Present:

Mr. Justice Shahidul Karim

and

Mr. Justice Md. Mostafizur Rahman

Death Reference No.125 of 2017

   with

Criminal Appeal No. 11326 of 2017

   and

Jail Appeal No. 370 of 2017

The State.

...………….. Petitioner.

-Versus-

Md. Abul Hossain

                        ....……. Condemned-Prisoner.

Mr. Bashir Ahmed, D.A.G with

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

Ms. Syeda Shobnum Mustary, A.A.G with Mr. Md. Tariqul Islam (Hira), A.A.G.

............ For the State.

Mr. Dipankar Debnath, Advocate 

                 …….. For the Appellant

Heard on 27-02-2024, 28- 02-2024, 03-03-2024 and Judgment on 11-03-2024.

ShahidulKarim, J.

This Death Reference has been submitted by the learned Additional Sessions Judge, 1st Court, Kishoregonj under section 374 of the Code of Criminal Procedure (shortly, the Code) for confirmation of death sentence awarded to condemned accused, Md. Abul Hossain. Accused Md. Abul Hossain was put on trial before  the  Court  of  Additional  Sessions  Judge,  1st  Court,

Kishoregonj to answer charge under section 302 of the Penal Code. Eventually, the learned Additional Sessions Judge found accused Md. Abul Hossain guilty under section 302 of the Penal Code and sentenced him to death vide his judgment and order dated 13-09-2017 recorded in Sessions Case No. 489 of 2011, arising out of Bhairab Police Station Case No. 03 dated 03-04- 2011,  corresponding  to  G.R.  No.  203(2)2011,  and  thereafter, submitted the entire proceedings of the case for confirmation of death sentence imposed upon the accused vide his Office Memo No. 19 dated 13-09-2017. Against the aforesaid judgment and order of conviction and sentence, the condemned accused filed Jail Appeal No. 370 of 2017 followed by a regular Criminal Appeal being No. 11326 of 2017.

Since the death reference and the connected Jail as well as Criminal Appeal sprouted from the same judgment and order of conviction and sentence, they have been heard together and are being disposed of by this consolidated judgment.

The  prosecution  case  originated  from  a  blood-curdling

incident in which an infant, Sumaiya, aged about 1 years was brutally done to death by slaughtering with a sharp cutting blade.

The prosecution case as detailed in the FIR as well as unfurled during trial, in short, is that 3(three) years ago before the incident, informant Suraiya Begum (24) was married off to accused  Md.  Abul  Hossain  (28)  as  per  Islamic  tenants. Thereupon, the aforesaid duo led conjugal life while they were blassed with a female child named Sumaiya (2). The informant went  to  her  in-law’s  house  and  stayed  there  along  with  her daughter. But she got her entangled with altercation with the members of her in-law’s house as well as her husband following which she returned back to her parents’ house 4(four) months prior to the occurrence. Thereafter, the accused often came to the paternal house of the informant with some gifts for his daughter. In the morning of 02-04-2011 at around 8.00 am, accused Md. Abul Hossain came to the paternal house of the informant and went away after staying there for about 1(one) hour. On the date of occurrence i.e. in the morning of 03-04-2011 at about 9.00 am, accused Md. Abul Hossain visited the paternal house of the informant and after entering the room thereof took his daughter Sumaiya Akhter in his lap and went to her (informant) bed-room. At the relevant time, the informant was on the courtyard of the residence.  At  around  9.30  pm  in  the  morning,  upon  hearing

groaning sound of her daughter from her dwelling room, the informant quickly entered the same and found that her husband, accused Md. Abul Hossain was slaughtering her daughter Sumaiya after keeping her on the blanket of the cot (®Q±¢L). Having witnessed the same, the informant raised alarm whereupon the accused tried to flee away after coming out of the P.O. room. The informant then brought the matter to the notice of the persons present there, whereupon the local people caught hold of the accused on chase. Thereafter, the local people went to the P.O. room and saw the cut-throat dead body of victim Sumaiya. Eventually, the matter was brought to the notice of Bhairab Police Station wherefrom police appeared at the spot and arrested the accused. In the meantime, victim Sumaiya was taken to Bhairab Government Hospital wherein the duty doctors declared her death. Following the incident, P.W.2 being informant, filed the FIR with the relevant P.S. which gave rise to Bhairab Police Station Case No.03 dated 03-04-2011.

 After lodgment of the case, police took up investigation of the same and having found prima facie incriminating materials submitted police report against accused Md. Abul Hossain under section 302 of the Penal Code.  It is to  be noted  that during investigation, accused Md. Abul Hossain admitted his guilt by making judicial confession under section 164 of the Code

At the commencement of trial, charge was framed against the accused under section 302 of the Penal Code and the charge so  framed  was  read  over  and  explained  to  the  accused  who pleaded not guilty and claimed to be tried as per law.

In order to bring home the charge, the prosecution had adduced 15(fifteen) witnesses out of 25 (twenty five) witnesses cited in the police report, who were aptly cross-examined by the defence.

After closure of the prosecution witness, the accused was called upon to enter into his defence under section 342 of the Code while he repeated his innocence and declined to adduce any evidence.

The defence case, that could be gathered from the trend of cross-examination of the prosecution witnesses, is of complete innocence and false implication. The further case of the defence is that victim Sumaiya Akhter died having sustained injury from a  fallen  cooking  tool  (M¤¢¿¹)  and  further  that  the  accused  was suffering from mental disorder at the material time.

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

Feeling  aggrieved  thereby,  the  condemned  accused  has preferred Jail Appeal No.370 of 2017 followed by a Regular Criminal Appeal being No.11326 of 2017. As we have already noticed,  the  learned  Additional  Sessions  Judge  has  also submitted the entire proceedings of the case for confirmation of death sentence imposed upon the accused.

