In the Supreme Court of Bangladesh               High Court Division

 Present:

Mr. Justice Sheikh Hassan Arif And

Mr. Justice Biswajit Debnath

Death Reference No.75 of 2017

The State

Vs.

Md. Lavlu

      ...Condemned-Prisoner.

With

Criminal Appeal No. 6509 of 2017 Md. Lavlu @ Lavlu

                     .. Convict-Appellant.

                     Vs.

The State  ..Respondent.

 Mr. M.A. Muntakim with

 Mr.  Chowdhury  Shamsul  Arifin, Advocates

          …For the convict-appellant.

With

Jail Appeal No. 264 of 2017

Md. Lavlu Gazi

                     .. 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  14.02.2023,  19.02.2023

and 26.02.2023.

Judgment  on  27.02.2023  and 28.02.2023.

SHEIKH HASSAN ARIF, J:

1. This death reference has been sent to us by the Nari-O-Shishu Nirjatan Daman Tribunal, Jessore in view of the provisions under Section 29 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 read with Section 374 of the Code of Criminal Procedure for confirmation of death sentence imposed by it vide judgment and order dated 30.05.2017 passed in Nari-O-Shishu Mamla No. 231 of 2014, the Tribunal sentenced the convict- Md. Lavlu to death after convicting him under Section 9 (3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (hereinafter called “the said Ain”). The said convict having, in the meantime, preferred Jail Appeal No. 264 of 2017 and Criminal Appeal No. 6509 of 2017, the same have also been sent to us for disposal along with the said death reference. Therefore, the said

death reference, criminal appeal and jail appeal are to be disposed of by this common judgment.

2. Background Facts:

2.1     Prosecution case started with the lodging of the

FIR by P.W. 1(Md. Billal Hossain), father of the deceased (Sabina Khatun), with the Kotwali Model Police Station, Jessore alleging, inter- alia, that her daughter, Sabina Khatun (8), was a student of class three and the accuseds, Anwar Hossain and Lavlu, were their neighbours. That the accuseds used to visit his house and accused No. 1 used to call the victim ‘hå’¤  (friend) as he was related to her as grandfather. That in the evening at 7:30 on 23.03.2014, while his said daughter was studying at the veranda of his house, the accuseds came and sought to eat betel leaf (cvb) from his mother (P.W. 2), which his mother could not give as there was no betel Nut. That

while his mother went to a nearby house, the accuseds took away the victim on the pretext of giving her sweets and wrapped her mouth with hand. The accuseds then took the victim to the potol field (fVm ®ra) of accused Anwar towards the south-west side of informant’s house. The accuseds then raped and killed the victim after tying-up her hands, mouth and legs, and left her in the paddy field with earth in her mouth. That the informant then returned from bazar and found no one at home except his mother. He started searching for her daughter and found the deceased-victim at 09:15 at night at Anwar’s paddy land with her hands, legs and mouth tied up. The body was then taken to the General Hospital, Jessore by one Saju and Rafiqul, wherein the victim was declared dead. That police came after knowing about the incident. The informant then, after knowing everything

from his mother (P.W. 2) and neighbour Saleha (P.W. 5), lodged the FIR on the next day.

2.2     Accordingly, the said FIR was registered as Kotwali Model Police Case No. 92 dated 24.03.2014 under Section 9 (3) of the said Ain and the charge of investigation was given to P.W. 7, an SI of the said police station. However, in the meantime, on the strength of a GD entry, one SI of the said police station visited the hospital morgue at night on 23.03.2014, prepared inquest report and sent the body for post mortem. During his investigation, P.W.7 seized some materials by way of seizure list, prepared sketch map & index, examined the post mortem report and arrested accused-Lavlu, who then made confessional statement before a Magistrate. The investigating officer also recorded statements of witnesses, and upon finding the allegations to

be established prima-facie against both the accuseds, he submitted charge sheet, being Charge Sheet No. 663 dated 23/07/2014, under Section 9 (3) of the said Ain against them.

2.3     Thereafter, the case, being ready for trial, was sent to the Nari-O-Shishu Nirjatan Daman Tribunal, Jessore for trial. Subsequently, one of the accuseds, namely, Anower Hossain, having died, the Tribunal framed charge against accused Lavlu only vide order dated 20.04.2015 under Section 9 (3) of the said Ain. The said charge was then read over to him, but he pleaded not guilty and demanded trial. During trial, prosecution produced nine (09) witnesses (P.W. 1 to P.W. 9) including some documents and materials which were, accordingly, marked as exhibits and material exhibits respectively. After completion of recording of the evidences, the Tribunal examined the accused under

Section 342 of the Code of Criminal Procedure, whereupon the accused again pleaded not guilty and refused to give any evidence in defence. The Tribunal then, after hearing the parties, delivered the impugned judgment and order dated 30.05.2017, thereby, convicting the accused-appellant under Section 9 (3) of the said Ain and, accordingly, sentenced him to death with a fine of Taka one lakh. The Tribunal then sent the case records to the High Court Division of the Supreme Court of Bangladesh in view of the provisions under Section 29 of the said Ain read with Section 374 of the Code of Criminal Procedure for confirmation of the said death sentence. As stated above, the convict- appellant has in the meantime preferred the aforesaid jail appeal and regular criminal appeal. Thereupon, after necessary formalities, the said appeals have also been sent to us,

along with the said death reference, for disposal.

3. Depositions of the witnesses:

3.1 Before scrutiny of the evidences on record as against the submissions of the learned advocates, let us first describe, in short, as to what the prosecution witnesses deposed before the Tribunal.

