Kalam with the view that Kalam’s case was a false story. Kalam then filed second naraji application, but the same was rejected by the Magistrate and final report filed by police in his case was accepted. Kalam then preferred criminal revision before the learned Sessions Judge concerned, being Criminal Revision No. 29 of 2003, and the said criminal revision was allowed. Thereupon, the learned Sessions Judge gave direction for holding judicial enquiry. Accordingly, Judicial Magistrate, Khandaker Nazmul Huda Shamim, was entrusted with the

said enquiry, who filed similar report holding the view that Kalam’s case was a false one. Accordingly, the same was ‘kept filed’  (e¢bS¡a). Being aggrieved, Kalam again preferred criminal revision before the Sessions Judge, but the same was rejected. Kalam then approached the High Court Division with Criminal Miscellaneous Case No. 1672 of 2008, wherein, a Division Bench of the High Court Division, vide judgment and order dated 16.06.2008, quashed the judgment of the learned Sessions Judge dated 28.10.2007 in Criminal Revision No. 196 of 2006 upon making the Rule absolute and gave the following direction:

“The learned Magistrate, first Class, ‘Ga’ Anchal, Bagerhat, is directed to dispose of the judicial enquiry report dated 28.08.2006 afresh, in presence of the contending parties, in accordance with law and in the light of observation made above and to pass an appropriate legal order.”

3.   Pursuant to the said High Court order, another judicial enquiry was ordered by the Magistracy concerned and, accordingly, one First Class Magistrate, Muntasim Billah, was entrusted with the said judicial enquiry who also recorded some statements of the witnesses. But before any report in the said second judicial enquiry, the Senior Judicial Magistrate concerned took cognizance of the case by referring to the High Court judgment in the above mentioned miscellaneous case and sent the case to the Sessions Judge upon making the case ready for trial. Thereafter, Kalam’s case was registered as Sessions Case No. 361 of 2013 before the learned Sessions Judge and was sent to the same Court, namely, Additional Sessions Judge, Second Court, Bagerhat, before which the case against him was pending at the fag-end of the trial.

Depositions of the Witnesses (Kalam’s Case):

4.   During trial of Kalam’s case, nine witnesses (P.W.1 to P.W.9) were produced on behalf of the prosecution side, who were, accordingly, examined and cross-examined by the parties. Interestingly, accused No.7 in Kalam’s case deposed therein as P.W.1. After recording of evidence, all the accuseds were examined under Section 342 of the Code of Criminal Procedure and they claimed themselves innocent and refused to give any witness in their defence. After completion of the trial, the Second Court of Additional Sessions Judge, Bagerhat passed the impugned judgment and order dated 07.05.2017, thereby, acquitting all the 13 (thirteen) accuseds. Being aggrieved by the said judgment of acquittal, Kalam preferred the aforesaid Criminal Revision before the High Court Division of the

Supreme Court of Bangladesh and obtained the aforesaid Rule.

5.   Before addressing Kalam’s case on merit, let us first describe, in short, the material parts of the depositions of prosecution witnesses (P.W.1 to P.W.9) in his case.

P.W.1 (Md. Jalil Howlader):  As  stated above, although this witness was accused No.7, he deposed as P.W.1 mysteriously. According to his deposition, Kalam was his full brother and victim Sultana Yeasmin was his sister-in-law (wife of Kalam) and the name of his niece was Nupur Akter, who was aged three years, six months and twenty three days during the occurrence. That his brother was in police job, but he was at Kustia at the time of occurrence and used to say that he had retired. That on the day of occurrence on 03.10.2001, his brother was at his house and this witness was at his work in