Mr. Bashir Ahmed, the learned Deputy Attorney General with Mr. Nirmal Kumar Das and Ms. Syeda Shobnum Mustary, the learned Assistant Attorneys General has appeared on behalf of the State and in support of the death reference having placed the FIR, charge sheet, charge, evidence of witnesses, inquest as well as post-mortem examination report, confessional statement of the accused, impugned judgment and order of conviction and sentence and other connected materials available in the paper

book  submits  with  vehemence  that  the  prosecution  has successfully been able to establish the charge mounted against the accused by adducing some cogent, trustworthy and clinching evidences. He further submits that P.W. 2 Mst. Suraiya Begum, the mother of the unfortunate child is the only eye witness of the occurrence  who  saw  the  accused  to  kill  her  daughter  by slaughtering with a blade and further that she was corroborated by other prosecution witnesses so far the factum of seeing the blood smeared accused and his arrest are concerned. Mr. Bashir Ahmed next submits that the incriminating blood-stained blade was recovered from the possession of accused Md. Abul Hossain which has been brought into evidence and marked as Material Exhibit No.I. The prosecution witnesses in a chorus voice clearly proves that the accused was apprehended immediately after the occurrence on chase while his lungi was besmeared with blood and the said blood stained lungi was given in evidence which has been  marked  as  Material  Exhibit  No.II,  Mr.  Ahmed  further added. Moreover, the accused admitted his guilt in the killing incident  of  his  infant  daughter,  Sumaiya  by  making  judicial confession which was proved by the concerned Magistrate by giving evidence in the court as P.W.1which, on scrutiny, was found to be true, voluntary and inculpatory in nature. He lastly submits  that  the  learned  Judge  of  the  court  below,  upon considering  the  entire  evidences  and  materials  on  record, adjudged the guilt of the accused in the killing incident of the deceased victim and accordingly convicted and sentenced him thereunder by the impugned judgment and order which requires no interference by this court. In support of his submission, the learned Deputy Attorney General has put reliance on the case reported in 73 DLR (AD) 144.

Having refuted the aforesaid submissions, Mr. Dipankar Debnath,  the  learned  Advocate  representing  the  condemned accused  Md.  Abul  Hossain  in  Criminal  Appeal  No.11326  of 2017 has assailed the veracity of the impugned judgment and order on the following counts:

1. that the prosecution witnesses did not corroborate the FIR story so far the apprehension of the accused is concerned after the incident ;
2. that as per FIR story, the accused took his daughter from one room to the P.O. room, but this fact did not find place in the evidence of the prosecution witnesses;

3. that the accused was suffering from mental disorder at the time  of  occurrence  as  a  result  he  was  unaware  of  the consequence of his own act; and
4. that  in  his  confession  the  accused  disclosed  that  he inflicted   2/3  strokes  with  blade  on  the  neck  of  his daughter, but during post-mortem examination, only one injury was found on the neck of the victim.

In a last ditch attempt, Mr. Dipankar Debnath submits that if the conviction of the accused is maintained in that event his sentence may be commuted from death to imprisonment for life.

Heard the learned Advocates of both sides and perused the impugned  judgment  and  order  including  other  connected materials available in the paper book and also considered the facts and surrounding circumstances of the case explicitly.

With a view to arriving at a correct decision in the death reference and the connected Jail as well as Criminal Appeal, let us now sift and weigh the relevant evidences together with the facts and circumstance of the case by juxtaposing the defence version of the case.

P.W.1  Muhammad  Ali  Ahsan  is  the  relevant  Senior Judicial  Magistrate  who  jotted  down  the  confession  of  the accused. This witness testifies that he recorded the confessional statement of accused Abul  Hossain under section 164 of the Code.  He  further  states  that  the  accused  was  given  time  for reflection. The confessional statement of the accused is true and voluntary.  This  witness  proves  the  confessional  statement including his signature appearing thereon as Exhibit Nos. 1 and 1(1) respectively. 

In reply to cross-examination P.W.1 states that the accused disclosed in his confession that his wife used to maintain extra- marital relation with one Jamshed and when he used to have intercourse with his wife, he felt that his chest and throat were burning and his hands and legs were about to be broken. The accused further disclosed that he was possessed by evil spirit and for that he gave 2/3 strokes on the neck of victim Sumaiya. P.W.1 has denied the defence suggestion that the accused was frustrated  and  mentally  depressed  at  the  time  of  making confession.

P.W.2 Mst. Suraiya Begum is the informant of the case as well  as  the  mother  of  deceased victim  Sumaiya  (2). In  her testimony this witness gives out that the occurrence took place in the morning of 03-04-2011 at around 9.00 am at the residence of her father. During her wedlock with accused Abul Hossain, they were blessed with a daughter. Prior to the incident, a quarrel occurred between  her (P.W.2) and  her husband including his family members. At one stage, she came back to her father’s house along with her daughter. Her husband used to come to her father’s  house  every  now  and  then  with  some  gifts  for  his daughter. Her husband came to her father’s house before the date of occurrence i.e. on 02-04-2011 and stayed there for an hour. On  the  date  of  occurrence,  her  husband  again  came  to  her father’s house at about 9.30 am and hugged his daughter while she (P.W.2) came out of the room. He (accused) then slaughtered his daughter with blade and cut her throat. She heard sound of groaning,  whereupon  she  entered  the  room  and  saw  that  the accused was slaughtering her daughter with a blade after putting her over a blanket on the cot. Upon seeing her, the accused tried to flee while he was detained. The matter was then brought to the notice of the local police station, wherefrom police appeared at the spot and arrested the accused. Police also seized a sharp cutting ‘sharp blade’ and other alamats. Eventually, she lodged the  case  with  Bhairab  Police  Station.  P.W.2  proves  the  FIR including her signature appearing thereon as Exhibit Nos.1 & 1/1

In reply to cross-examination P.W.2 states that the FIR was written by police and she put her signature thereto after going through the contents thereof. 4(four) months prior to the occurrence, she came to her paternal house and thereafter, she did not meet the accused. P.W.2 denied the defence suggestions that the accused was a mentally handicapped person or that he was falsely implicated in the case or that she came to her paternal house as because the accused was an insane.

In his testimony P.W.3 Md. Misthu Miah divulges that the occurrence took place in the morning of 03-04-2011 at around 9.30 am. The informant and the accused are respectively husband and wife. He did not witness any incident, rather he heard that accused Abul Hossain slaughtered his female child. The inquest of the dead body of the deceased was held in his presence to which he put his signature.

In  reply  to  cross-examination  P.W.3  says  that  the informant  is  his  sister  by  village  courtesy.  P.W.3  denied  the defence suggestions that the accused was an insane or that he did not  hear  that  accused  Abul  Hossain  slaughtered  his  own offspring.

P.W.4 Kalachand is the father of the informant. In his deposition this witness avers that the occurrence had happened in the morning of 03-04-2011 at around 9/9.30 am and the place of occurrence is his (P.W.4) own residence. Accused Abul Hossain is his son-in-law ( Before the incident a quarrel took place between the accused and his (P.W.4) daughter following which his daughter came back to his house along with her infant daughter. At the time of occurrence, his grand-daughter (

was aged about 2(two) years. The accused often visited his house while his daughter used to stay in his house. In the morning of the date of occurrence at around 8.00 am, the accused came to his house and slaughtered his grand-daughter ( Sumaiya with a blade. Upon hearing groaning sound, his daughter entered the P.O. room and found that the accused was slaughtering his own daughter. The accused was about to flee the spot while, upon hearing clamour, the neighbouring people were coming to the spot. Thereafter, his grand-daughter was taken to Bhairab Upazila Hospital, wherein the duty doctors proclaimed her death.