P.W. 1 (Md. Billal Hossain) was the informant and father of the deceased. Accordingly, he deposed before the Tribunal that the occurrence took place in between 7:30 and 9:00 at night on 23.03.2014. That in the evening on that day, when he came out of the house for bazar, accused-Lavlu entered his house. That other accused-Anower was also in his house at that time. That when he went to bazar, her daughter Sabina, aged 8, was doing study at the veranda of the house and the accuseds were watching

television. That after 30/40 minutes, he received a phone call from his sister Dolly, who made query about the whereabouts of Sabina. He then replied that he saw accuseds-Anwar and Lavlu watching TV at home and asked his sister to ask them about it. His sister then informed him that the said two people were also not at home. That people of the house then started searching for the victim, and, after 10 minutes, his brother-in-law, Mirajul, informed him that the victim was found at the potol field of Anwar. He then rushed to the spot and saw the victim being taken to the hospital on a motor cycle by one Raju and Mukul. He then tried to go to the hospital, but was asked by the people not to go there as, according to them, his daughter had already died. That doctor at the hospital declared his daughter dead. That inquest and post mortem were done thereafter. According to him, the victim was raped and killed by accuseds Lavlu and Anower. He then

lodged FIR with the Kotwali police station on the next day. Accordingly, he proved the said FIR as Exhibit-1 and his signature thereon as Exhibit-1/1. He also identified the accused-Lavlu standing on the dock. According to him, the other accused had died.

In cross-examination, he deposed that the body of the victim was brought to his house by the village member and people on the next day and, thereafter, the body was buried. That he filed the case at about 7/8 after Maghreb on 24.03.2014 and that he himself did not write the FIR, but it was written as per what he told about the incident. He further deposed in cross-examination that police was informed about the incident at about 12:00 at night on 23.03.2014 and police immediately rushed to the house. That Ismail member and Alim also informed police after he informed it. He denied that he did not write in the FIR as regards his visit to the bazar and Lablu’s visit

to his house or that Lavlu and Anwar were watching TV or that his daughter was doing study at the veranda or that he received a phone call while he was at bazar or that he did not ask his sister to make query from Anwar and Lavlu who were watching TV or that his sister told him that the accuseds were also not at home or that after 10 minutes, his brother-in-law informed him that the dead body was recovered or that local people asked him not to go the hospital. He, however, admitted in cross- examination that he did not see the occurrence and that he saw the dead body after the rape and killing of his daughter. He further admitted that the Upazila election was taking place on the day of the occurrence. He also admitted that he had a wife named Asia, but she was not at home at the time of occurrence. He admitted that Mahfuza Begum (P.W. 2) was his mother and Fazlul Hoq Bepari was his father and that Dolly was his sister, who was married

away to Chandra village which was about 8-10 km away from the place of occurrence. However, he expressed his ignorance as to whether the house of Lavlu was massacred by the village people or whether Lavlu’s livestocks were looted away. He also admitted in cross-examination that Lavlu was arrested by RAB. He further deposed that Lavlu fled away immediately after the occurrence, and, after 5/6 months, he was detained by RAB and that RAB detained him after Lavlu’s poster was circulated at different places. He further denied the defence suggestion that he was engaged in phensedyl business and that the people of Durgapur village filed case against him in respect of such phensedyl. He further denied the defence suggestion that Lavlu’s house was massacred because of village grouping or that Lavlu was chased away from the village or that he was implicated falsely in the case because of that.

P.W. 2 (Mahafuza Begum)  is the mother of the informant (P.W.1). She deposed that the occurrence took place in between 07 and 09 o’clock at night in the evening on 23.03.2014. According to her, on that day, Anwar visited her house in the evening and sought to eat betel leaf and Anwar was sitting on a chowky (bed) at the veranda. That other accused Lavlu was standing while holding the roof of that veranda of the house. That upon a call from her sister’s house nearby, she went there and, while she was going, she saw victim Sabina, aged 8, studying and sitting on the bed towards eastern side of the veranda. That when she returned from her sister’s house, she found the books open on the bed and found her grandchild missing along with the accuseds. She then started to search for her grandchild and, at one point of such searching, found the victim lying upside down with blood stained cloths at the potol field of accused-Anwar.

She then rushed to the spot immediately along with Saleha (P.W. 5), Moti Kaka (P.W. 3) and other local people. She found the torn-up cloths on the dead body and saw blood thereon. She also found earth in the mouth of the victim and some burn injuries from cigarette on victim’s hand and abdomen. That people present there said that the victim was alive and, accordingly, they tried to make the victim breath upon removing the earth from her mouth. That Mukul and Saju then took the victim on a motor cycle and they went away quickly towards the Jessore 250-bed hospital—where the doctor declared that the victim had died long ago. That upon arrival of the dead body and inquest report, the body was buried. She, accordingly, identified accused-Lavlu standing on the dock.

In cross-examination, she deposed that the potol field of Anwar was 1/2 km away from her house and

the house of accused-Lavlu was also half km away from her house. She also deposed that police came to her house at about 10/10:30 at night, but she could not say as to who gave information to the police. She also deposed that she visited her sister Rokeya’s house to see the birth of a cow-calf and she stayed there for 20 minutes. She further confirmed that the house of Rokeya and her house were adjacent to each other. She, however, deposed that she did not see the incident and that she did not go to the hospital when the victim was taken there. That after the death of her granddaughter, she became shocked and, accordingly, she didn’t know when her son went to file the case. She also admitted that their original house was in Chowgacha and that they belonged to Dhopadi clan (−d¡f¡¢c hwn) and the witnesses belonged to Bepari clan. She also deposed in cross- examination that Lavlu was detained by police from

Hashimpur Bazar after about 26/27 days of the occurrence and she, along with her son, visited the police station on that day after arrest of Lavlu. However, she expressed her ignorance as to whether Lavlu was beaten by police on that day. She further denied the defence suggestion that they had asked police to extort confession from Lavlu by beating. She also expressed ignorance as to whether local people had massacred Lavlu’s house after the occurrence or that Lavlu’s livestocks were looted away. She deposed that she gave statement to police on the day of the occurrence. She also denied the defence suggestion that she did not disclose to police about the cigarette burn on the body of the victim.