his maternal uncle’s trawler. That after 5/6 years, his brother asked him to depose as per his instruction so that he and his maternal uncles could be saved. Accordingly, he deposed before the Magistrate that he, along with his maternal uncles and cousins, broke into the house of Kalam and chopped his sister-in-law and that his brother resisted and they beat his brother as well. But, according to him, the real incident was that his brother wanted to have the entire land, which his father asked to give to this witness. That his maternal uncles divided half of the property in favour of this witness which prompted his brother to kill his wife out of anger and, consequently, his brother went to police station in the early morning with his daughter Nupur and filed the said case against this witness, his father and maternal uncles, in total thirteen. That when the police came for investigation, Nupur said that her father had killed her mother and threw the Da (local

cutting device) into a pond. That the said Da was recovered and police filed case against Kalam upon filing final report against this witness and others. That during continuation of the case, the maternal uncles had beaten this witness and broke his four teeth. That this witness then gave false deposition on the instruction of his brother. This witness was not cross-examined by the accused as the learned advocate for them was absent.

P.W. 2 (Abul Hossen Bashar): This witness was the father of the lodging master (victim). According to his deposition, he got the news of incident on 04.10.2001 at 8 am. Accordingly, he rushed to the place of occurrence and, on his way there, he saw many people. That his son was a lodging master at

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Kalam’s house. That at about 10-102 , police came

along with Kalam and the said Nupur (daughter of Kalam aged three years) on the lap of Kalam. That

people entered the house along with police and found the dead body of Moshiur lying up-side-down with chopping injuries on the head and also found victim Sultana Yeasmin lying on the floor. That police then started investigation and asked the said daughter-Nupur in front of all and, upon being asked two/three times, she disclosed that her father had chopped her mother and brother (i¡Cu¡). When asked as to by what materials the chopping was done, she answered that it was done by a Da. Police then asked Kalam about it, who, after long gap, admitted that he had committed the killing because of his quarrel with his parents over the house. That when asked as to what he did with the said Da, he said that it was thrown into the pond in front of the house. Accordingly, men named Awal, Harun and someone else got into the pond and Awal recovered the Da and, at that time, about 300/400 people were present. That the police then detained Kalam, sent

the bodies for post mortem and, after burial of the dead body of his son, this witness filed the case against Abul Kalam.

In cross-examination by the accuseds, he deposed that he filed separate case for the killing of his son and, accordingly, he disclosed the number of the said case and deposed that the said case was pending in Court as Sessions Case No. 14 of 2002. That in that case he implicated Kalam as accused. This witness also confirmed that he made the said statement during investigation of the same case as he has made before the Court.

P.W. 3 (Hazi A. Latif Howlader) was a neighbouring witness. He deposed that on 03.10.2001, the incident took place. That on that day, at about 10:30/11:00, the informant (Kalam) called him and told him that his wife and lodging master were killed. When this witness asked as to who did it, Kalam replied that his father and brother did it. That Kalam

then asked for a trawler from him to go to Morelgonj which he refused to give. That in the next morning, many people came, but no one entered the house of

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Kalam. That at about 10-102 , people entered the

house with police. That after entering the house, police asked Kalam’s daughter-Nupur as to who killed her mother. Nupur then replied that her father did it. That she was again asked as to who killed the lodging master. She then replied that her father did it by chopping with a Da and that her father threw away the said Da in the pond. That police then asked some people to search for the Da and the said Da was recovered. That being asked, Kalam confessed that he had killed his wife and lodging master by chopping with the said Da. Police then took the said two dead bodies to Bagerhat and arrested Kalam. That Police, subsequently, recovered and seized one read coloured petticoat, one piece of blood stained green blouse, one stripe

lungi and one black genji by seizure list. This witness then identified the photocopy of the said seizure list as Exhibit-1 and his signature thereon as Exhibit1/1. He also identified the seized materials as Material Exhibit-I series.

In cross-examination by accuseds, this witness confirmed that when the daughter of Kalam disclosed about the killing of her mother and lodging master by her father, this witness was present. That this witness was also present when, after recovery of Da, Kalam admitted that he had killed his wife and lodging master and, at that time, some other village people were also present. That at that time, the father of lodging master was also present who came after learning about the death of his son.