Following the incident, his (P.W.4) daughter filed the case and police took away accused Abul Hossain under arrest.

In reply to cross-examination P.W.4 states that he did not see  the  incident  of  slaughtering.  P.W.4  denied  the  defence suggestions that the accused was an insane person for a long time or that the accused did not slaughter his grand-daughter.

In  his  deposition  P.W.5  Md.  Alam  discloses  that  the occurrence took place in the morning of 03-04-2011 at around 9/9.30 am at the paternal house of the informant. The informant and the accused are familiar to him. At the relevant time, they were playing while people came forward to catch blood smeared accused Abul Hossain following which they (P.W.5) captured him (accused). Thereupon, they came to learn that the accused slaughtered  his  own  daughter.  The  victim  daughter  of  the informant was taken to hospital, but she died. P.W.5 identifies accused Abul Hossain in the dock.

In reply to cross-examination P.W.5 says that he did not see the incident of killing of the victim. At the material time, the wife of the accused had been staying in her paternal house. The accused was caught at the rear end of village Gagirtek while Rouf  member,  Jonayed  and  many  other  people  were  present there. Upon apprehension, the accused was taken to the house of the informant where he was fastened up. He (P.W.5) did not hear anything regarding the insanity of the accused. P.W.5 denied the defence suggestion that the accused was implicated in the case as he was an insane person.

In  his  testimony  P.W.6  Badal  Miah  divulges  that  the occurrence came to pass in the morning of 03-04-2011 at around 9/9.30  am.  The  informant  and  the  accused  are  respectively husband and wife. Having heard outcry after the incident, he went to the spot running and found that the people caught hold of blood-smeared accused. Thereafter, he brought the accused to the paternal house of the informant, whereupon he came to learn that the  accused  slaughtered  his  own  daughter.  Eventually,  police took away the accused.

In reply to cross-examination P.W.6 states that he did not see the incident of slaughtering, rather he found victim Sumaiya in slaughtered position. The accused often visited the paternal house of the informant. They (P.W.6) knew nothing about the insanity of the accused. P.W.6 denied the defence suggestions

that he suppressed the truth about the insanity of the accused or that the accused did not slaughter his own daughter.

P.W.7 Osman Miah is the brother of the informant. In his evidence this witness asserts that the occurrence had happened in the morning of 03-04-2011 at around 9.30 am at the house of the informant’s father. Victim Sumaiya (3) had been killed. He went to feed cattle while he found that the accused was fleeing in blood smeared position after coming out of the P.O. room. At the material time, the woman of the P.O. house raised alarm while the  accused was running  away  from  the spot. Thereupon, he along with others chased after the accused running. There was a brick  field  infront  of  them  and  on  their  (P.W.7)  request  the workers of the same kiln detained the accused. Thereafter, the accused was brought to the P.O. house and later he was handed over to the police. P.W.7 identifies accused Abul Hossain in the dock.

In reply to cross-examination P.W.7 says that he did not see the incident of killing of his niece ( His (P.W.7) sister came to their house 10 to 15 days prior to the incident. P.W.7 denied the defence suggestion that the accused was a delirious person.

In her testimony P.W.8 Shuva Begum claims that she was acquainted with the informant as well as the accused who are respectively husband and wife. The occurrence passed off in the morning  of  03-04-2011  at  around  9.30  am  and  the  place  of occurrence is the paternal house of the informant. At the relevant

time, the age of the informant’s daughter, Sumaiya was about 1/ years. Accused Abul Hossain slaughtered his infant daughter, Sumaiya. She had gone to through away cow-dung while she found  that  accused  Abul  Hossain  besmeared  with  blood  was coming out of the paternal house of the informant. Upon seeing the  same,  they  (P.W.8)  raised  alarm  while  the  neighbouring people caught hold of the accused. P.W.8 identifies accused Abul Hossain in the dock.

In reply to cross-examination P.W.8 says that she did not see  the  incident  of  slaughtering  committed  the  accused.  She found the accused on the western side road of the P.O. house. The  accused  was  not  insane  from  before.  P.W.8  denied  the defence suggestions that the accused was mad or that he did not commit the murder.

In his testimony P.W.9 A. Rouf member testifies that the occurrence had occurred in the morning of 03-04-2011 at around 9.30 am at the paternal house of the informant. The informant and  the  accused  are  respectively  husband  and  wife.  The informant came to her paternal house due to altercation with her husband (accused). On the date of occurrence the accused came to the paternal house of the informant. At the material time, he (P.W.9) was sleeping at the adjacent room of the P.O. room. Upon hearing alarm, he aroused and found that the accused was fleeing from the P.O. room while the local people caught hold of him.  The  accused  Abul  Hossain  slaughtered  his  own  infant daughter  with  a  sharp  cutting  blade.  Later,  the  wife  of  the accused filed the case. Police seized the wearing check lungi of the accused vide seizure list (Exhibit No.4) to which he put his signature  (Exhibit  No.4/1).  P.W.9  proves  the  seized  lungi  as Material Exhibit No.I and also identifies accused Abul Hossain in the dock.

In reply to cross-examination P.W.9 says that he did not witness the accused to kill his daughter. The accused was not mentally  ill.  P.W.9  denied  the  defence  suggestions  that  the

accused was mentally ill as such he was falsely entangled in the case or that he deposed falsely.

P.W.10 Md. Dhan Miah is the brother of the informant. In his evidence this witness avers that both the informant and the accused  are known to him.  The  occurrence took place about 3(three) years ago at the house of the informant. Accused Abul Hossain slaughtered his infant daughter with a blade as a result she died. At the relevant time, the age of the victim child was about 2(two) years.

In reply to cross-examination P.W.10 states that he did not find any strife between the accused and his wife. He did not witness the incident of killing by his own eyes. P.W.10 denied the defence suggestions that the accused did not slaughter his own  offspring  with  blade  or  that  he  deposed  falsely  as  the informant is his sister.  

P.W.11 Md. Aziz Miah and P.W.12 Md. Full Miah were tendered by the prosecution and the defence also declined to cross-examine them.