P.W.3 (Md. Motiur Rahman) was the neighbour of the informant. Accordingly, he deposed that the informant and accused were known to him. He also

deposed that on 23.03.2014, he saw Anwar and Lavlu talking to each other at the Maghrib time in front of his house. That at about 08:00 o’clock at night, he visited informant’s house after hearing hue and cry and upon hearing that the victim had gone missing. He then, along with other people, started searching for the victim and, at one stage, found the victim lying on the potol field of Anwar. That the victim was lying upside down and that her clothes were stained by mud and blood. That he saw Fazlu recovering the victim and taking the victim quickly to the house. That the earth from the mouth of the victim was taken out after taking the victim to the house and she was taken to the hospital quickly by Mukul and someone else on a motor cycle, wherein doctor declared her dead. That the case was filed and police visited the place of occurrence. Accordingly, police seized the piece of victim’s payjama and blood stained earth by a seizure list

and took his thumb impression thereon. Accordingly, he proved the said seizure list as Exhibit-6 and identified his signature thereon. He also identified accused-Lavlu standing on the dock.

In cross-examination, he admitted that he could not be able to read as to what was written on the said paper with his thumb impression. He could not remember as to when he gave such thumb impression. He deposed that he did not go to the hospital. He also deposed that the distance of Anwar’s potol field from his house was about 300 yards and that the distance of Sabina’s house from his house was about 250 yards. He also deposed in cross-examination that they had searched for the victim with the torch lights and there were about 10/12 torch lights. However, they did not deposit torch light to the police. He confirmed that P.W. 2 also visited the potol field of Anwar. He admitted that

the grandfather of victim was his friend. He, however, denied that he did not tell police that he saw Lavlu and Anwar talking to each other standing on the road. He also denied that he did not tell police that he had heard screaming from the house of Billal (P.W. 1). He also denied that he did not tell police that Sabina was taken to the house by her grandfather and that the earth from her mouth was taken away on that he did not tell police that Mukul and someone else took Sabina to the hospital. He, however, expressed ignorance as to whether the house of accused was massacred. He also denied the defence suggestion that he was involved in such massacre and looting. He, however, admitted that he did not see the rape at the potol field. He denied the defence suggestion that he gave evidence in order to justify his looting.

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P.W. 4 (Md. Rafiqul Islam) is another neighbour of the informant. He also confirmed the date and time of the occurrence in his deposition and confirmed that the occurrence took place at the potol field of Anwar Hossain at Erenda village. He confirmed that there was Upazila election on the day of the occurrence and he was at the bazar. He deposed that the informant was searching for his daughter, and, being a neighbour, he also joined the searching. That during such search, they came to know that accuseds Anwar and Lavlu were at informant’s house and that Sabina’s sandal and accused-Lavlu’s watch were found on the bank of a pond. They then started searching for Sabina and found her body lying upside down and senseless in the potol field of Anwar Hossain. That Sabina’s grandmother Mafuza (P.W. 2) and neighbour Saleha (P.W. 5) took Sabina to house with muds on the mouth and nose of Sabina. He then took Sabina to

the hospital, with the motor cycle of Saju where the doctor declared her dead. He also took the dead body to Sabina’s house after post mortem. According to him, police prepared inquest report on 24.03.2014 and he was present at that time. Accordingly, he proved the said inquest report as Exhibit-2 and his signature thereon as Exhibit-2/1.

In cross-examination, he deposed that police came at about 11 in the morning on 24.03.2014. He further deposed that it was written on the inquest report that he had signed the same on 23.03.2014 at 23:50 at night. He deposed that he was at Erenda bazar on the day of occurrence and the distance of Erenda bazar from Sabina’s house was near ½ km and there are 25/30 houses in between. That he came to know from Sabina’s aunt (g¥g¥) that Sabina had gone missing and the said aunt’s name was Dolly and that he received such information at about 7/7:30 in the

evening. That he was along with 7/8 people at that time and all of them started searching when it was dark at night. He deposed that the potol field of Anwar was about 30/40 ft. away from Sabina’s house and Anwar’s house was about 60/70 ft. away from the said potol field. He confirmed that Sabina and Lavlu were from same locality (f¡s¡). He deposed that he saw Sabina lying on the ail and he did not see as to what happened before that. He also confirmed that he started with the motor cycle from Sabina’s house at about 8:30/8:45 at night and Sabina was naked at that time and that a cloth was put on her. That Sabina was bleeding at that time and some blood saddled on his body as well. He also confirmed that he found Sabina in the torch light and that there were torch lights and charger lights in the hands of people, but the torch lights, charger lights and his blood stained cloths were not given to police. He could not say as to wherefrom Sabina’s

sandal and Lavlu’s watch were recovered and as to who recovered them or who deposited them to police. He deposed that he had received dead body on the next day at about 11-12 o’clock and he was present at the time of lodging the FIR. He admitted that Lavlu was arrested by RAB from Hashimpur of Jessore. He denied that Lavlu was arrested from Keshobpur on that accuseds-Lavlu and Anwar were not at the house of Sabina’s father. He, however, admitted that he did not see Lavlu and Anwar at Sabina’s father’s house.