Lal Miah (P.W.4): This witness was also a neighbouring witness. He deposed that the incident took place on 3.10.2001 at night when Abul Kalam

called him through window. According to him, Kalam told him that his wife and lodging master were chopped by his brother and father. That in the next morning, he saw people going there and this witness followed them, but no one dared to enter the house. He then heard that police came and with police, he entered the house along with other people. That police then asked Kalam’s daughter- Nupur as to who killed her mother. In reply, she said that her father had chopped her mother and lodging master with a Da and that the said Da was thrown away in the pond. When asked by police, Kalam admitted that he had chopped his wife and lodging master with Da because of the dispute with his father and mother. That, thereafter, as per Kalam’s information, police recovered the said Da from pond and sent the said dead bodies for post mortem followed by arrest of Kalam.

In cross-examination, this witness deposed that when police asked Kalam’s daughter and Kalam, this witness, along with some others including P.W.2 and P.W.3, were present. That when Kalam’s daughter disclosed that her father had killed her mother and lodging master, this witness was present at that time. That when after disclosure by Kalam’s daughter, Kalam admitted the crime and this witness was present there.

Md. Abul Kalam Howlader (P.W.5): This witness was the informant of the case. According to him, the incident took place on 03.10.2001 at 11 O’clock at night. That Delower, Sarwar, Saleh Talukder, Yakub, Bazlur Rahman, Jalil Howlader, Jabber Howlader, Rezaul Mridha, Kamrul Islam, Jahangir Rahman Howlder and Rejaul, in total 13 people (two absconding, one had died), are the accuseds. That on the date and time of the occurrence, accused Saleh Talukder asked him to open the door, but

when he refused, the said accused broke the window by a Crowbar (Shabol). That accused Jalil opened the door of western house and all the accuseds entered the house. That this witness then ascended to the upper store  (f¡V¡ae)  with his child daughter-Nupur for safety. That two days before the occurrence, accused Jalil and Delower had beaten his wife and broke the knee and because of that she could not ascend to the upper store. That he started screaming ‘dacoit...’ ‘dacoit...’ from the upper store. That on the order of accused Rahman, accused Delower put pistol on the head of Jalil and asked him to chop the wife of this witness. That accused Jalil then chopped his wife below the right elbow. Then accused Sarwar chopped his wife on the right side of the head with a Da. That at that time, lodging master Moshiur was present and when the said lodging master requested accused Talukder by grabbing his leg not to do further chopping, accused

Yakub chopped him on the head with a Da. That as Moshiur fell on the floor, accused Bazlur Rahman chopped him on the right side of the forehead. That when his wife begged mercy for life, accused Saleh Talukder took a Da from the hand of accused Sarwar and chopped his wife on the right hand and cut her five fingers. Then accused Kamrul took the Da from accused Yakub and chopped on the back of Moshiur’s head. That on hue and cry of this informant, his sister Ranjida Yeasmin, Rubi Sultana, P.W.3, P.W.4 and other people rushed to the spot. That with the help of these witnesses, the informant went to the Morelgonj Police Station and lodged the said FIR. He, accordingly, proved the said FIR as Exhibit -2 and his signature thereon as Exhibit-2/1. That before going to the police station, he visited Latif’s (P.W.3) house in order to borrow the trawler so that he could take his wife and Moshiur to the hospital, but Latif refused to give trawler. That he

then went to the police station along with his daughter on foot, whereupon at about 7/8 in the morning, officer-in-charge asked him to write the FIR. That, thereafter, police visited his house at about 11 in the morning, recovered the dead bodies of his wife and Moshiur, prepared surathal report and sent the dead bodies to hospital for post mortem. That when he visited the police station on 05.10.2001 at 5.50 in the afternoon to bring the dead body, the O.C. of police station attested him under Section 54 vide G.D. No. 134 dated 05.10.2001 and produced him in Court. That, thereafter, he was in jail for eleven months and twenty two days and was released on bail. That subsequently, he was made accused in another case filed by the wife of accused Saleh Takukder and he was in jail for about one year and the said case was Nari Shishu Case No. 429 of 2005. That being released on bail, when he visited his house, he was again made accused by a relative