P.W.13 S.I. Syed A. Mannan is the 1st Investigating Officer of the case. In his deposition this witness avers that on 03-04-

2011, he was posted at the outpost of Bhairab Police Station under Kishoregonj District. On the same date while he was on special  duty  along  with  other  forces  within  the  periphery  of Bhairab Police Station, he was instructed over wireless to go to the Bhairab Upazila Hospital urgently. On going there, he found deceased victim Sumaiya lying on a stretcher. Thereafter, he held inquest  (Exhibit  No.3)  of  the  deceased  victim  and  put  his signature (Exhibit  No.3/2) thereto and  sent the dead body  to Kishoregonj  Adhunik  Sadar  Hospital  for  autopsy.  The neighbouring people caught hold of accused Abul Hossain due to alarm raised by the  mother of the deceased including others. Thereupon,  S.I.  Manik  Banik  along  with  police  personnel appeared at the spot and took the accused to the police station. During investigation, he visited the spot and prepared sketch map along  with  index  (Exhibit  No.5)  thereof,  seized  alamats  vide seizure list. By dint of a seizure list he seized a Sharp blade and other alamats (already marked as Material Exhibit No.I series). He seized the blood smeared wearing lungi of the accused from infront of Thana hazat vide seizure list (Exhibit No.6). On the strength  of  another  seizure  list  (Exhibit  No.7),  he  seized  the blood stained cut piece of a half-pant as well as a cut piece of

Nima  ( of  the  deceased  victim.  He  also  made  necessary arrangements  for  recording  the  confessional  statement  of  the accused by a competent Magistrate and also examined witnesses under section 161 of the Code. Later, he handed over the case docket to the Officer-in-Charge of Bhairab Police Station due to his transfer elsewhere. P.W.13 proves the seized lungi as well as the blood stained wearing apparels of the deceased victim as Material Exhibit Nos.II and III series respectively.

P.W.13 denied the defence suggestions that he did not carry out  the  investigation  properly  or  that  the  accused  made confession as tutored by the police.

P.W.14  Inspector  Md.  Shajahan  Kabir  is  the  recording officer as well as the 2nd Investigating Officer of the case. In his evidence this witness claims that on 03-11-2011, he was posted as Officer-in-Charge at Bhairab Police Station, while he received a written FIR along with apprehended accused Abul Hossain, whereupon he registered the case and handed over the task of investigation  to  S.I.  Abdul  Mannan  (P.W.13)  who  prepared sketch map along with index of the P.O. and made necessary arrangements for recording the confessional statement of accused Abul Hossain. S.I. Abdul Mannan also held inquest of the dead

body of deceased victim and sent it to the morgue of Kishoregonj Sador Hospital for post-mortem examination and further that he also recorded the statement of witnesses under section 161 of the Code.  On  27-04-2011,  he  (P.W.14)  took  the  charge  of investigation as the earlier investigating officer was transferred elsewhere.  During  his  investigation,  he  visited  the  spot, examined witnesses and consulted the case record prepared by the earlier investigating officer. However, having found prima- facie incriminating materials, he submitted police report against accused  Abul  Hossain  under  section  302  of  the  Penal  Code. P.W.14 proves the FIR form including his signature appearing thereon as Exhibit Nos.8 & 8/1 respectively.

P.W.14  denied  the  defence  suggestions  that  the investigation of the case was not done properly or that deceased victim Sumaiya died upon being hurt from a fallen cooking tool (

P.W.15 Dr. Muhammad Abdul Mukit is a member of the medical  board  which,  on  04-04-2011,  held  autopsy  of  the cadaver of deceased victim Sumaiya (2), at the identification of Constable No.205 Forkan Ali and found the following injuries:

“On cut throat wound on the front of neck extending from left side of neck to right upper part of neck measuring 6" x 1" with  cutting  of  underlying  muscles,  both  common  carotid arteries, trachea and oesophagus.”

On dissection: Ecchymoses and clotted blood was found in an  around  the  injuries.  Both  common  carotid  arteries  and oesophagus were completely cut.

According to their opinion, the death was caused due to shock  and  haemorrhage  as  a  result  of  the  above  mentioned injuries  which  were  ante-mortem  and  homicidal  in  nature. P.W.15 proves the post-mortem report including his signature appearing thereon as Exhibit Nos.9 and 9/1 respectively.

In reply to cross-examination P.W.15 says that an infant cannot  make  noise  after  sustaining  the  aforementioned  cut injuries.

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

Having  waded  through  the  evidences  and  materials  on record, it is patent that there is no dispute about the time, place and manner of occurrence. Even, the defence did not dispute the brutal  killing  incident  of  victim  Sumaiya  Akhter  (2)  by slaughtering.  Nevertheless,  since  the  matter  involves  capital punishment in the form of death penalty, we feel it necessary to

have a look at the inquest report to see for ourselves as to what

injury  or  injuries  were  found  on  the  person  of  the  deceased

victim at the initial stage of the case and what the apparent cause

of death.

The inquest report of deceased victim Sumaiya Akhter has

been marked as Exhibit No.3 of which, the relevant portion is

quoted below in verbatim: 

“jªa¡l hup Ae¤j¡e 02 c¤C hvpl qC­hz N¡­ul lw gpÑ¡ j¤Mjäm

®N¡m¡L¡lz j¡b¡u ®R¡V mð¡ Ae¤j¡e 21 ″ L¡­m¡ Q¥m B­Rz jªa¡l ®Q¡M c¤C¢V AdÉ

j¤¢ca AhÙÛ¡u B­Rz e¡L J L¡e c¤C¢V ü¡i¡¢hL AhÙÛ¡u B­Rz j¤M ®M¡m¡ AhÙÛ¡u B­Rz Nm¡ d¡l¡­m¡ ®hÔX ¢cu¡ L¡V¡ lš²¡š² AhÙÛ¡u B­Rz q¡a c¤¢V nl£­ll c¤Cf¡­nÄÑ mð¡ m¢ð AhÙÛ¡u B­Rz c¤C¢V q¡­al B‰¤m AdÉ j¤¢ù AhÙÛ¡u B­Rz f¡ c¤C¢V mð¡ m¢ð AhÙÛ¡u B­Rz f¡­ul B‰¤m ü¡i¡¢hLz jªa¡l fl­e L¡­m¡ q¡g fÉ¡¾V J N¡­u M­ul£

L¡­m¡ ¢nV L¡f­sl HL¢V ¢ej¡ B­Rz jª­al N¡­ul ¢ej¡ l­š² ¢iS¡ AhÙÛ¡u J

fÉ¡­¾Vl ¢fR­e p¡j¡eÉ lš² B­Rz jªa¡l jªa ®cq¢V a¡l j¡­ul pq¡ua¡u m¡n¢V EmV

f¡mV ®c¢Mm¡jz jªa¡l nl£­l AeÉ ®L¡b¡J a¡l ­L¡e SMj h¡ BO¡­al ¢Qq²

f¢lm¢ra qCm e¡z jªa¡l ®k±e¡­‰ J jmà¡­l ®L¡e ¢LR¤ ®cM¡ k¡u e¡Cz”

(Emphasis added).