P.W. 5 (Saleha Begum) was another neighbour of the informant. She, accordingly, confirmed the time and date of occurrence. She confirmed that she was watching TV at that time, but she could not remember as to at whose house she was watching TV, but she confirmed that Lavlu and Anwar were standing at that house. She then heard that Sabina

went missing and she started searching for Sabina. That after about half an hour, Sabina was recovered naked from the potol field of Anwar. That there were muds on Sabina’s mouth and eyes. That 10/12 people took Sabina to her house, muds were washed away, a pant was put on her and she was sent to hospital. She deposed that Sabina had died.

In cross-examination, she deposed that Billal was his brother through village relation and that there were two houses in between her house and Billal’s (P.W.1) house.  She, however, deposed that she was watching TV serial at Billal’s house and the said TV serial was CID. She denied the defence suggestion that there was no such TV serial named CID or that 7:00 o’clock at night was not the time for CID serial. She also deposed in cross-examination that she was at Shariful’s house for half an hour and she could not remember as to when she returned

home. After returning home, she came to know at 07:30 that Sabina had gone missing. That she searched for Sabina for 1 to 1½ hours and found her. At that time, there were 10/12 people. She expressed her ignorance as to whether Lavlu’s house was vandalized on the night of the occurrence and whether Lavlu’s livestocks were looted away. However, she confirmed that her house and Lavlu’s house were adjacent to each other. She, however, deposed that she had heard later on that Lavlu’s house was looted. She also heard that Lavlu was arrested by RAB and then he was beaten by RAB. She again deposed that Lavlu was standing and Anwar was eating betel leafs. She, however, denied the defence suggestion that Lavlu was not standing or that local people implicated Lavlu falsely in the case or that she deposed falsely on the dictation of the local people.

P.W.6 (Anisur Rahman) was another neighbour of the informant. He, accordingly, confirmed the time and date of occurrence. He also confirmed that Anowar’s potol field was near victim-Sabina’s house. He, however, deposed that he heard from local people that accuseds-Anwar and Lavlu killed the victim after raping her forcefully. He saw the dead body. In cross-examination, he deposed that he had heard about the incident at about 7:45 or 8:00 o’clock at night on 23.03.2014 and, at that time, he was at this house. That his house was about 400/500 yards away from the place of occurrence and there were 7/8 houses in between his house and the place of occurrence and those houses belonged to Ayub Ali, Faruk Hossian, Azibor, Aftaf Hossain, Abul Kashem and Motiar. That he visited the place of occurrence at about 8:00 o’clock at night, but he did not see the incident of rape. He confirmed that he deposed on the basis of his

hearsay. He also could not remember as to whether he had signed any paper. He, however, admitted that Lavlu was arrested by RAB and he deposed that Lavlu was in RAB custody for one month. He, however, denied the defence suggestion that Lavlu was not involved in the incident or that he did not hear anything. However, he could not remember as to whether he was asked by police anything during investigation. He also denied the defence suggestion that the confession of Lavlu was extorted through torture by RAB. He also denied the defence suggestion that Lavlu was not present at the place of occurrence on 23.03.2014. He denied that he gave false deposition.

P.W. 7 (Md. Rafiqul Isalm) was the investigating officer of the case. He deposed that on 24.03.2014, he was Inspector (investigation) of the Kotwali police under Jessore District. That on that day, at about

21:15, at night, duty officer S.I Sowmen Das recorded the FIR lodged by P.W. 1 and the officer- in-charge of the police station handed over the investigation charge on him. He, accordingly, visited the place of occurrence, prepared sketch map & index on different papers, seized some materials and recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure. He also detained absconding accused-Lavlu with the help of RAB and public during investigation and that Lavlu voluntarily gave confessional statement before Magistrate admitting his guilt. That upon examination of post mortem report and circumstances, he found  the allegations under Section 9 (3) of the said Ain being established against accused-Md. Anwar Hossain @ Anar and accused-Md. Lavlu and, accordingly, he submitted charge-sheet under the said Section, being Kotwali Model Police Charge-Sheet No. 663 dated

23.07.2014, under Section 9 (3) of the said Ain. He deposed that after completion of investigation and during continuation of the case, accused-Anwar had died. Accordingly, he identified accused-Lavlu standing on the dock. He also identified the signature of FIR-recording officer Sowmen Das and his three signatures on the FIR as Exhibits-3, 3/1, 3/2. He also identified the recording officer’s signature on the margin of the FIR as Exhibit-1/2. He, accordingly, proved the sketch map as Exhibit-4 and his signature thereon as Exhibit-4/1. He also proved the index of the said map as Exhibit-5 and his signature thereon as Exhibit-5/1. He, accordingly, deposed that the surathal report of the victim was prepared by his associate, S.I. Md. Sayful Alam Kabir, and he was acquainted with his signature. Accordingly, he proved his signature as Exhibit-2/2. He deposed that he seized pieces of victim’s yellow cloth and blood stained earth at the

police station in presence of witnesses vide seizure list-Exhibit-6. Accordingly, he proved his signature on the said seizure list as Exhibit-6/1. He also proved the seized pieces of cloth and blood stained earth as material Exhibits-I and II.

In cross-examination, he could not say as to who had written the FIR. He deposed that he did not examine the writer of the FIR, but confirmed that the FIR was lodged on 24.03.2014 at 21:15 hour. He also confirmed that police visited the place of occurrence on 23.03.2014, but could not say the exact time. According to him police visited the place of occurrence on 23.03.2014 on the strength of GD, but he could not say the GD number and confirmed that he did not seize the said GD. He also confirmed that accused-Lavlu was arrested on 18.05.2014 with the assistance from RAB and police, but he could not say as to wherefrom Lavlu was arrested.