of accused Sarwar on the allegation of possession of counterfeit notes, being G.D. No. 68/03, and he was arrested again and remained in jail for 27 months. That after bail, when he went to High Court, accused Delower and Nannu had kidnapped him and took him to Tongi Police Station of Gazipur and then he was beaten there at the house of one Delower, the nephew of accused Bozlu, and they broke his hand and leg. That accused Bozlu also had him arrested in a case filed at the instance of his niece Nurunnahar and he was in jail for 2 months 26 days. That while in custody, he made application to the Magistrate and, on his such application, one Magistrate Enamul Huda Shamim had recorded statement of his daughter Nupur and, in her such statement, her daughter disclosed the names of the accuseds as the killers of his wife and Moshiur. This witness then identified accuseds Jalil and others. According to him, the brother of accused Delower

was O.C. of Khulna Navel Camp and the aforesaid cases against him were filed at his instance. That they threatened witnesses of Kalam so that they could not give any evidence.

In cross-examination from all accuseds, he admitted that he was in police job and because of this case, he was forcefully retired. He further admitted that all the accuseds in his case were his relatives. He again deposed that he filed the case at 9.15 on 04.10.2001 and the F.I.R was computerized one. That he computer-composed the FIR before going to the police station, but he could not say as to by whom he did it. He admitted that the houses of one Goni, Rashid, Hemed, Rafique, Shakayet, Abul Kalam, Nuru Sarder, Saleh Munshi and Jamal were on the western side of his house and that there was no house on the eastern side and there was a cannel on the southern side and after the cannel, the houses of Al Amin and others were situated. That on

the north side of his house, there was vacant land and after that there were some houses. According to him, he read the FIR after computer typing. He, however, admitted that he did not mention in the FIR that accuseds Jalal and Delower broke the knee of his wife two days before the occurrence, but he mentioned about the case as G.R. 175 of 2001 filed by his wife. That he also did not mention in the FIR that his wife could not ascend to the upper store because of her broken knee and that he could not mention that he screamed dacoit..., dacoit.... In cross-examination, he further admitted that he did not mention in the FIR that after taking Da from accused Sarwar, accused Delower chopped his wife and cut three fingers or that by taking da from accuseds Kamrul, gave a da blow on Moshiur’s head or that on his screaming, his sister Ranjida Yeasmin and other people rushed to the spot or that pistol was put on Jalil’s head on the order of

accused Rahman or that Jalil chopped his wife below the elbow of right hand. However, he deposed that he mentioned in the FIR that Sarwar had chopped on the head of his wife and that Moshiur grabbed the leg of accused Saleh Talukder and requested him not to chop anybody. He, however, admitted that his house did not have electricity, but he mentioned in the FIR that he had identified the accuseds in the light of haricane. He also deposed that since he closed the door of upper floor, the accuseds could not ascend to the upper floor and he also deposed that his three years old daughter Nupur was with him on the upper store. He also deposed that on his screaming, neighbours Latif (P.W.3), Abul Hossen, Sultan Gani, Ranjida Begum, Rubi and others rushed to the spot and he mentioned it in the FIR. He further deposed that the father of Moshiur filed case against him in respect of killing of Moshiur, being Sessions Case No. 14/02,

and the said case was pending. But according to him, the said case was filed on the instruction given by one Aziz Military, brother-in-law of accused Delower. He also admitted that he went to the police station to file case along with his daughter and that the police station was 10 km away and he went there on foot and at that time there was no people on the road. According to him, he went to the police station after writing the FIR, and, after lodging of the FIR, police came to his house along with him and his daughter. However, according to him, police did not ask him anything and police also did not ask anything from his daughter. He denied the defence suggestion that when police asked his daughter politely, his daughter disclosed that he had killed her mother and Moshiur and threw away the da in the pond or that the said da was recovered from pond or that he pressurized his father to write off all the land in his favour or that his father refused to give him

entire land depriving his brother or that since his maternal uncles were not in his favour and they supported his father, he filed this false case against them or that he killed his wife being revengeful or that not to keep any witness of such killing. This witness then became angry with this question. He, however, admitted that Nurunnahar (meaning victim -wife) was his cousin and that he married her and, after two years, Nurunnahar filed a kidnapping case against him in Gazipur and the said case was compromised on condition of separation of marriage. He denied the defence suggestion that the accuseds were not at all involved in the incident.