From the aforesaid narration, it appears manifestly that a

cut throat injury was found on the neck of the victim whose

wearing apparels were besmeared with blood.

Regarding cause of death, it has been stated in Exhibit

No.3 that:  

“Bj¡l fË¡b¢jL ac¿¹L¡­m S¡e¡ k¡u AcÉ Cw03/04/11 a¡¢lM pL¡m

Ae¤j¡e 09.35 O¢VL¡l pju jªa¡l ¢fa¡ ®j¡x Bh¤m ®q¡­pe Aœ b¡e¡d£e N¡S£l­VL f¢ÕQjf¡s¡ÙÛ a¡q¡l nÄöl¡mu ®c¡Q¡m¡ ¢V­el hpa O­l Ef¢ÙÛa b¡¢Lu¡ f¡¢lh¡¢lL Lm­ql ®Sl d¢lu¡ a¡q¡l Eš² ¢nö LeÉ¡ p¤j¡Cu¡ M¡a¥e­L d¡l¡­m¡ ®hÔX à¡l¡ Nm¡u ®f¡Q ¢cu¡ Sh¡C L¢lu¡ ¢ejÑj i¡­h qaÉ¡ L­lz ”

(Emphasis put).

It, therefore, appears that on preliminary investigation, it

was found that due to family feud accused Md. Abul Hossain

killed his infant daughter Sumaiya Akhter by slaughtering with

blade.

It is on record that P.W.15 Dr. Md. Abdul Mukit was a

member of the medical board which, on 04-04-2011 at 10.00 am,

held autopsy of the cadaver of deceased victim Sumaiya Akhter

and found the following injury:

“One cut throat wound on the front of neck extending from

left side of neck to right upper part of neck measuring 6″ X 1″

with  cutting  of  underlying  muscles,  both  common  carotid arteries, trachea and oesophagus.

On dissection; Ecchymoses and clotted blood was found in and around the injuries. Both common carotid, arteries, trachea and oesophagus were completely cut.

According to the medical board, the cause of death of the deceased victim was due to haemorrhage as a result of the above mentioned  injury  which  was  ante-mortem  and  homicidal  in nature.  P.W.15  proves  the  post-mortem  report  including  his signature  appearing  thereon  as  Exhibit  Nos.  9  and  9/1 respectively. We find nothing on record to discard the evidence of P.W.15 who is a medical expert so far the cause of death of the deceased  victim  Sumaiya  Akhter  is  concerned.  Even,  the defence also did not try to dispute the medico-legal evidence furnished by P.W.15. It appears that the post-mortem report also comes in agreement with that of the inquest report so far the injury found on the person of the deceased victim is concerned. In such a backdrop, we have no other alternative but to hold that deceased victim Sumaiya Akhter was brutally murdered.

Now,  the  most  striking  question  that  calls  for  our determination is, who is or are the actual assailant or assailants of

deceased victim Sumaiya Akhter.

Upon skimming through the evidences and materials on

record, it appears that P.W. 2 Mst. Suraiya Begum, wife of the

accused as well as the mother of the deceased victim Sumaiya is

the  only  star  witness  of  the  incident  who  on  the  date  of

occurrence  found  her  husband  to  slaughtering  her  daughter,

Sumaiya  Akhter.  To  comprehend  the  matter  in  his  true

perspective, it would be profitable to quote the relevant evidence

of P.W.2 in verbatim which reads as under:

“OVe¡ 03/04/11Cw pL¡m p¡­s 9 V¡ OVe¡ÙÛm Bj¡l ¢fa¡l hpa h¡s£z j¡jm¡ Ll¡l pju Bj¡l ¢h­ul hup Ae¤j¡e 2 hRlz Bjl¡ ü¡j£ Ù»£ l¦­f Ol pwp¡l

Ll¡ AhÙÛ¡u Bh¤m ®q¡­p­el J~l­o Bj¡l N­iÑ HL¢V LeÉ¡ p¿¹¡e quz LeÉ¡l hup

¢Rm Ae¤j¡e 121 hRlz OVe¡l f§­hÑ Bj¡l ü¡j£ J a¡l f¢lh¡­ll ®m¡­Ll p¡­b Bj¡l

TNs¡ ¢hh¡c quz TNs¡l HL fkÑ¡­u B¢j Bj¡l LeÉ¡ p¿¹¡e ¢e­u Bj¡l ¢fa¡l h¡s£­a Q­m B¢pz Bj¡l ü¡j£ j¡­T j¡­T Bj¡l ¢fœ¡m­u Bpa Hhw LeÉ¡l SeÉ ¢S¢ep fœ Beaz OVe¡l f§­hÑl ¢ce AbÑ¡v 02/04/11Cw a¡¢lM pL¡m 8 V¡l pju Bj¡l ü¡j£ Bj¡l ¢fœ¡m­u H­p O¾V¡ M¡­eL ®b­L Q­m k¡uz Hlfl OVe¡l a¡¢lM

pL¡m 921 V¡l ¢c­L Bj¡l ü¡j£ Bj¡l ¢fœ¡m­u H­p Bj¡l LeÉ¡­L ®L¡­m ­euz

B¢j h¡¢q­l k¡Cz ®p h¡µQ¡­L ¢e­u ¢LR¤ pju ®b­L ®hÔX ¢c­u ®p ®j­u­L Nm¡u Sh¡C L­lz ®j­ul ®N¡wl¡­e¡ n­ë O­l ¢N­u ®c¢M ®j­u­L ®Q±¢Ll Efl Lð­ml

Efl ®n¡u¡­u ®hÔX ¢c­u Bj¡l ®j­u­L Sh¡C Ll­Rz”

    (Underlining is ours).

From  the  evidence  P.W.  5,  P.W.6,  P.W.7,  P.W.8  and

P.W.9, it further appears that immediately after the occurrence,

they found blood smeared accused Md. Abul Hossain fleeing the

spot, whereupon some of them caught hold of him on chase. To

conceive the matter in its proper way, we are to refer to the

relevant evidences of the witnesses.