However, he deposed that Lavlu was arrested with the assistance from public, police and RAB, but he did not make anyone of them as witness. He also confirmed the name of the deceased as Sabina Khatun, but confirmed that he did not mention the house of Sabina Khatun in the index. He, however, confirmed that P.W. 3 did not tell him in 161 statement that Lavlu and Anwar were talking to each other standing on the street. The said witness also did not tell him that he had heard screaming from the house of P.W.1. That the said witness also did not tell him that Sabina’s grandfather took Sabina on his lap. He, however, deposed that the deceased was taken to the hospital from the place of occurrence by police. He confirmed that he saw the post mortem report, but he did not take statement from doctor under Section 161 of the Code. He also confirmed that he did not make separate sketch map for the house of the informant, but he mentioned

about that house in the index. He denied the defence suggestion that Lavlu was not detained by RAB and public or that Lavlu was arrested from Keshobpur or that Lavlu’s confessional statement was extorted by torturing at the police station or that he gave such confession against his will or that no prima-facie case was made out or that he gave false deposition.  

P.W. 8 (Dr.Kajol Mollick) was a formal witness as he was the doctor who conducted post mortem on the dead body. According to his deposition, he was working as an emergency medical officer of the 250- bed medical hospital on 24.03.2014 when the dead body of Sabina, aged 8 years, daughter of Billal Hossain, village-Erenda, P.S.-Kotwali, Jashore, was brought to him by one constable Md. Ruhul Amin Gazi, Constable No. 922. He, accordingly,

conducted post mortem on her dead body and found the following injuries:

Abrasion both Fore-arm extensor surface.

Abrasion in both inguinal area which is congested in dissection.

Vaginal injuries:-Abrasions in anterior and posterior fornix with clotted blood.

Anus:-Abrasion in anal Mucosa which is congested in dissection.

Neck and Throat:-Skin healthy, Trachea- Congested”.

He further deposed that according to his opinion:-

“Death was due to asphyxia followed by suffocation and sexual assault which is antemortem and homicidal in nature”. 

Accordingly, he proved the said post mortem report as Exhibit-7 and his signature thereon as Exhibit- 7/1. He also identified the signature of the Civil Surgeon concerned on the said post mortem as Exhibit-7/2. In cross-examination, he deposed that he had examined the inquest report and examined

the dead body by moving the same with the help of one Kollwany Das, wife of the Dom Gobinda Das, but he did not mention in the report the age of such injuries. He, however, denied the defence suggestion that he did not examine the dead body or that he prepared the post mortem report negligently or that he gave false deposition. 

P.W. 9 (Md. Amirul Islam)  was also a formal witness as he was the Judicial Magistrate who recorded the confessional statement of accused- Lavlu. He deposed that, on 18.05.2014, he was working as Senior Judicial Magistrate of the Jashore Chief Judicial Magistracy when the investigating officer of the case brought accused-Md. Lavlu Gazi to him for recording his confessional statement under Section 164 of the Code.  That the said accused was presented to him at 12 o’clock (noon), and, before recording such confessional statement,

he gave the accused sufficient time and started recording the statement at 03 o’clock. He also read over the said statement to the accused and took three signatures from the accuseds on the same. This witness gave seven signatures on the same and, accordingly, proved the said confessional statement as Exhibit-8 and his said seven signatures thereon as Exhibits-8/1 to 8/7. He also proved the signatures of the accused on the said statement as Exhibits-8/8, 8/9 and 8/10.

In cross-examination, he deposed that the accused was arrested at 01:30 AM and not at 01:30 PM. He also deposed that he had recorded the confession of the accused in his khash kamra, but he did not tell the accused in writing that he was not police or that he  was Magistrate or that if the accused did  not confess, he would not be sent to the police custody. However, he deposed that “if you admit guilt that

would be used as evidence against you”—this statement was made to the accused orally, but not in writing. However, he deposed that he was not aware whether the accused understood English. He confirmed that he wrote the memo under the confessional statement in English. He, however, denied the defence suggestion that he had recorded the said confessional statement without complying with the provisions under Sections 364 and 164 of the Code of Criminal Procedure as he was influenced by the prosecution.

4. Submissions: 

4.1  Before scrutiny of the evidences produced by the prosecution, let us first refer to the submissions made by the learned advocates before this Court. It may be noted that at the out-set of the hearing, entire paper book, lower Court records as well as other materials were placed before this Court one after another by the learned Deputy Attorney

General. Thereafter, he made oral submissions in support of confirmation of the conviction and death sentence of the accused-appellant. However, for the sake of our convenience, we will refer to the submissions of the learned advocate of the accused-appellant first followed by the submissions of the learned Deputy Attorney General.

4.2  Mr. Chowdhury Shamsul Arifin, learned advocate appearing for the accused-appellant, has made the following submissions:

(i)  That the first place of occurrence, namely, the place of abduction, was not mentioned in the map and no witness deposed as regards such abduction of the victim from her house. Therefore, the prosecution has totally failed to prove the allegation of abduction.

(ii)        By referring to a medical slip lying with the lower Court record, he submits that the accused was given treatment at the outdoor of a hospital, which suggests that he was seriously beaten up either by public or police. Therefore, the confessional statement of the accused cannot be accepted as legal confessional statement and as such the same cannot be the basis of any conviction as the same was not given voluntarily.