Nupur Akter (P.W.6) was the child-daughter of the informant. At the time of deposition, she was shown to be 17 years of age. She deposed that the incident took place on 03.10.2001 at 11.00 o’clock at night. That two days before the incident, accused Jalil, Jabbar, Delower broke the knee of her mother by

beating with the backside of a da and Jalil pressed down his father in water and at that time accused Delower and Jabbar grabbed her. That on the day of occurrence at 11.00 at night, accused Abdul Jalil asked his father to open the door, but since his father refused, the accuseds broke the window. That at that time her father went to upper store along with her. That since her mother’s leg was broken, she could not move to the upper store. That accuseds searched for his father in the house and accused Delower put a pistol on the head of accused Jalil and asked him to beat her mother. Accused Jalil then put a chopping blow on the right hand of her mother. That accused Sarwar, Sahel, Shahidul, Mohidul, Yeakub, Nannu, Jabbar and other 12/13 people then came. That the lodging Master Moshiur approached on the screaming of her mother and asked not to hit her mother, but accused Delower and others started chopping her mother

indiscriminately. When victim Moshiur resisted, they chopped him as well. That this witness and her father (P.W.5) saw the incident through the hole of the upper store. That her father started screaming the words ‘dakat’, ‘dakat’, by hitting the tin-roof, at which the neighbouring people approached, but stood beside the house and they did not approach further upon seeing the accuseds. That the accuseds left after chopping her mother and Moshiur and, thereafter, the neighbouring people put her father and herself down from the upper store. That after descending, she found Moshiur and her mother dead. Then she, along with her father, went to the

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police station and police took the case at 9/92 . That

police visited their house and took the dead bodies of her mother and Moshiur on the trawler. That before that, some people told police that there was a Da in the pond. That police then recovered the Da by Awal from the pond. That on 05.10.2001, she,

along with her father, visited police station when police arrested her father and she was taken to the house of police. That on 06.10.2001, she was again taken to the police station and, on that day, her maternal grandfather took her along with the dead body of her mother. That when police took her to the Court, she was accompanied by her maternal grandfather. According to her, she gave deposition before the Court two times. She further deposed that on 17.09.2015, accused Jalil and Delower offered her taka fifty thousands in front of her college and proposed to arrange her marriage if she deposed against her father. That the said accused further said that they gave taka fifty thousand to each accused.

In cross-examination by all accuseds, she deposed that she gave statement before two Magistrates. She, however, denied that she was produced before Magistrate on 07.10.2001 immediately after the

occurrence or that she heard from accused Delower and Jalil that she would have to give evidence on this day. She deposed that she was staying at his maternal grandfather’s house under Razapur police station of Jhalokhati District and that she was studying at Razapur College. She admitted that at the time of killing of her mother, she was aged three years and six months. She deposed that she came to Court from Razapur in bad weather at 9.30/10.00 and met her father after coming to Court. However, she could not disclose the date as to when she gave her first statement to Magistrate and she could not say the date of her second statement to Magistrate as well. She denied the defence suggestion that while she gave second statement to the second Magistrate, she stated that she, along with other, had slept after the accuseds left or that she and her father identified the accuseds by their voices or that at the time of occurrence, no witness came or that