It is testimony P.W. 5 Md. Alam asserts that:

1

“OVe¡ Cw 03/04/11 a¡¢lM pL¡m 9/92  V¡l pjuz h¡c£ J Bp¡j£­L

¢Q¢ez B­N Bp¡j£­L ¢Qea¡j e¡z Bj¡­cl NË¡­j h¡¢ce£l ¢fa¡l h¡s£­a OVe¡z Bjl¡ ®Mm¢Rm¡jz lš²¡š² AhÙÛ¡u Bp¡j£ Bh¤m­L ®m¡LSe dl­a Bp­m Bjl¡ a¡­L d¢lz dl¡l fl ö¢e ®k, ®p a¡l ¢e­Sl ®j­u­L Sh¡C L­l qaÉ¡ L­l­Rz h¡µQ¡l j¡ J AeÉl¡ h¡µQ¡­L q¡pf¡a¡­m ¢e­u k¡uz ®p j¡l¡ ®N­Rz Bp¡j£ X­L pe¡š²z”

In his deposition P.W.6 Badal Miah avers that:

In his evidence P.W.7 Osman Miah gives out that:

“OVe¡ Cw 03/04/11 pju pL¡m 921  V¡z OVe¡ÙÛm h¡c£l ¢fœ¡muz M¤e qu

p¤j¡Cu¡z a¡l hup ¢Rm 3 hRlz B¢j Nl¦­L M¡h¡l ¢c­a k¡Cz Bp¡j£ h¡µQ¡V¡­L M¤e L­l Ol lš²j¡M¡ nl£­l ®hl q­u k¡h¡l pju B¢j ®c¢Mz aMe h¡s£l j¢qm¡l¡ ¢Qõ¡ ¢Q¢õ öl¦ L­lz Bp¡j£ ®c±s¡­u ®k­a b¡­Lz B¢j a¡l ¢fR­e ®m¡LSe ¢e­u ®c±­s k¡Cz p¡j­e CV ­M¡m¡ ¢Rmz CV ®M¡m¡l nË¢jLl¡ BN¡­u Bp­m a¡­cl hm­m a¡l¡ Bp¡j£­L BVL L­lz a¡lfl Bp¡j£­L OVe¡ÙÛ­m ¢e­u H­p f¤¢mn­L Mhl ¢c­m f¤¢m­n ®cu¡ quz B¢j OVe¡l 4 ¢ce fl c¡­l¡N¡l L¡­R p¡rÉ ¢c­u¢Rz p¤j¡Cu¡l j¡ h¡c£ q­u H j¡jm¡ L­lz Bp¡j£ Bh¤m ®q¡­pe L¡WNs¡u B­Rz”

In her evidence P.W. 8 Mst. Shuva Begum unfurls that:

“B¢j j¡jm¡l h¡c£ J Bp¡j£­L ¢Q¢ez a¡l¡ ü¡j£-Ù»£z OVe¡ 03/04/11 Cw

pL¡m Ae¤j¡e 921 V¡l pjuz h¡c£l h¡µQ¡ p¤j¡Cu¡l hup ¢Rm Ae¤j¡e 121 hRlz

h¡c£¢el ¢fœ¡m­u OVe¡z Bp¡j£ Bh¤m ®q¡­pe a¡l ¢nö h¡µQ¡ p¤j¡Cu¡ ®L Sh¡C L­l ®g­mz B¢j ®N¡hl ®gm­a ¢N­u ®c¢M Bh¤m ®q¡­pe h¡c£¢el ¢fa¡l hpaOl q­a lš²¡š² AhÙÛ¡u ®hl q­u k¡­µRz aMe Bjl¡ X¡L ¢QvL¡l Ll­m ®m¡LSe H­p a¡­L BVL L­lz Bh¤m ®q¡­pe X­L pe¡š²z”

In his testimony P.W.9 A. Rouf Member discloses that:

“OVe¡ 03/04/11 Cw pL¡m Ae¤j¡e 921  V¡l pjuz OVe¡ h¡c£¢el

¢fœ¡m­uz h¡c£ J Bp¡j£ ü¡j£-Ù»£z h¡c£l p¡­b Bp¡j£l TNs¡l g­m h¡c£¢e a¡l

¢fœ¡m­u h¡s£­a Q­m B­p OVe¡l a¡¢l­M Bp¡j£ B­pz OVe¡u f¡­nl O­l B¢j O¤j¡­u ¢Rm¡jz ¢QvL¡l ö­e E­W ­c¢M Bp¡j£ h¡c£¢el ¢fa¡l Ol q­a ®hl q­u ®k­a b¡L­m ®m¡LSe a¡­L BVL L­lz Bp¡j£ Bh¤m ®q¡­pe d¡l¡­m¡ ®hÔX ¢c­u ¢e­Sl ¢nö h¡µQ¡­L Sh¡C L­lz”

From  the  aforesaid  narration,  it  revels  clearly  that

immediately after the occurrence, the accused was apprehended

on chase while his wearing apparels were besmeared with blood.

From the evidence of P.W. Nos.2, 9 and 13, it further

appears that a sharp cutting crime blade was recovered from the

possession of accused Md. Abul Hossain and his blood smeared

lungi was also seized and those alamats were produced in the

court and marked as Materials Exhibit Nos.I and II respectively.

By  giving  suggestions  to  the  relevant  witnesses,  the

accused put forward his defence that at the material time he was

suffering  from  mental  disorder  due  to  proverty,  but  nothing

tangible  is  found  on  record  in  support  of  his  aforesaid  plea.

Therefore, the aforesaid plea will not come in any aid of the

accused.

Materials on record further go to show that there is another

important piece of evidence in embroiling the accused in the

infernal killing incident of deceased victim Sumaiya Akhter. On

perusal of the record, it further appears that during investigation,

accused Md. Abul Hossain made judicial confession which has

been marked as Exhibit No.1.