(iii)      That more than one prosecution witnesses categorically deposed that accused-Lavlu was arrested by RAB as against which investigating officer could not disclose as to wherefrom the accused was arrested, which, according to him, creates a serious doubt as regards illegal detention of the accused before extortion of his confessional statement.

(iv)  By referring to the deposition of P.W. 6, he submits that this witness has categorically deposed before the Court below that the accused was in the custody of RAB for about one month. Therefore, according to him, under no circumstances, the confessional statement of the accused can be accepted by this Court as voluntary confessional statement.

(v)     By referring to the inquest report and the advice of the officer who prepared such inquest report for examination of   victim’s cloths, sexual organs, semens and blood, he submits that such examinations were not admittedly done and the DNA was also not examined. This being so, according to him, the prosecution has failed to prove the connection of this accused with the alleged crime of rape and/or killing. Accordingly, he

submits that the accused will get the benefit of such non-examination of material evidence by the prosecution in view of the provisions under Section 114 (g) of the Evidence Act.

(vi)  Alternatively, as regards sentence, he submits that the accused-appellant is married and he has two children and that the accused was 28 years of age at the time of occurrence. Therefore, according to him, considering his long incarceration in jail and condemned cell, his sentence should be commuted to life imprisonment in case of affirming conviction against him under Section 9 (3) of the said Ain.

(vii)   By referring to the confessional statement  of the accused-appellant, he submits that if the confessional statement is to be taken as the basis of conviction, the whole statements should be considered by this Court.

Therefore, he submits that the confessional statement itself says that the accused- appellant was not involved in the alleged killing of the victim. Therefore, under no circumstances, his death sentence should be accepted by this Court.   

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

(a) That the confessional statement of the accused-Lavlu has no apparent illegality and it is evident from the same that the same was voluntary and true, particularly when the substance of the same corroborates the substantive evidences as regards manner of occurrence as found in the inquest report and postmortem-report which were proved by the relevant witnesses. Therefore, according to him, there is no scope to treat the said

confessional statement (Exhibit-8) as being not true and not voluntarily.

(b) As regards manner of arrest of the accused, he submits that the investigating officer has clearly recorded such manner of arrest in the case diary and this Court may examine the same to see if such arrest was not lawful or whether the accused was detained illegally.

(c)  By referring to the deposition of P.W. 1, he submits that it is clear that Lavlu fled away immediately after the occurrence and, accordingly, this conduct of the accused is relevant in view of the provisions under Section 114 of the Evidence Act.

(d) By referring to different orders of the Tribunal as well as materials lying on record, learned DAG submits that the accused, at no point of time, retracted his confessional statement, and even in Section 342 examination, he did

not allege any sort of torture on him or illegal detention by RAB or any other authority. Therefore, according to him, this submission as regards illegal detention or arrest is an afterthought submission.

(e) By referring to the depositions of P.Ws. 2 and P.W. 5, he submits that these two witnesses have categorically deposed that they saw the accuseds immediately before the occurrence took place at the house of the victim-Sabina. Therefore, the doctrine of ‘last seen theory’ will be applicable in this case, particularly when accused-Lavlu has categorically stated in his confessional statement as regards his presence at the house of victim-Sabina at the relevant time.

(f)    By referring to Section 32 of the Penal Code, learned DAG submits that even though accused-Lavlu stated in confessional

statement that he did not overtly take part in the killing, but his omission to prevent accused-Anwar from committing further rape and killing would also come within the mischief of rape and killing.

(g) By referring to Section 9 (3) of the Nari-o- Shishu Nirjatan Daman Ain, 2000, learned DAG submits that in case of death of the victim, only option open to this Court is to impose or confirm death sentence and, according to him, the life imprisonment mentioned therein can only be imposed when the victim survives gang rape. Accordingly, he submits that the death sentence imposed by Tribunal should be accepted by this Court.

5. Scrutiny of Evidences:

5.1  Admittedly, the charge against the appellant is of gang rape coupled with murder punishable

under Section 9 (3) of the said Ain. The prosecution case is that the appellant and accused-Anwar (died after cognizance and before charge framing) abducted victim-Sabina, aged 8 years, from her house, took her to nearby potol field of Anwar and repeatedly raped her, which resulted in her death. Therefore, let us see whether the prosecution has proved, beyond reasonable doubt, that gang rape was committed on the victim and, as a result of which, she died.

5.2  It appears from materials on record that the prosecution successfully proved the inquest report, as prepared by one S.I. of the police station concerned at the earliest opportunity, by P.W. 4 as Exhibit-2 and his signature thereon as Exhibit-2/1. P.W. 7 (Investigating Officer) also identified the signature of the author of the said inquest report as Exhibit-2/2. On the other hand, the post-mortem report, as prepared by the

doctor concerned, namely, P.W. 8, has also been proved by the said doctor as Exhibit-7. It appears from the said evidences, in particular the post-mortem report (Exhibit-7), that P.W. 8 found the following injuries on the victim:

“Abrasion both Fore-arm extensor surface. Abrasion in both inguinal area which is congested in dissection.

Vaginal Injury:- Abrasions in anterior and posterior fornix with clotted blood.

Anus:- Abrasion in anal Mucosa which is congested in dissection”.

After such examination, the doctors (P.W.8) in their opinion held: “death was due to asphyxia followed by suffocation and sexual assault which is antemortem and homicidal in nature”. 