police asked her as to where the ‘da’ was thrown away or that she disclosed that the ‘da’ was thrown away in the pond. However, she admitted that she stated to Magistrate Muntasim Billah that her father was present on the bank of the pond when the ‘da’ was recovered. She again denied that she did not tell the Magistrate that accused Jalil asked her father to open the door or that the accuseds entered the house through the southern window or what was done with the door of the upper floor after ascending to the upper floor or that accused Delower put pistol on Jalil and asked him to chop her mother or that Jalil chopped her mother first or that after hearing the screaming of her mother and the accuseds, victim Moshiur grabbed the leg and requested not to chop her mother or that accuseds and others continued chopping her mother or when Moshiur resisted, they chopped him as well or that she and her father saw everything through the hole of the

upper floor or that her father was beating the tin and the people rushed to the spot and after the people came, she and her father descended from the upper store. She deposed that on the next morning of the occurrence, she was at home and went to police station from home. She deposed that apart from her father and she, no other people was there while they were going to police station and that her father took her to police station straight away. That upon reaching police station, her father told police about the incident and thereafter the police wrote down about the incident. That, thereafter, S.I., along with two police, visited the place of occurrence and at that time their house was not locked. That they

1 reached the house at about 12 noon and within 2 /1

hour, the said ‘da’ was recovered from the pond. She deposed that she did not meet her father while he was in jail and that she met her father while she gave statement to the First Magistrate and,

thereafter, she met her father on the day of deposition before the Court. She further deposed that her father did not take information about her after being released on bail. She denied the defence suggestion that it was her father who had killed her mother and Moshiur. She, however, expressed her ignorance as to whether Moshiur’s father had filed a case against her father. She again denied the defence suggestion that she gave false evidence to save her father or that no such incident took place as per her deposition.

Khandoker Nazmul Huda Shamim (P.W.7) was the first Judicial Magistrate, who conducted first judicial enquiry after repeated naraji filed by the informant (P.W.5). He, accordingly, deposed that he conducted the said judicial enquiry while he was the first class Magistrate at Bagerhat district. That he started judicial enquiry on 28.06.2006 after receipt of the order from Cognizance Court, ‘Ga’ Anchol.

Accordingly, he fixed 18.07.2006 at 9.30 for such enquiry and issued notices upon the informant and others. That the informant made prayer on that fixed date seeking adjournment to bring evidence and, accordingly, 14.08.2006 was fixed as next date. That on the next date, he recorded the statements of six witnesses and confessional statement of one accused. That the said six witnesses were Md. Abul Kalam, Abdus Salam, A. Jalil Howlader, Razida Begum, Rubi and Rejaul Islam. That accused No.7, A.  Jalil, gave confessional statement. That he recorded the statements of independent witnesses on 19.08.2006 and recorded witness Nupur’s statement on 24.08.2006. That on 18.06.2006, two witnesses gave statements that Kalam had chopped his wife. That in his detailed enquiry, he found that Kalam himself had killed his wife and the lodging master as the said lodging master saw the occurrence. Accordingly, he submitted report. In

cross-examination, he deposed that he conducted enquiry upon visiting the place of occurrence.

Azizur Rahman (P.W.8) was another neighbouring witness. He deposed that the occurrence took place on 3.10.2001. That at night, the wife of Kalam and the lodging master boy were killed. That in the next morning, he visited the place of occurrence and saw the police interrogating Abul Kalam. That the daughter of Abul Kalam disclosed, in presence of all, that her father had chopped her mother. Being asked as to the whereabouts of the ‘Da’, she replied that it was thrown in the pond. That, subsequently, one Awal recovered the said ‘Da’ from the pond. That police then took Abul Kalam away after arrest. That this witness, accordingly, gave statement before the Magistrate. He proved his such statement as Exhibits-3 and 3/1. This witness was not cross- examined by the accused.