It is by now well settled that an accused person can be

found guilty and convicted solely banking on his confessional

statement if, on scrutiny, it is found to be true, voluntary and

inculpatory  in  nature.  To  find  out  whether  the  confession  of

accused Md. Abul Hossain has satisfied all the aforesaid criterion

or not, we may now have a peep at the confession of the accused

which reads as under:

“B¢j ¢lLÊ¡ Q¡m¡Cz B¢j 02 hRl f§­hÑ Bj¡l j¡j¡a ®h¡e p¤l¡Cu¡­L f¡¢lh¡¢lLi¡­h ¢h­u L¢l J Bj¡­cl 01 ¢V ®j­u qu a¡l e¡j p¤j¡Cu¡z B¢j ¢h­ul

fl Bj¡l hE­L Bj¡l ¢fa¡ h¡s£­a ¢e­u k¡uz A¡j¡l ¢fa¡j¡a¡l p¡­b h¢ehe¡ e¡

qJu¡u Ù»£­L öñf¤l f¡L¡l j¡b¡­a h¡p¡u ¢e­u k¡uz ®pM¡­e Bj¡l Ù»£ A®~hdi¡­h Sj­p­cl p¡­b ®jm¡­jn¡ L­lz Bj¡l Ù»£ a¡l c¤m¡i¡C j¢al p¡­b J A®~hd ®jm¡­jn¡ L­lz B¢j ®k¢ce Sj­pc Bj¡l Ù»£­L doÑZ L­l I ¢ce l¡­a Ù»£l p¡­b ®jm¡­jn¡l pju ®c¢M Bj¡l Ù»£ ®N¡fe A­‰l fcÑ¡ g¡V¡z B¢j avfl hE­ul p¡­b

n¡¢ll£Li¡­h ¢j¢ma qC avfl B¢j doÑ­el ¢hou h¤T­a ®f­l hE­L h¢m k¡ qh¡l qC­Rz Bj¡l SeÉ i¡a l¡dz B¢j ¢lLÊ¡ Be­a k¡u z

Bj¡l Ù»£ Bj¡l SeÉ i¡a l¡æ¡ e¡ L­l Sj­pc­L l¦¢V h¡e¡­u M¡Ju¡uz

B¢j l¡­N Ù»£­L j¡ldl Ll­m ®p a¡l h¡­fl hs£­a k¡uz avfl Bj¡l M¡l¡f

m¡N¡u B¢j ööl h¡s£­a j¡­T j¡­T k¡Ca¡jz

OVe¡l ¢ce B¢j 41 V¡L¡ ¢lLÊ¡ Q¡m¡­u Bu L­l e¡Ù¹¡ L¢l J HLV¡ ®hÔX ¢L­e ööl h¡s£­a k¡uz Bj¡l ¢euÉa L¢l hE­L ®j­l ¢T­L (®j­u­L) ®j­l ea¥e

HLV¡ ¢h­u Ll­h¡z L¡lZ Bj¡l hE­ul doÑ­el fl B¢j a¡l p¡­b ¢j¢ma q­m

Bj¡l Nm¡-h¤L SÆm­a¡ J q¡a-f¡ i¡w¢Nu¡ f­l k¡Caz I¢ce Bj¡l ööl h¡s£­a

®k­u Bj¡l ®j­u­L ®L¡­m L­l h­p¢Rm¡jz Bj¡l ®j­u­L A­e­L ®L¡­m ¢e­a Q¡C­mJ Bj¡l ®j­u L¡lJ ®L¡­m k¡u e¡Cz a¡lfl Bj¡l j¡b¡u i¨­al A¡Ql

qJu¡u Bj¡l ®j­u p¤j¡Cu¡­L Nm¡u 2/3 V¡ Bj¡l q¡­a b¡L¡ ®hÔX ¢c­u ®f¡R ®cuz ®f¡R ®cu¡l fl B¢j ®j­u­L e¡ ®c­M ®c¡~s ®cC avfl 2/3 Se Bj¡­L CV­M¡m¡l L¡R q­a d­l ööl h¡s£­a ¢e­u ®hy­d f¤¢m­n Mhl ¢c­m f¤¢mn Bj¡­L b¡e¡u ¢e­u k¡uz HC Bj¡l Sh¡eh¾c£z”

(Emphasis added).

From the aforesaid discussions, it is apparent that accused

Md. Abul Hossain admitted in his confession that he slaughtered

her daughter Sumaiya Akhter with a blade, and thereafter, he left

the P.O. spot running, whereupon 2 or 3 persons detained him

from the nearby area of a kiln, and eventually, police arrested

him. It further appears that in his confession the accused had tried to establish that being swayed away by the extramarital relation of his wife, he killed his daughter with blade and further that at the relevant time he was possessed by an evil force. But, in the facts and circumstances of the case, it appears that the plea taken by the accused is nothing but a ruse in order to avoid his criminal liability in the killing incident of his infant daughter inasmuch as no evidence, either oral or documentary, was found on record in support of the aforesaid plea of the accused.

P.W.1 Md. Ali Ahsan is the relevant Magistrate who got down the confessional statement of accused Md. Abul Hossain. From  a  combined  reading  of  the  evidence of  P.W.1  and  the confessional statement (Exhibit No.1) of the accused, it reveals that the relevant Magistrate undertook genuine effort to find out the true character of the confession and being satisfied about the voluntariness  and  truthfulness  of  the  confession,  he  jotted  it down  and  thereafter,  it  was  read  over  and  explained  to  the accused  who  admitted  the  same  to  be correct  by  putting  his signature  thereto.  Exhibit  No.1  further  reveals  that  being repented,  accused  Md.  Abul  Hossain  has  made  confession. Therefore, the confession of the accused can be regarded as true, voluntary and inculpatory in nature. Even, the accused did not retract his confession by filing an application after coming out of the clutches of police and further that he also did not raise any objection  touching  the  voluntary  character  of  the  confession while his attention was drawn to his confession at the time of examination under section 342 of the Code.

Contention has been raised on behalf of the defence that the  prosecution  witnesses  did  not  corroborate  the  factum  of apprehension of the accused after the incident as detailed out in the  FIR  which  entertains  doubt  about  the  veracity  of  the prosecution case. This argument of the learned defence Advocate is untenable in law as because as per FIR story, upon hearing alarm of the informant (P.W.2), the neighbouring people present on the spot at the material time caught hold of the accused while he  tried  to  flee  upon  coming  out  of  the  P.O.  room.  In  his evidence the informant (P.W.2) gives out that the accused was detained  while  he  tried  to  flee  the  spot  upon  seeing  her (informant). Having seconded the aforesaid evidence of P.W.2, P.W.8 Mst. Shuva Begum disclosed in her evidence that she found accused Abul Hossain besmeared with blood who came out of the dwelling hut of the informant’s father and was trying to flee therefrom. On the other hand, P.W. 5 Md. Alam, P.W.6 Badal Miah and P.W.7 Osman Miah are the persons who made statement in unison that they caught hold of the accused on chase and thereafter, he was taken to the P.O. spot, wherefrom he was handed over to the police. In such a backdrop, the argument advanced by the learned defence Advocate on this count cannot be countenanced.