5.3. P.W. 8 proved the said post-mortem by his clear deposition before the Tribunal. It appears from the said post-mortem report that the injuries

found therein, in particular the vaginal and anal injuries, are consistent with gang rape. It also suggests some perversion on the part of the perpetrator(s) of such offence, given the age and nature of injuries of the victim. In addition to that, the seizure list prepared by P.W. 7, namely Exhibit-6, has also been proved by P.W. 3 and P.W. 7 himself before the Tribunal. The materials seized by the investigating officer, namely, pieces of wearing cloths of the victim and the blood stained earth, were also produced before the Tribunal as material Exhibits-I and II by P.W. 7. If we examine these materials on record, it will be evidently clear that this is a case of gang rape, or multiple rape, on a female victim aged 8 years. Therefore, we have no option but to conclude that the prosecution has successfully proved, beyond reasonable doubt, that the victim-Sabina in this case has been a

victim of gang rape, or multiple rape, which resulted in her death.

5.4        Now, the question is who committed such rape. Admittedly, there is no eye witness to the occurrence, namely, the gang rape and the killing. There is no eye witness to the alleged abduction as well. However, there are two witnesses, namely P.Ws. 2 and 5, who have categorically deposed before the Tribunal that immediately before the occurrence, they saw accused-Anwar and appellant-Lavlu with the victim in the same house, namely the house of informant (P.W. 1). P.W. 2-Mahfuza Begum was the grandmother of the victim and she was in the house of informant (P.W. 1) when victim Sabina was doing study on a bed at the veranda of the house. Accordingly, she (P.W.

2) deposed that accused-Anwar came to her house immediately after the evening and

wanted to eat betel leaf and he sat on a bed at the veranda. At that time, accused-Lavlu was standing holding the roof of the veranda. She also deposed that while she was leaving for her sister’s house, victim-Sabina was doing study on a bed at the veranda. But when she returned from her sister’s house, she found the books of the victim open on the bed and found the victim missing along with the accuseds. The said witness and others then started searching for the victim and, subsequently, found the victim upside down lying on the potol field of Anwar. She also found some earth in the mouth of the victim and saw some burn injuries on the hand and abdomen of the victim apparently given by burning cigarette. They tried to make the victim breathe and save her, but the victim ultimately died.

5.5  This presence of the accuseds immediately before the occurrence at the house of P.W. 1 has also been supported by P.W. 5, who also saw the accuseds being present at the said house at the relevant time. She (P.W. 5) deposed that at the relevant time of occurrence, she was watching TV in the house of P.W. 1, and accuseds-Lavlu and Anwar were standing there. She also supported the deposition of P.W. 2 in respect of recovery of the dead body of the victim and the manner in which she was recovered and subsequent death of the victim. Therefore, at least these two witnesses have categorically proved before the Tribunal that they saw two accuseds, including the appellant, at the house of P.W. 1 immediately before the death of the victim. These depositions of the P.Ws. 2 and 5 may be connected with the confessional statement of accused-Lavlu, if it is found that

such confessional statement of Lavlu is voluntary and true.

5.6  As stated above, the confessional statement of Lavlu was proved by the recording Magistrate (P.W.9) before the Tribunal as Exhibit-8. For the sake of clarity and convenience, we are reproducing the said confessional statement of Lavlu herein below:

“HMe ®b−L A¡e¤j¡¢eL c¤C j¡p A¡−Nl OVe¡, A¡¢j ¢iL¢Vj p¡¢he¡−cl h¡p¡u −V¢m¢ine −cM−a k¡Cz aMe HC h¡p¡u M¡−u−ll hE A¡l p¡¢he¡l c¡c£ ¢Rmz ¢LR¤re fl M¡−u−ll hE Q−m k¡uz Hlfl A¡e¡l p¡¢he¡−cl h¡¢s A¡−pz p¡¢he¡ aMe h¡l¡¾c¡u fs¢Rmz A¡jl¡ O−l ¢V,¢i ¢cM¢Rm¡jz A¡−e¡u¡l @ A¡e¡l A¡p¡−a EW¡−e ®h¢l−u A¡¢p, −c¢M A¡e¡l p¡¢he¡l p¡−b Lb¡ hm−Rz p¤¾cl L−l Lb¡ hm−Rz hm−R A¡S ®a¡−L A¡¢j ¢h−u Llhz A¡j¡l p¡−b Qmz f−L−V V¡L¡ −c¢M−u ®m¡i −cM¡u p¡¢he¡−Lz Hlfl c¡c£l Lb¡ja p¡¢he¡ l¡æ¡Ol −b−L hs O−l i¡a ¢c−u A¡−pz Hlfl A¡e¡−ll

p¡−b p¡¢he¡ ®h¢l−u k¡uz A¡¢j h¡¢sl f−b f¡ h¡s¡Cz ¢LR¤re fl A¡¢j h¡¢sl L¡R¡L¡¢R −k−a A¡e¡l A¡j¡−L a¡l fVm−r−a p¡¢he¡−cl h¡¢sl L¡−R −X−L ¢e−u k¡uz JM¡−e ¢N−u −c¢M A¡e¡l p¡¢he¡l j¤−Ml ¢ial ¢LR¤ HLV¡ ¢c−u doÑZ