Sohrab Kha (P.W.9) was another neighbouring witness. According to his deposition, the occurrence took place on 03.10.2001 at 11 O’clock at night. That in the next morning, when he saw the quick movement of people, he asked as to what happen. They said that the wife of Kalam and another were killed. This witness then rushed to the place of occurrence and saw many people. That after 2/3 minutes, police came when the daughter of Abul Kalam was on the lap of her father. That being asked by police, the daughter of Abul Kalam disclosed that her father had chopped her mother and lodging master with the ‘da’ and that the ‘da’ was thrown away in the pond. That four people then jumped into the pond and one Awal Mistry recovered the ‘da’. That he, accordingly, gave statement before the Magistrate and he proved his such statement as Exhibit-4 and his signature thereon as Exhibit-4/1.

That the accused declined to cross-examine this witness as well.

Submissions in Kalam’s case: (Criminal Revision No. 582 of 2018)

6.      Mr. M. Bulbul Abu Saiyed, learned advocate appearing for the petitioner (Kalam), has made the following submissions:

1.   That P.W.5 (Kalam) and her daughter, P.W.6 (Nupur), supported the prosecution case as stated in the FIR lodged by Kalam. But P.W.1 (accused No.7) changed his earlier version as stated by him before the Judicial Magistrate. However, according to him, the trial judge did not discredit the depositions of P.W.5 and 6 at all and reached the conclusion of acquittal without discrediting such depositions. Therefore, according to him, the impugned judgment is not only a non-speaking judgment,

but also not a judgment delivered by the trial Court upon proper assessment of evidences on record.

2.   That only eye witnesses to the occurrence, namely P.W.5 and P.W.6, categorically proved the case through their depositions before the trial Court and the same could not be shaken by the extensive cross-examination of the accuseds. In spite of that, the trial Court concluded that the prosecution case was a false case and, accordingly, acquitted all the accuseds most illegally without considering the deposition of material witnesses and evidences on record. This being so, according to him, the impugned judgment should be set aside and the case should be sent on remand to the Trial Court for delivery of judgment afresh after further assessment of the

evidences, in particular the depositions of P.W.5 and P.W.6.

7.      As against above submissions, Mr. Muhammad Hasibur Rahman, learned advocate appearing for the Opposite Party Nos. 4-7 and 10-12, have made the following submissions:

1.         That some of the prosecution witnesses in this case were mostly neutral neighbouring witnesses inasmuch as that the names of some of them were even cited by the informant in the FIR as neighbouring witnesses who allegedly rushed to the spot upon hearing hue and cry raised by Kalam. By referring to the depositions of such witnesses, in particular, the depositions of P.W.2 and 3, he submits that these witnesses were not declared hostile and their depositions were not even challenged, particularly when they categorically

deposed that they themselves heard Nupur saying that her father had chopped her mother and Moshiur with ‘da’ and threw the ‘da’ in the pond.

2.         By referring to depositions of two other neutral witnesses, namely P.W. 8 and P.W. 9, he submits that these witnesses also categorically deposed that the daughter of Kalam disclosed in their presence and in presence of other people that it was her father-Kalam who had killed her mother and the lodging master by chopping with the ‘da’ and the ‘da’ was thrown away in the pond and that the said da was recovered on such information. Therefore, according to him, these depositions having not been challenged by any quarter, they remain as valid parts of evidence and, accordingly, the trial judge had no option but to acquit the

opposite parties and other accuseds on the basis of such reliable depositions.

3.         By referring to the depositions of P.W.1 (accused No.7), he submits that although this witness supported Kalam’s version of the case during enquiry by the Judicial Magistrate, he took u-turn during the trial and categorically deposed that he made false statement before the Judicial Magistrate on the instruction of the informant- Kalam.
   4.   By referring to the depositions of informant Kalam (P.W.5) and Nupur (P.W.6), he submits that it is apparent from the said depositions that their depositions were hugely inconsistent with the FIR version of the case and their earlier statements made before the Judicial Magistrate and, in the

cross-examination, they admitted that they gave some new statements in the depositions which they did not mention in their earlier statements. Therefore, according to him, the depositions of P.W.5 and P.W.6 were rightly disbelieved by the trial judge as the same were apparently false statements.