It has further been contended on behalf of the defence that according to the FIR story, before the occurrence the accused took his daughter from 01(one) room to the P.O. room, but the prosecution witnesses did not support the aforesaid case as made out  in  the  body  of  the  FIR.  It  is  true  that  the  prosecution witnesses did not literally prove the above factual aspect of the case, but that alone will not create any dent in the prosecution story inasmuch as it does not relate to the material aspect of the case. At best, it can be regarded as a minor omission on the part of  the  prosecution  witnesses.  Albeit,  the  informant  (P.W.2) divulges  in  her  evidence  that  in  the  morning  of  the  date  of occurrence at around 9.00 am her husband (accused) came to her father’s house and took her daughter in his lap following which she  (P.W.1)  went  out.  Thereupon,  having  stayed  with  her daughter for a while, the accused slaughtered her (victim) with a blade. Having heard groaning sound, she entered the P.O. room and found that the accused was slaughtering her daughter upon keeping her on a blanket of the cot. In the aforesaid premises, the argument  advanced  by  the  learned  defence  Advocate  on  this count appears to be wide of the mark.

It has also been argued on behalf of the defence that at the material time, the accused was suffering for mental disorder as a result he was unaware of the consequence of his own act. But the defence has hopelessly failed to prove that the accused was a person of unsound mind at the time of occurrence and as such he cannot get any benefit under section 84 of the Penal Code. In this connection, we may profitably refer to the decisions reported in 73 DLR (AD) 144, wherein our Apex Court has observed as underneath:

“19. The plea of unsoundness of mind of the accused- respondent falls within the general exceptions of the Penal Code and the burden to prove such fact lies completely on the defence under section 105 of the Evidence Act, 1872 which provides:

When  a  person  is  accused  of  any  offence,  the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him and the court shall presume the absence of such circumstances.”

In para-20 of the aforesaid case, it was further observed

that:

“20.  In  the  case of  Md.  Abdul Majid Sarkar  Vs State, 40 DLR (AD) 83 this division held “Section 105 of the Evidence Act, 1872 casts a burden upon the accused to prove  the  existence  of  circumstances  bringing  the  case within any special exception or proviso contained in other part of the Penal Code, 1860.” Such view has also been reiterated in the case of Shah Alam Vs State, 42 DLR (AD) 31”

In the instant case at our hand, it appears that the defence during cross-examination of the prosecution witnesses took the plea of unsoundness of mind of the accused. But no evidence, either oral or documentary, has been adduced in the court on behalf of the defence in order to prove that at the material time he was mentally handicapped and was completely unaware of the consequence  of  his  own  act.  On  perusal  of  the  materials  on record, it reveals explicitly that at the time of trial or while the case was pending before the Magistrate court, the accused never took the plea that on the date of occurrence as well as at the material time he was  mentally sick. Under section 84 of the Penal  Code the  defence is to prove  that  the  accused  was  of unsound mind at the time of occurrence which it has failed to establish in this case. Since the plea of insanity or unsoundness of mind of the accused is not clearly and distinctly proved, the accused cannot get benefit of the same nor can he get any benefit as provided under section 469 and 470 of the Code. In view of the  above,  the  argument  put  forward  by  the  learned  defence Advocate falls to the ground.

Contention  has  further  pressed  into  service  that  in  his confession the accused disclosed that he  inflicted 2/3 strokes with blade on the neck of his daughter which does not align with the  post-mortem  examination  report  during  which  only  one injury was found on the neck of the victim and as such the confession cannot be branded as true.

On going through the evidence and materials on record, it appears  that  accused  Abul  Hossain  slaughtered  his  minor daughter with a blade. Therefore, it is immaterial to ascertain as to how many strokes the accused had made on the neck of his daughter. It is true that in his confession accused Abul Hossain gave out that he made 2/3 stokes on the neck of her daughter and further  that  during  post-mortem  examination  one  cut  throat wound on the front of neck of the deceased victim was found extending from left side of neck to right  upper part  of neck measuring  6"  x  1"  with  cutting  of  underlying  muscles,  both common carotid arteries, trachea and oesophagus. Considering the injury found on the neck of the deceased victim, we found no force in the argument advanced by the learned defence Advocate as such the same is untenable in law.

On going through the confession of accused Abul Hossain, it transpires that he tried to give out that at the material time he was possessed by an evil force. But no such evidence was led on behalf of the defence to prove the plea that at the material time he  was  under  an  evil  influence.  Furthermore,  the  facts  and circumstances  of  the  case  also  do  not  lend  support  to  the aforesaid plea of the accused as because from the evidence on record, we found that after committing murder of his daughter the accused tried to flee away from the P.O. house after coming out of the P.O. room while he was besmeared with blood and further that he was caught on chase by the neighbouring people. Keeping the aforesaid in view, the argument advanced by the learned  defence  Advocate  as  well  as  the  plea  taken  by  the accused in his confession cannot also be countenanced.    

Regard being head to the aforesaid discussions and the observations made thereunder, we are of the dispassionate view that the prosecution has been able to prove the charge levelled against  the accused to  a  nicety, and accordingly,  the learned Additional  Sessions  Judge  rightly  and  correctly  adjudged  his guilt  under  section  302  of  the  Penal  Code  by  the  impugned judgment and order which does not call for any interference by this Court.

Now, we can turn our eyes to the quantum of sentence awarded to accused Md. Abul Hossain.

From  the  proved  facts  of  the  case,  it  transpires  that condemned accused Md. Abul Hossain is the father of deceased victim Sumaiya Akhtar (2), who had no knowledge about any earthly matter as because she was an infant of about 2(two) years old. There was no enmity, whatsoever, with the victim infant. Even  though,  accused  Md.  Abul  Hossain  brutally  killed  his infant daughter, Sumaiya Akhter by slaughtering her with a blade like  a  sacrificial  animal.  The  accused  did  not  even  feel  any twinge in his conscience in finishing off the life of his infant child, Sumaiya Akhter who had a long peaceful life ahead of her. The accused deprived of his infant daughter to enjoy the air and ambiance of this beautiful world and therefore, he cannot expect any  leniency  so  far  his  sentence  is  concerned.  Rather, considering the facts and circumstance of the case, we feel that death penalty would be the only appropriate punishment for the ruthless  father  which  will  equally  commensurate  with  the magnitude of the crime committed by him.

Accordingly, the death reference is accepted.

The sentence of death imposed upon accused Md. Abul Hossain is hereby confirmed. The impugned judgment and order of conviction and sentence is upheld.

The  connected  Criminal  as  well  as  Jail  Appeal  are

dismissed.

Send  down  the  L.C.  records  along  with  a  copy  of  the judgment to the court concerned at once. 

Md. Mostafizur Rahman, J.

I agree.