Ll−Rz A¡e¡l Hlfl ®e−j A¡j¡−L doÑZ Ll−a h−mz aMe A¡¢j p¡¢he¡−L doÑZ L¢lz Hlfl A¡e¡l A¡−l¡ c¤Ch¡l doÑZ L−lz A¡e¡l i¡la ®b−L L£ ®ke −p„ Hl Kod ¢e−u H−p−Rz −p I Kod −M−u doÑZ L−lz g−m −p HL e¡N¡−l A−eLrZ doÑZ L−lz p¡¢he¡ h¡µQ¡ ®j−u, 8/10 hRl hupz HC c£OÑ pju doÑZ Hl k¿»Z¡ a¡l pqÉ Ll−a f¡l¡l Lb¡ e¡z Hlfl a¡l N¡−ml ¢ial j¡¢V f¤−l ¢c−u¢Rm A¡e¡l k¡−a ®p

në Ll−a e¡ f¡−l g−m n¡l£¢lL Q¡−f a¡l cj hå q−u

k¡Ju¡l HL fkÑ¡−u p¡¢he¡ j¡l¡ k¡uz ¢LR¤re fl p¡¢he¡l

Efl ®b−L A¡e¡l −e−j A¡−pz p¡¢he¡ A¡l ®L¡e i¡−h EW−R e¡ −c−M A¡jl¡ ®j−pl A¡…e SÅ¡¢m−u −QL L¢lz −c¢M −p j−l −N−Rz aMe A¡jl¡ m¡n −l−M k¡l k¡l ja h¡¢s Q−m k¡Cz A¡e¡l k¡Ju¡l pju jªa ®j−ul M¡m¡ a¡−L −c−M ®g−mz A¡e¡−ll N¡−u L¡yc¡ j¡M¡ AhÙÛ¡u ®p −cM−a f¡uz f−l lÉ¡h A¡j¡−cl NË¡−j −N−m A¡¢j i−u A¢ÙÛlz ¢e−Sl j−el i−u f¡m¡−e¡l ®Qø¡ Ll−m ®m¡LSe h¤T−a ®f−l  A¡j¡−L d−l ®g−m f¤¢m−n ®cuz HV¡ NaL¡−ml OVe¡z”

5.7  It appears  from the  recording  such confessional statement that the appellant was arrested at 1:30 am on 18.05.2014 and he was taken to the police station at 11:30 am on the same day and was produced before the said Judicial Magistrate at 12:00 pm on the same day

and the Magistrate started recording his confessional statement at 3:00 pm. It further appears from the said form that columns-5 and 6 of the same have been fully complied with and the same have been signed by the Magistrate concerned and the accused. As against this, if we examine the deposition of P.W. 9, namely the recording Magistrate, in particular his reply in cross-examination, it appears that in reply to a question from the accused, he deposed that he did not tell the accused that he was not police, rather he was a Magistrate.

5.8  However, it appears from Clause-1 of Column-5 of the Form (Exhibit-8) that he signed Column-5 endorsing that he carefully explained afresh to the accused that he was not an officer of police but a Magistrate. Therefore, we do not find any reason as to why the said Magistrate deposed that he did not say the same to the accused. It

further appears from question-1 under Column-6 of the said Form that the Magistrate told the accused that he would not be sent to the police custody, but he did not tell the accused that he would not be sent to the police custody if he did not make confessional statement and he admitted this position in his cross-examination. However, he specifically told the accused that if he made confession, it would be used against him as evidence and this position has been confirmed by the Magistrate by Clause-3 under Column-5 of the form. The Magistrate also admitted the same in the cross-examination that he orally told the accused that the confessional statement could be used against him as evidence. Therefore, apart from some minor ignorable irregularities, we do not find any major incongruity in recording the said confessional statement by the said Magistrate (P.W. 9).

5.9  Learned advocates for the accused also could not shake his such position in extensive cross- examination. On the other hand, it appears from the contents of the said confessional statement that the manner of occurrence, in particular the rape and killing as stated by this appellant in his confessional statement, is clearly supported by substantive evidences, namely the findings of the inquest report (Exhibit-7) and the materials seized by the seizure list (Exhibit-6). Post- mortem report clearly suggests that multiple rape took place on the victim. The said rape was committed in a perverse way, namely that the accused-Anwar was using some sort of medicine from India to increase his stamina, which resulted in the suffocation of the victim. Even the appellant has observed in his confessional statement that the victim was not supposed to endure such long time rape given her age about

8/10 years. This appellant, in the confessional statement, has also stated that Anwar put earth into the mouth of the victim so that she could not make any sound. P.W. 2 categorically deposed that the victim was recovered with the muds into her mouth. Some other witnesses also supported the said claim. The seizure list prepared by P.W. 7, as proved by P.Ws. 3 and 7 as Exhibit-6, and materials (Material Exhibits-I and II) also proved such manner of committing rape. This being so, we have no option but to hold that the confessional statement, as given by this appellant, is not only voluntary one, but the contents of the same are true. This being so, we also have no option but to hold that the statement of this appellant in his confessional statement is categorically supported by substantive evidences, namely, the post-mortem report (Exhibit-7), seizure list (Exhibit-6) and

material exhibits (Exhibits-I and  II). Therefore, although there was no eye witness to the occurrence of rape and killing in this case, the last seen aspect of the accuseds with the victim and other circumstantial evidences were so strong that the chain of such circumstantial evidences could not be broken at all by the extensive cross-examination on behalf of the accused.

5.10  Although a point has been raised by the learned advocate appearing for the appellant as regards alleged mystery surrounding the arrest of the accused, particularly when one of the witnesses (namely P.W. 6) deposed that the accused-appellant was arrested by RAB and that he was kept in custody for one month, we have not found anything on record as to how that witness (P.W.6) made such statement before the Tribunal, particularly when he did not mention

anything as regards the source of his such knowledge or whether he saw the accused

under the custody of RAB anywhere. Learned advocates for the accuseds before the Tribunal

also could not extort any such information from

the said witness. Therefore, we are of the view

that the said deposition of P.W. 6 before the

Tribunal was a mere sweeping remark which

does not have any footing to stand, and the

accused, accordingly, will not get any benefit

from such statement. The other reason for discrediting such deposition of P.W. 6 is the very statement of accused himself in his confessional statement, wherein he concluded the same by