5.      That although the impugned judgment was not that much elaborate as to the assessment of the evidences on record, the conclusion reached by the trial judge as to the acquittal of the opposite parties and others should not be interfered with by this Court in criminal revisional jurisdiction inasmuch as that if the evidences on record are reassessed by this Court or examined by this Court in exercise of its revisional jurisdiction, it will be evident that

the prosecution has totally failed to prove the charge against the opposite parties and others and it has turned out that the prosecution case was totally a false case just manufactured in order to avoid the consequence of investigation and trial of the case filed by the father of the deceased Moshiur. This being so, according to him, the criminal revision does not have any merit at all and as such the same should be rejected by this Court upon discharging the Rule.

5. Death Reference (case against Kalam):

As stated above, the father of one of the

victims, namely Moshiur, lodged a separate FIR in respect of the same incident on 07.10.2001 i.e., on the 4th day of the occurrence, and the said FIR was registered as Morelgonj Case No.

12 dated 07.10.2001 under Section 302 of the Penal Code.

1.      The informant (P.W.1) lodged the said FIR naming only convict-Kalam as accused alleging, inter alia, that his son, Md. Moshiur Rahman (12), was a hafizi student of Gurishakhali Hafizia Madrasha. Since his residence was four kilometers away from the said Madrasha, he put his son as a lodging master at the house of Kalam six months before the date of occurrence and his son was attending Madrasha from the said house. That on 03.10.2001 at 11 o’clock, at night, after meal, when his said son was asleep in the said house, accused Kalam started chopping his wife-Sultana Yeasmin (25) to kill her. As Moshiur woke up hearing screaming and resisted Kalam and tried to come out of the house, Kalam chopped his son on the left side

of the face along with ear and back and top of the head with a ‘da’ causing serious incised injuries. Victim then fell on the ground. That because of such chopping, Kalam’s wife, Sultana Yeasmin, and his son, Moshiur, died on the spot. That after such killing, Kalam, along with his child daughter (three years and five months), came out and threw the ‘da’ in the pond in front of the house and went to the police station and filed a case against 13 people including his father, brother and maternal uncles. That, thereafter, police came to the place of occurrence. That being asked by police, Kalam, in presence of witnesses, namely Azizur Rahman (P.W.14), Md. Nurul Islam (P.W.9), Md. Sohrab Hossain (P.W.4), A. Awal (P.W.5), Md. Harun (P.W.6), Md. Ali and others, confessed that he himself did the killing in order to trap his brother, father and maternal

uncles out of a land dispute as because the said people had beaten him and took his signatures on two 150 Tk stamps. When the daughter of Kalam was asked, she also disclosed to the police in presence of witnesses that her father had chopped her mother- Sultana Yeasmin (25) and Moshiur (12), and threw away the ‘da’ in the pond. That, thereafter, as per confession of Kalam, the said ‘da’ was recovered from the pond situated on the southern side of the house. That police then took Kalam into custody. That upon learning and seeing the dead bodies of Kalam’s wife and his son Moshiur, and because of ritual of his dead son, some delay took place in lodging the F.I.R.

2. It may be noted that on the basis of the FIR lodged by Kalam, being Morelgonj P.S. Case No.04 dated 04.10.2001, the investigating officer

(P.W.12) visited the place of occurrence, prepared surathal report on the dead bodies of victim Yeasmin and Moshiur, sent the dead bodies for post mortem report. However, at the fag-end of the investigation in the instant case, P.W.12 handed over the charge of investigation to one S.I. Enamul Hoque (second investigation officer) (P.W.8) upon his transfer. P.W.8 then, after re-examining the investigation materials of the first investigating officer and agreeing thereto, submitted the charge-sheet, being Charge-Sheet No. 290 dated 10.12.2001 under Section 302 of the Penal Code against Kalam only. Thereafter, the case, being ready for trial, was sent to the Court of Sessions Judge, Bagerhat and the same was numbered as Sessions Case No. 14 of 2002. The learned Sessions Judge then took cognizance of the